PUBLIC RECORD OFFICE
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PUBLIC RECORD OFFICE, LONDON
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23 July 1909 }
MAURITIUS ROYAL COMMISSION, 1909
Sir L V
DELAFAYE
123462 He is more like a registrar now ?—He is a gistrar in fat
That makes & 12 963 Then we will leave that. very considerable reduction, and that is all shown in yar paper?—Yes, it is all shown
1984 Then the Accountant in Bankruptcy would On that there will be a not be touched?- -No reduction of Rs 1050 when the holder goes (and he will soon go, because he has a personal allowance of R1an that will disappear.
-12,945 You have considered the case of each of the
Yes. clerks in the department ?-
12,965 And you think that what you have suggested there is as much as can be done in the way of saving? -The most that can be done because in view of the suggested additional saving of nearly Rs. 6.000 if the shorthand writer's post is to be abolished and that of the ith class clerk, there will be a very serious
iminution of staf
12,967. Supposing that the arrangement moved in the direction of the abolition of the fourth judge and his clerk, that would make another considerable saving? -That would make Rs. 15,30, because the judge gets Rs. 12,00), and the clerk Rs 3,000, and the messenger Rs. 300, making Rs. 15.300
12,964 Now to come to the real question that is very much before us, that of the possible reduction of the number of judges from four to three. I might ask you, do you know of any other Colony in which the Supreme Court sits in two divisions ?—No, but I do not know what the kind of population is or what are the But I consider feelings of the people in other Colonies.
that in this place it is highly desirable that there should he three judges on the Bench.
12,969. That is a different question -Well, there are two divisions, it is useful when there is a con- gestion of the cause list. At the present time it is a luxury to have two divisions, and perhaps the judges of the Supreme Court have been having two divisions with A view of showing the Royal Commissioners that two divisions are a good thing. I think that has been done for you.
12,970. I suppose the current of business passing through the courts is not as great as it was in former much less. I was telling timea-Oh, dear no:
Mr. Woodcock privately, and I have sent in a report, to which I arthere, that it would he better to have four judges. I think the administration of justice can be carried on more safely with four judges, but if we are in a position that it is impossible to have four judges, the work can be done by three judges with the modifi. cations which I have suggested, and then some of the cases to be tried by one judge--not contested matters, because I do not think it would be a good thing to let one single julge take contented matters, except in divorce cases.
12.971. (Mr. Woodcock.) Have you noticed whether there has been a tendency to a decrease in the work, ur do you consider the present decrease owing to the present depression -I believe that it is due, in a great measure to the present depression-to the state of affairs in the Colony. We are a barometer; when there in work before the court, then harristers make money, und there is money in the Colony.
12,972. Have you noticed whether, in the last few years, there has been a decrease in the court work, 1 quite apart from this particular time P-Quite so.
There may have been believe that is the main cause. other causes, for example, those large establishments, Mugar estates like the Crédit Foncier, have taken to a very good practice of having a standing counsel of the value of Sir William Newton or Mr. Guibert, and all the acts that are prepared by the company are sub- initted to the legal adviser, who puts his advice before them, and thus there are seldom cases in which a faw is to be found and a law suit can be started.
12,973. (Sir Edward O'Malley.) They conduct their Affairs on more business lines P-Yes, they conduct
their affairs on more business lines.
12,974. With regard to the general large movement of decrease, I suppose it in much the same here as it is in the West Indies. There was a time in the old slave time when they were very prosperous, but those times are over?--Yes.
[Continued
12,975. The court as originally constituted, I think. in 1881. consisted at that time of three judges ?—Yes. up to 1*81.
Yes.
12.976. Then in 1881 a fourth judge was added !—
12.977 And this would be, if it did happen, a return to the system prevailing about that time? Yes.
that is 80.
12,978 I have attempted to follow the steps by which the present system was established. I do not pretend to understand who is responsible for it, or with whom it originated. There seem to have been ligger- tions from the Council of Government and then discussions between the Secretary of State and the Governor, and so on, but that has been so since 1881 ?
-Yes.
12,979. There seem to have been two provisions in the legislation of that year; one, that no cause should be tried with less than two judges-Excuse me. before that it was so we never could try a case with one single judge.
