That decisions that entirely wrong have been; but as he has been throughout in practice procedure & law, his conduct was most insubordinate.
Further, that to call attention to the differences by messages publicly sent to the judges, tending to create excitement, and especially by inaccurate and violent speeches addressed to the general public, was insubordination without precedent in the public Civil Service of the Crown.
John Smale, Chief Justice.
THE DAILY PRESS, TUESDAY, OCTOBER 26TH, 1880.
THE BLOCK IN THE SUPREME COURT. Yesterday, after sentencing some prisoners in Criminal Sessions, Mr. Justice Snowden said—I wish to make a public statement with reference to the state of business in this court; therefore, I will read some remarks I have put on paper:
The publication of notices at the door of the Supreme Court on the evenings of Friday and Saturday without the direction of the Chief Justice or myself that matters now pending in the Bankruptcy and Probate Jurisdictions would be heard by the Court on Saturday and Monday (to-day), and the fact that these matters remain undisposed of to the inconvenience of the parties concerned, render it desirable that a public statement should be made from the Bench with reference to the authority the Court has to select the place for hearing—with reference to which, as is now notorious, serious difficulties obstructing the progress of public business have arisen.
The Chief Justice having requested me to investigate the subject, I have done so with much care and now proceed to state publicly my opinion as to practice and procedure in these matters as laid down by positive enactments.
The Chief Justice has acted from the first on the ground that the presiding Judge in Bankruptcy and Probate has authority to sit in Chambers instead of in open Court, and to exercise jurisdiction as fully as in Court in uncontested business, considering such a mode of hearing is generally desirable, and often absolutely necessary, while contested business might more properly be disposed of in open Court.
I am informed that it has been the practice of successive judges to exercise this discretion from the date of the Bankruptcy Ordinance 1864.
The Bankruptcy Ordinance contains no special directions as to where the Supreme Court in Bankruptcy shall hold its sittings, although the English Act (the Bankruptcy Act of 1861) from which it is principally borrowed, makes provision in this respect; but the general orders under the Bankruptcy Ordinance, No. 2, provides as follows: "The place of sitting of the Supreme Court exercising jurisdiction in Bankruptcy shall be the place at which the Supreme Court now holds or may hold its sitting for the general business of the Court."
The Supreme Court was reconstructed in 1873, and the Reconstruction Ordinance, section 1, enacts that "the Supreme Court shall hold its sittings in the present building, or in such other place as the Governor shall from time to time appoint."
The Court, i.e., in this case the Judges, may therefore sit in any part of the building for the despatch of business.
Then by sect. 2 of the same Ordinance, it is enacted that the word "Court" shall mean the Supreme Court and shall mean the Chief Justice and the Puisne Judge sitting together or separately in Court or in Chambers.
If then the Supreme Court may sit in Chambers in its highest jurisdiction by two Judges or by one, and as Order 2, which I have just quoted from the General Rules under Bankruptcy Ordinance, makes the place for holding sittings in Bankruptcy the same as that used by the Supreme Court, it follows that one judge may sit in Chambers in Bankruptcy also.
It has been, I am told, the constant practice of the Chief Justice to hear administrative as distinguished from contested bankruptcy matters in Chambers, except when it has been convenient to take them in open Court.
Speaking for myself, I have more usually taken bankruptcy matters in open Court, although I have often taken such business in Chambers.
I was under the impression that in the absence of express direction in our Bankruptcy Ordinance, it was the more correct practice; when, however, this question arose in its present aspect, I referred to the fountain head and found that in the contemplation of the law as applicable to proceedings under our Bankruptcy Ordinance, the hearing should be in Chambers, although entirely subject to the discretion of the presiding Judge in this respect.
On looking at the Bankruptcy Ordinance section 7, which gives the Chief Justice power to frame rules and orders, I find the following enactment, "Provided always that if any case shall arise which shall not have been expressly provided for by such General Orders, but for which provision has been made in the General Orders framed in pursuance of the Bankruptcy Act of 1861, the Chief Justice may in his discretion apply to such cases any of the General Orders so framed as last aforesaid."
