I move amendment No. 8 :—
In sub-section (6), line 60, to delete the word " conclusive " and substitute therefor the words " prima facie ".
SECTION 15.
. . . . .
(6) Every certificate of indebtedness shall be conclusive evidence of all matters purported to be certified therein, and any document purporting to be a certificate of indebtedness issued under this section shall, on production thereof in any proceedings to recover the amount thereby certified to be payable, be deemed, until the contrary is proved, to be a certificate of indebtedness duly issued under this section and shall be admitted in evidence accordingly.
. . . . .
(8) If any person—
(a) fails to make any return which he is required by, this section to make, or
(b) makes any such return which is false or misleading in any material respect, or
(c) fails to pay within the time appointed by this section any fee payable by him to the Ministerunder this section,
such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds.
. . . . .
This is one of a series of amendments, and I think a decision on it would cover the other amendments concerned.
Sub-section (6) of Section 15 provides that " every certificate of indebtedness shall be conclusive evidence of all matters purported to be certified therein," and so on. One of the matters which will be certified is the amount of the debt.
As the Minister himself is aware, he has on his hands a number of cases where licensed victuallers under the Slaughter of Cattle and Sheep Bill are contesting the correctness of their assessment for levies on pigs and sheep slaughtered. The Constitution of this State provides that where there is an honest difference between a creditor and a debtor it should be open to either party to go into the courts and get a judicial decision and a judicial assessment as to what is the true sum owing. This provision, however, would entitle the Minister to hand in a certificate stating that the man owes him so much, and that statement would have a statutory effect to bind the judge's decision. I have no objection to his putting in a statement which would be prima facie evidence, and which the defendant would be called on to rebut, but I object to short-circuiting, so to speak, the procedure of the court and denying the debtor an opportunity of making whatever representation he thinks fit in his own behalf to the courts of the country. I ask that the word “ conclusive ” be deleted and the words prima facie be substituted therefor.
Minister for Agriculture
I am prepared to agree to that, but I think there is very little chance of a mistake in this case because you have to get the bacon curer, the Minister's inspector, and the man himself to agree before the certificate can be issued. However, I agree with the Deputy that there might be a mistake and that the words prima facie would be better.
Amendment No. 8 agreed to.
I move amendment No. 9 :—
In sub-section (8), paragraph (c), line 20, after the word " section " to insert the following words :—" unless within the time appointed such person has notified the Minister of the reason of his failure to pay such fee ".
Sub-section 8 of this section provides, among other things, that if a person fails to pay within the time appointed by this section any fee payable by him to the Minister under this section, such person shall be guilty of an offence. That means that the Minister has the right to demand the payment of his fee. The person on whom the demand for payment is served has a right to challenge the correctness of the Minister's account and it is then open to the Minister to issue a demand for recovery of the fees due. The debtor can then go into court and make his defence. If the defence fails, the Minister can recover costs from him under the ordinary law. If this Bill passes in its present form, however, the Minister would have the further right to prosecute the man for having withheld the fee pending litigation and the Minister would also have the right to exact a fine, on summary conviction of having failed to pay the fee, not exceeding £50. I hold that that puts a penalty on resort to the courts, and I, therefore, submit that this penalty should not be exacted if the person notifies the Minister of the reason of his failure to pay the fee in due time and if he does not ignore the Minister's application for the fee.
Minister for Agriculture
I am afraid that the Deputy's amendment would have a very bad effect. It would appear from the amendment that, if the man objects to this provision, he need not pay.
But the Minister can sue him. I take it that the purpose of paragraph (c) is to deal with the individual who ignores the Department and from whom the Department can get no satisfactory answer. I admit that that ought to be punishable, but I hold that if he does not give a good reason for the non-payment the Minister can institute proceedings, in the knowledge that if the man is brought into court, a decree, with costs, will be given.
Minister for Agriculture
Of course, I may say here that, in practice, drastic action is never taken if the man gives any valid reason for non-payment.
Is not that matter left in the Minister's discretion ?
Minister for Agriculture
Well, yes. Under all these Bills it is left more or less to the discretion of the Minister. As a matter of fact, I think that on the whole the Department is inclined to be too lenient. Sometimes, however, the thing goes too far and the money is not recovered at all.
How would Deputy Dillon's words improve the position ?
Well, let us take it that Deputy Belton himself is liable under this Act for a fee of £5 and that the Minister tells him that the fee must be paid before the 1st of May. The Deputy replies to the Minister that he does not owe £5 but only £3. The correspondence drags on all through the month of April and finally the Minister issues a civil bill through the courts. Let us suppose the Minister wins his case. According to this provision not alone is Deputy Belton liable for the £5 and whatever costs there might be, but he is also liable for a penalty not exceeding £50, all because he did not pay the fee in the time specified by the Minister.
That lies with the courts.