LI
12,980. 1 am reading from this report on the Con- stitution of the Supreme Court: "It was in pursuance of these instructions that Ordinance No. 14 of 1881 It is therefore almost was introduced and passed. **superfluous to add that it was in due course approved by the Secretary of State. There are but three provisions of that Ordinance I think it desirable to specially notice, namely, the first three. Article 1 enacta that all civil suits brought before the Supreme Court shall be determined, and all evidence adduced therein shall be heard, by at least (the words are underlined by me) two judges of the Supreme Court at public sittings." That was an enactment of the Ordinance of 1881 ?—Yes.
12.98). Was that merely declaratory of what had been the law before -Yes, it was.
12,982. And the second article declares that it ** shall be lawful for the Supreme Court to sit publicly "in two divisions at the same time for the despatch of "civil business, each such division to be composed of "at least two judges." I do not understand why it was necessary to pass an Ordinance to that effect; it is permissive P-I think it could have been done by a rule of court.
(Mr. Woodcock.) Might not a difficulty have arisen as to which was the Supreme Court if you had two divisions sitting P
(Sir Edward O'Malley.) Sitting in two divisions. (Mr. Woodcock.) I do not know; I only suggest that may be so.
(Witness.) I do not think that is so, because the Bankruptcy Court was a division of the Supreme a division of the Supreme Court and the Assizes was
Court too. I am not prepared to give a reason why it should be so.
12,983. (Sir Edward O'Malley.) Let me suppose now that we are doing without the two divisions, and that the court were to go back to the system of only sitting with one court. The present arrangement is that two judges are necessary?—You.
12,984. I quite understand now what I certainly did not understand until this morning. Your system seems to be very much like the Roman-Dutch arrange. ment in British Guiana. There we tried all civil cases without a jury; you do the same ?—Yes.
in the
12,985. There we tried all civil case Supreme Court, as far as my recollection goes, in the first instance with three judges. We decided all questions that arose therein and the appeal was straight to the Privy Council, exactly as it is here!--- We do not sit here with three judges necessarily.
12,986. Do you see any objection here to the court sitting with three judges to try every case ?—I think it would create some inconvenience in respect of the chamber work, for example.
12,987. Of course, if the court is so full of business that the two things cannot be carried on by the same staff of judges, that would be a difficulty -There is, every day, chamber work, and if the judges are three on the bench, it would be impossible to attend to the chamber work, which was sometimes seriously im. portant.
23 July 1909]
MINUTES OF EVIDENCE.
Sir L. V. DELAFAYE
12.988. Of course, your chamber work may be very much larger in proportion to your court work than it Is under the English system, but I am speaking of Singapore, where we found no difficulty in doing chamber work two or three days a week, hearing summonses and disposing of matters ? You did not sit in the other court, then, on those days?
12.989. You. We did that before or after as the case might be ?-That is to say, at what time?
12,990. We sat say at 11 o'clock, and we disposed of summonses in chambers from 10 o'clock or 10.30. and sometimes after court. We would rise at 4 o'clock and we would dispose of them after that time ?—You see we are peculiarly situated with certain things here. All professional men live out of town during the greater part of the year. The train brings the busi- Suppose the ness men to town about 10 o'clock. attorneys arrive at their chambers at 10 o'clock, and then find there a man who has just arrived from Savanne or Grand Port bringing a case for examina. tion. They may, after half an hour's consultation, have an affidavit of court to be sworn before they can begin the law suit or something like that.
12,991. Then, when we are considering the time you have at your disposal, you say it is a fair thing to consider what time of the year it was ?-In the hot season I do not think you could very well call upon the men of our profession to work later than 4 o'clock, I go early in the morning myself, say, as a rule. because I prefer to have plenty of time in my chambers before the sitting of the court, so I am always in town by 9 o'clock; but my brother judges come by the express train and they are in their chambers by about 10 o'clook, and we leave at 3.50 or 4 o'clock in the afternoon. When you give attention to the caves from 10 o'clock to 3.30 during eight or nine months of the yoar, it is the most that you can expect. The work that we do after those hours would be unsatisfactory work, after we had been sitting on the bench all that time.
the case.
12.992. I can quite understand that; it is generally Then one would look for the time rather to the number of cases that have to be disposed of, the amount of chamber business and the time it takes, and see whether it would not be possible to have some days for court work and some days for chambers P-Yes; that might be no. It may perhaps be satisfactory for you to have three judges to try all ossos-those of course, having nothing to do with the Bankruptcy Court and, say, once or twice a week devoted to Of course there may be cases ahamber business. which require immediate attention in chambers and judges would have to do it.