Now, the collection of General Rules and Orders, drawn up, I believe, by the late Mr. Ball, when Acting Chief Justice, and having the force of an Ordinance as having been sanctioned by the Legislative Council, does not contain any order regulating the hearing of bankruptcy matters in Court or Chambers.
I therefore referred to the English Act of 1861, and I found sect. 51 of that Act, which was not adopted into our Bankruptcy Ordinance, provides as follows: "The Commissioners may sit at Chambers for the despatch of such part of the business of their Courts as can without detriment to the public advantage arising from the discussion of questions in open Court be heard in Chambers, and when sitting in Chambers they shall have like power and jurisdiction as when sitting in Court."
On turning to the rules and orders of the English Act, it will be found that rule 17 provides for the business to be disposed of by the Commissioners in Chambers.
The rule directs that the following matters may, unless the Court shall in any case otherwise direct or allow, be heard and determined by the Commissioner in Chambers.
Then follows a list of twenty-one matters which may be thus dealt with, and which are to be, i.e., should be heard in Chambers as a general rule.
I need not enumerate all, but amongst them are to be found, trader-debtor summons, judgment debtor summons, petitions for adjudication in bankruptcy on the application of a creditor, application for leave to commence, prosecute, or defend any action or suit, etc.
Then follows the proviso, "That if in any of the aforesaid matters the contending parties shall all desire that any question be heard and decided in open Court, or if the Commissioner shall be of opinion that any matter before him ought to be so heard and decided, it shall be adjourned for that purpose."
Rule 18 gives a list of eight matters which the Registrar may hear and dispose of in Chambers unless the Court otherwise direct or allow.
Now by the English Act of 1861, there was no Judge appointed in Bankruptcy, and by the interpretation clause, sec. 229, the word "Court" is declared to mean the various Courts having jurisdiction in Bankruptcy: and "Court of Bankruptcy" is declared to mean Her Majesty's Court of Bankruptcy and the Commissioners thereof, who were in fact the judges.
There can be no doubt that the judge sitting in bankruptcy in this Colony has to discharge the duties of a Commissioner, and also those of the Registrar of the English Bankruptcy Courts in some cases; there being no registrar in bankruptcy in this Colony.
The Registrar of the Supreme Court is constituted by the Bankruptcy Ordinance ex-officio Official Assignee, an officer whose duties conflict with those of the Registrar in England.
I may here observe that one of the duties which the Registrar of the Act of 1861 is directed to perform in Chambers is to give the requisite directions for notices and advertisements, a duty which the Court has thought it necessary to take upon itself in this Colony.
It is abundantly clear that the Commissioners were directed to take the matters mentioned in Rule 17 in Chambers, subject to their discretion to take them in open Court, and that the same procedure applies to the Judge in Bankruptcy in this Colony.
This course of procedure has been acted upon more or less by every successive Judge since 1864, as I am informed, and this amounts to an adoption of Rule 17 of the Bankruptcy Act of 1861.
A little consideration will show how important it is that a Judge in Bankruptcy should exercise this discretion with the greatest care.
I will mention only a few instances to illustrate my meaning.
A petition for an adjudication in bankruptcy filed upon apparently good legal grounds, but with a malicious motive, heard in open Court and published far and wide by the press, might do irreparable damage to the most solvent firm, before the debtor could get the petition dismissed on its merits.
A judgment debtor's summons is a yet more dangerous instrument, and may be obtained (sec. 20, Bankruptcy Ordinance) upon the order of any Court having the power to order the payment of money, and this Court making the order may be the Supreme Court sitting in Summary Jurisdiction amongst others.
It is true that by sec. 42 damages may be obtained against a petitioning creditor fraudulently or maliciously filing such a petition; but damages would at the best afford...
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