He is liable to that penalty.
That is the maximum penalty, but he can be fined a shilling.
That may be so, but why should he be fined at all ? Has he not the right to go to the Minister beforehand ?
Yes, but there is a distinction between this and an ordinary debt. I take it that the idea of this is to have no court business at all.
And that was the very idea that underlay the Land Act of 1933, and the Deputy and I know what has resulted from allowing the Land Commission to issue certificates setting the courts aside and giving them statutory authority to collect debts which other persons thought were not due.
Only for the economic circumstances that section of the Land Act of 1933 would not have the disastrous effects it has.
All I am asking in the amendment is to secure that no man shall be penalised for pleading in the courts of the country.
This amendment means that you are extending an invitation to everybody to write to the Department whether his case is real or imaginary. Everybody more or less would have the right to make some sort of a plea saying that he cannot pay now, or that he cannot pay in six months. The Minister has stated that they have already a discretionary power to a large extent. In addition to that, you are going to issue a further invitation to these people to make all kinds of pleas along these lines.
Is the Deputy of opinion that if a person goes into court in a perfectly legal way to defend a civil bill he ought to be made liable for a statutory penalty for having done that ?
But supposing a person has a genuine case ? They will be paying a penalty if they go into court with a bad case.
It does not matter what case you have if you go into court. The amendment, however, does not alter the power of the court to fine.
The Deputy ought to get this clearly into two different parts. Under Section 15 (8) (c) a penalty is provided for not paying the Minister's claim within the time laid down by the Minister. On the other hand, the Minister has a remedy by ordinary civil bill process to recover any money which he says is due to him by a licensee under the Act. He can sue him in the civil courts in the ordinary way. All I ask is that if a licensee feels that he does not owe what the Minister says he owes, and faces civil bill proceedings, and a decree is issued against him with costs in favour of the Minister, in addition to paying the decree and the costs he will not also be made liable under paragraph (c) for a penalty, because he did not pay the money to the Minister until the civil bill was secured.
I want the Deputy to show me where the addition of his words would not leave the same duty with the justice to fine.
If my amendment is adopted it is a good defence to any case brought under sub-section (8) (c) to say : " I notified the Minister of the reason for my failure to pay, and the reason was that I thought his statement of accounts was wrong, and I challenged him to sue me in the court." The moment he says that, any court proceedings against him under sub-section (8) (c) fail, and no penalty is recoverable from him.
Would not any other argument be considered to be as good a one as the one advanced by Deputy Dillon ? He might say that there was a wet week, for instance. There is nothing to specify the reason of his failure. It renders the other thing farcical.
Deputy Maguire
There is nothing in the section as it stands to prevent a licensee taking a case into court, only the penalty of £50, and it is discretionary with the justice whether he applies it or not.
Why should he make himself liable to a penalty of £50 ?
Deputy Maguire
It is not mandatory on the justice to impose a penalty of £50.
It is mandatory on the Justice to convict him. Suppose I entered into litigation with the Minister of the kind I have described, and the Minister prosecuted me under this, for the first time in my modest career I would be convicted by the courts of the country of having broken the law. I do not mind if they fine me 1d. or £50. I do not want to break the law and I would dislike being held up before the people of the country as a law-breaker.
I think it is only in exceptional cases that that penalty clause will be invoked. Why should not the Minister be empowered to invoke it if necessary ?
I know of a case under the meat scheme where a butcher told me that he received notification to pay £40 for monthly levies. That man only killed three beasts. I know he did not kill more. Whether the notification was for £40 or not I cannot say, but he told me that it was. Had he not a genuine case for protection against being made liable to a penalty ? The same thing may crop up under this Bill.
Minister for Agriculture
I do not think Deputy Dillon's amendment gives very much protection.
I would agree with an amendment to cut out the £50.
Minister for Agriculture
I see Deputy Dillon's point, but I do not think this is very much protection. The Deputy has not as much experience as I have of trying to get a district justice to convict in cases like this.
It is not the question of a penalty that concerns me, but surely respectable men should not be made liable to be described as law-breakers when all they have done is to resort to the courts of the country to arbitrate between them and the Minister on an ordinary contract debt.
Deputy Maguire
Supposing the justice decides the case in favour of the licensee, then there is no judgment marked for failure to comply with the law.
Would Deputy Dillon agree to cut out paragraph (c) ?
I do not think paragraph (c) ought to be there.
That is what I suggest.
I would support that, but I would not support Deputy Dillon in the other.
The Minister wants to get after the people who make false returns.
I suggest to the Minister that he should cut out paragraph (c) and sue any person who does not answer his correspondence within a reasonable time.
Where the law can be invoked, let the law operate.
Minister for Agriculture
I cannot see any objection to this section, but I shall undertake to meet it on the Report Stage.
Amendment, by leave, withdrawn.
Section 15 put and agreed to.