PUBLIC RECORD OFFICE
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C.O. 882
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PUBLIC RECORD OFFICE, LONDON
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23 July 199
MAURITIUS ROYAL COMMISSION, 1909-
Sir LV DELAFATE.
Twentieth Sitting.
Friday, 23rd July 1909.
At The Castle," Beau-Bassin.
(7.)
[Continued.
His Honour Sir L. VICTOR DELAFAYE, called in and examined in private 12,909. (Sir Edward O'Malley. We have read your answer to the questions and also the memorandum May I ank which you were good enough to send us you are you acquainted with the English system of procedure-1 cannot answer the question in a general way like that. We have much of the English procedure that has been introduced into our system here for xample, we have the procedure on the law of evidence, but then we have a Code of Civil Procedure for our. selves, for our Courts, the French Code.
12.923. Did the Order in Council lay down the number of judges, and so on? The Order in Council ways one chief judge and two or more puisne judges.
12,924. That is the Order in Council upon which you rent? Yes.
12.910 I understand that in the French system there is the same distinction that we have in our English system. the Court of First Instance and a Court of Appeal? I do not know that we have a Court of First Instance now; we had formerly. We
have now the County Courts that have taken the place of the Court of First Instance for many purposes, and we have a judge in chambers who caries with him the power of doing what the judge of First Instance formerly did.
12.911. I was rather thinking of the trial of cases, the first trial; the nisi prius trial. You have that system. You have the cases tried in the first instance by two judges ?-There is no appeal from that except to the Privy Council in matters exceeding Rs. 10,000.
12.912. Is there no appeal from the decision of the two judges sitting as a court ---No, unless in cases exceeding Rs. 10,000, then the appeal is to the Privy Council.
12.913. When it is under Rs. 10,000 there is no appeal-It is final.
12.914. Unless with special leave from the Privy Council, that is the rule of the Privy Council, that they can always give special leave to appeal -Yes.
12.915. You cannot do that; there is no obligation on you to give special leave to appeal -No, I do not think so.
12,916. Then I understand that in all cases tried in the Supreme Court the Appeal is direct to the Privy Council Yes, the appeal is direct to the Privy Council.
12.917. Therefore the Supreme Court does not sit Ba Court of Appeai at all ?—No.
12,918. From its own Judgment -No; it has an appellate jurisdiction.
12.919. It has an appellate jurisdiction from inferior courts, but of course it has simply a jurisdiction in the first instance with an appeal direct to the Privy Council P-Yen.
12,920. What is the framework of law upon which the court resta at present; what are the ordinances or rules, and so on, which regulate its structure and pro- opdure-The basis of our system is the French Civil Cod We have the French Code of Civil Procedure and we have the Code of Commerce, but these have been much modified by local ordinances. Some of the subjects have been altered altogether; others modified. but the main system has remained, that in to say, that our court is specially guided by the French principles of French jurisprudence.
12.921. The law you administer is French primarily ; your common law is French ?—That is so.
12,922. What I rather meant was this-the consti- tution of the court. Is the court constituted here by
a local Ordinance ?—No, it was constituted by an Order in Council.
12,925. Excepting for modifications, which we shall deal with presently, that is the constitution, that is the basis of the law upon which the court rests? -Yea
12.926. Then do you regulate your procedure or be Hittings, distinguishing between cases which may taken in chambers and cases which must be taken in open court?-Yen.
12,927. Between cases which require two judges and cases that may be dealt with by one judge, cases that may be dealt with by a master and cases that must go to a judge, and so on; are all those matters regulated by Rules of Court ?--It is a different juris- diction. For example, a judge in chambers can try only certain matters which are defined by an Ordinance; the schedule to an Ordinance rather, if not contested; but if the matters are contested, and one of the parties wishes them to be referred to the court, the judge has to make a reference and cannot dispose of them.
12,928. Therefore there is a certain definite juris- diction provided by Ordinance ?-Yes, there is a definite jurisdiction provided by Ordinance.
12,929. And where the Ordinances are silent, J suppose you regulate what is left by the Rules of court !-Yes.