12,993. I understand from the figures that were put before us when the Procureur General was giving us his evidence, that there would not be really much difficulty in finding time for the court work on certain days and the chamber work on certain other days P— No.
12,994. Allowing, that is, of course, the intervals necessary for circuit, Assise Courts and time for hear ing appeals, sitting as a Court of Appeal from District Magistrates ?—Yes; and then there must be time for the consideration of judgments.
12,995. Time for consideration of judgments in appeal cases ?-You.
12,996. But as regarde civil case tried in the Supreme Court itself, the reserving of judgment would be comparatively a rare matter I do not know that. There are some judges who do not like to decide on the Bench, or even within a short time. Some judges are very fond of writing judgments, and long judgments.
12,997. You see there are three judges sitting together; that is the great thing, you have got all the judicial discussion that you can have ?—Yes.
12,998. Of course it is obvious that there must be cases sometimes in which you wish to consider your judgment?—Yes; I do not know that we have been going more rapidly with three judges than with two.
12,999. No, I do not say that you would?--I do not know that a three-judge court in all omson is tho best tribunal.
[Continued.
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13,000. Now, if you had not three, do you think that one judge would be good?--No, given the men. tality of people of this Colony, I do not think one judge would be good. I would not say that he would not be trusted, but you see if a European of standing had a case against an Indian here, or one of these Arab merchants, and there was only one judge, he would have the idea that he might not be treated fairly. Some of these men, of course, have curious ideas of morality and honesty.
13,001. You do not think people would have con- fidence in the tribunal P-I do not think they would have confidence in a one-judge tribunal.
13,002. The difficulty to me with two judges is that it is absolutely, as far as I know, unknown. Except in the trial of Election Petitions, I do not know of any English tribunal, or any tribunal in any English Colony where the English law prevails, where two judges sit together to try a case?—It has been so here for many years; since the constitution of the court we have had two judges and it does not seem to have worked unsatisfactorily.
13,003. (Mr. Woodcock.) This objection to one judge interests the whole of the Commission, I think, if I may say so. I personally cannot now quite under. stand what the great objection to it is. I quite understand what you have just put before us, but may not it be that one is making too big a concession to the foibles of the people in a matter of that sort; that may not it be your duty, if you will permit me to say so, to educate them out of a view of that sort P-I am afraid the feeling is very strong here against a one-judge tribunal.
13,004. (Chairman.) Has it got any ground?—I do not think so.
13,005. Then why do you take any notice of it!—I do not think that I have taken notice of it, because 1 have not had occasion to, as we have never had a one- judge tribunal here.
13,006. One judge does often sit, does he not ?— At one time, for small matters we had what was called a Bail Court. There was only one judge sitting, who took cognisance of all matters not exceeding 1001. without appeal, and he had an appellate jurisdiction from District Courts and Stipendiary Courts. The magistrates had not the wide jurisdiction they have now; they could judge cases only up to Rs. 500 and the Bail Court took cases above Rs. 500 to Rs. 1,000, and there was only one judge sitting. There was a feeling of discontent: sometimes a judge was a very weak judge; sometimes he was not an intelligent judge, and sometimes he was believed to be a partial judge. The whole of the question was raised through a judge, who was Mr. Colin. He was, I believe. one of the most impartial judges we have had; I had a great admiration and great respect for him, but then he had a son-in-law who was at the bar, and he had two brothers-in-law who were attorneys with large practice. The moment the gentleman, Mr. Chastellier. married his daughter he got into a large practice naturally enough, because the two brothers of Mr. Colin, being attorneys, they entrusted their cases to him. He was a clever man, too. Then there was a rush to the chambers of that gentleman. I believe Mr. Colin had never given any cause for suspicion; he was a very able and clever judge, and, to my mind. very impartial. The attorneys, the brothers-in-law. were clever people, one of them was Mr. Ritter, whom you had before you the other day, and the other. Mr. Colin, and they prepared their canes vary ably and they were entrusted by honourable people, by honest people and merchants, with cases that were good or justifiable cases.
18,007. (Mr. Woodcock.) Do you think that, perhaps, rather heightened the inclination to suspicion that was already in the minds of the people --I think so, I think that was the determining osuse of the whole movament. 18,008. We had the same difficulty in the county courts in England, and the rule has been laid down by the Council that regulates our profession in England— it is not a law that no man must praction before his father in his father's court? —We dổ it. I have a sou at the Bar, and I have never heard him speak,
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