12,930. Then for the modification of your court, what you would require would be an Ordinance to amend existing Ordinances hearing on whatever point might be affected, and possibly Rules of Court in other cases P-What do you mean by modifying the constitution?
12,931. You tell me that the constitution of the court resta partly upon Ordinance, and, first of all, upon an Order in Council P-Yee.
12,992. The Ordinance, of course, is superimposed upon the Order in Council ?—Yes.
12,933. You said that there were several Ordinances, I think ?--Yes.
$0.
12,994. And they had, to a certain extent, modified the constitution of the court?-I cannot say that it is The Ordinance that is relative to the duties of a judge in chambers is an Ordinance which transfers to the judge in chambers what formerly was the juris. diction of the judge of First Instance.
12,985. That is a particular interference, so to speak, with the Order in Council ?--Yee.
12,936. Are there other interferences by Ordinance of a similar character?-No.
12,987. Then the Court still stands; with that exception it is based upon the Order in Council, and its procedure in determined by its own rules ?—Yes, hy local Ordinance or Rules.
12,988. If you want to vary your procedure, or to adopt a new procedure, it might be that you will find it necessary-I mean any detail of new procedure-to have an Ordinance for that purpose P-It might be. you, but for ordinary matters, matters of administra- tion, of course there are the Rules. We have power to make rules for the administration of our Court and the businesA.
23 July 1909.]
MINUTES OF EVIDENCE.
Sir L. V. DELAFAYE
12,939. Are your rules laid on the table of the Legislature They have to go to the Secretary of State to be approved.
12,940. That is to say, by an Order in Council — No The Rules of Court that we make we have promulgated in court and they are published in the Government Gazette, and then copies are sent to the Governor, who forwards them to the Secretary of State, and they are only confirmed on his approval.
12.941. The Ordinance provides for that ?--Yes. 12,942. That is a novel feature, I think -Our rules are not definitive unless they are approved by the Secretary of State.
12,943. (Secretary.) Technically it is the King's approval? Yes.
12,944. (Sir Edward O'Malley.) What Ordinance is it that provides for that?-1 do not remember now; you see we are so accustomed to that sort of thing.
12,945. I know you are here apparently?-But I do not remember exactly what the number of the Ordinance is. I could let you know if it is important, but, as a matter of fact, it is so; we invariably forward on the rules to the Governor; he sends them to the Secretary of State, and it is only when they are returned that we are informed they have been approved.
12,946. They require approval. It seems so extra- ordinary; I never heard of Rules of Court requiring the approval of outaide authority —It is so.
12.947. You have given a description of the various officers of your court, and the duties that they dis. charge, and you have made certain recommendations or certain suggestions with regard to the reduction of the establishment P-Yos.
12.948. You say, "I consider that it is impossible to reduce my establishment vote by a substantial sum. The Supreme Court has, since 1891, as may be seen by the annexed table showing the personal emoluments in my Department for the years 1891, 1900 and 1909, generously contributed its share towards the reduction of the expenditure of the Colony," and so on. "The only reduction I suggest in the staff of my department is: (1) Abolition of the post of shorthand writer"?-Yee.
12,949. How did that shorthand writer come to be appointed -At one time it was found necessary or desirable, when we could afford it, to have a shorthand writer sometimes to take down the orders that were read in court that might embody some principle of law, which it was good to retain and in very long cases to take down the evidence in shorthand, in order to simplify the work.
12,950. Was that done by the officer of the court at public expense ?-Yes, Mr. Bennett was appointed to that post and he is, at the same time, discharging the duties of shorthand writer to the Council of Government, so that twice a week, on Tuesdays and sometimes on Fridays, he is employed by the Governor in the Council and he takes down dobates in shorthand. 12,951. He stands on your establishment for Rs. 2,500 P-Yes, and he is absolutely useless; it is a sinecure.
12,952. I know of no such case anywhere else?- Yes, it is a sinecure. I have no hesitation in thinking that he may be dispensed with without any incon venience.
12,953. Then the abolition of one of the posts of 6th class clerk in the Master and Registrar's office. That in practically arranged for?-Yes, it is. Some time ago I told the Governor that whenever I saw the chance I would abolish the poet, and, in fact, I left it unfilled for the last 15 or 18 months, and it is only recently that the gentleman who holds the port, having been sent to the Colonial Secretary's Office to do some work there, having no more to do, has returned to us, but in the meantime another gentleman who has occupied a similar post has taken leave with the intention of settling in Europe, so that at the expiration of his leave, the post will be abolished. I should like in this regard, if I may be allowed, to make another suggestion. I think that we may make a great saving by abolishing the post of Master and Registrar.
[Continued.
OF
19.954. Du you mean altogether? Yes, altogether the work for the master and registrar in the Bankruptcy Court, because I proceed upon the assumption that it is possible that you will come to the conclusion that one of the judges should be abolished; then, as to the work of the master and Judge in bankruptcy, of course if you abolish the post of Judge in the Supreme Court. it is indispensable that you should send back the bank- ruptcy work either to the master or to the senior district magistrate, as was formerly the case, for we took over, at one time, the work of the Bankruptcy Court in order to enable the then Governor, Sir Charles Bruce, to amalgamate the offices of master and registrar. We did not think it was possible, the bankruptcy judge having the same rank as a judge of the Supreme Court, to make him the registrar of the court, and then to be, at the same time, a judge holding the same rank as our selves, so I told the Governor we could accept to take over the bankruptcy work and then he could amalgamate both the offices of master and registrar, but if you had only three judges it would be impossible to keep on the Bankruptcy Court. Then I would suggest that the work of the master in bankruptcy do go to the senior magistrate. In town there are three magistrates, ne you know, the other two might aasist the senior magistrate in the work of magistrate, helping him whenever he was acting as master or judge in bank- ruptcy. Then I would suggest a very slight increase of salary, say, Rs. 600. I have prepared a scheme of all this as a suggestion for you to deal with.
12,955. (Mr. Woodcock.) You say the senior magis- trate of Port Louis P-Yes. There are three magistrates, but then in order that the saving be practically realiseil, Mr. Galén, the acting holder of the post of master and registrar, would have to be appointed senior district magistrate, because otherwise you would have to pro- vide for him. Then Mr. Galóa, if he be appointe:1 senior district magistrate, would receive the actual salary of the office, Rs. 6,000, and an increase of salary of about Ra. 600, plus personal allowance, Rs. 1,400, making Ra. 8,000, as it could not be less than an amount equal to his salary of Rs. 8,000.
12,956. (Sir Edward O'Malley.) Is this office vacant at present, the office of senior magistrate --No, it is not vacant, the senior magistrate would have to be appointed elsewhere, because there are two or three magistrates who, in my opinion, would do much better pensioned off than where they are. The Procureur General, I believe, would give you the names.
12,957. (Mr. Woodcock.) He would still have time to do some work as magistrate P-Yes,
12,958. The bankruptcy work would not take up the whole of his time ?--There are times where there The is absolutely no work in that Bankruptcy Court. Judge in Bankruptcy sits on Mondays, and he is generally free at half-past one. There are times when there are heavy bankruptcies, and he may sit twice or, at the most, three times a week.
12,959. Perhaps you will allow me to exhaust this point-Of course we would require someone to do the work of the Master and of the Registrar. Mr. Bathfield, who is the chief clerk, actually would be appointed to do the work in the registry and the other clerks as I put them down would have to be transferred, because there would be less work, of course, in the ofloe, and that would leave an immediate saving in that office of about Rs. 5,000, and things would perfiaps work better and more satisfactorily than they do now, because the master and registrar has nothing to do.
12,060. (Sir Edward O'Malley.) Then the new officer who would take the duties of the Master and Registrar would, of course, perform the duties of the registrar in court? No. The gentleman who takes the duties of the Master would be the senior district magistrate, but the Master has no duties in court; the chief clerk would be made Registrar and would perform the duties in court, which he is now performing, because we have a Master who thinks that it is below his dignity to be in court.
12,981. Of course the old Master used to be on the bench -Yes, the Master here has not the same position as the Master at home.