SUPREME COURT—IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5509, 22 November 1878, Page 3

SUPREME COURT—IN BANCO.

. Wednesday, Noveubeb 20. EE DEBTORS AND CREDITORS ACT, AND RE riSHESDEN. Tills . case had bean beard at Dunedin and judgment reserved. The judgments of Mr. Justice Johnston and Mr. Justice Williams were read os follows : Mr, Justice Johnston ; In this cose it ap,pears that a petition by creditors of John Fishenden, intituled in the District Court of Western Otago, holdeu at Invercargill, was presented on the 10th day of Jane to the Clerk of the Court, who on the same day issued a summons calling on Fishenden to appear on the 12th day of June, and on the same 10th day of June he adjudicated Fishenden bankrupt, having dispensed with service of the petition and summons. A rule nisi has been granted calling upon the Clerk of the District Court and the petitioners therein to show cause why a certiorari should not issue calling upon the clerk to return to the Supreme Court the petition, the summons, and the order of adjudication, and all records and papers; and why an' Order should not be made as to the costs of the application; and why in the meantime the proceedings should not he stayed- on the ground that the clerk of the District Court had no jurisdiction to adjudicate, and that the several documents are inoperative and bad. The first question which arises in the case refers to the jurisdiction and authority given to Clerks of the District Courts under the Debtors and Creditors Act, 1878. The clerk is said to have acted in this case by virtue of the 12th section of the statute. It was contended on the part ef the bankrupt that this section can only apply to the Registrar of the Supreme Court ; inasmuch as it would be absurd to suppose that it was the intention of the Legislature to give to Clerks of the District Courts and their deputies all the powers possessed by the Judges of the Supreme Court, except the power of hearing appeals. But I cannot, on careful consideration of the section in question; and others along with the interpretation clause, come to any other conclusion than that those powers have been actually conferred upon the clerks. The 7th and Bth sections of-the Act confer the jurisdiction on the Supreme Court and the District Court, and indicate its extent. The 11th section pro- . vides that the Judge “of the Court” shall have, and may exercise at chambers, all or any of the powers of the Court as he shall think fit, and by the interpretation section “the Court ” is to mean the Court having jurisdiction under the Act; and therefore section 11 includes the Judge of the District Court when that Court has jurisdiction. Then section 12 provides that the Registrar may during the vacation, or during the illness or absence from any other cause of a Judge of the Court [and that must meanof the SupremeCourtorDistrict Court, as the case may be], act for such Judge with all the jurisdiction power and authority of such Judge, except as to bearing appeals under this Act. Now, by the interpretation clause “ the Registrar ” is to mean and include the Registrar of the Supreme Court, or [which I presume must mean and] the Clerk of the District Court having jurisdiction as hereinafter provided, or the deputy, for the time being of such Registrar or Clerk. It would therefore appear, however astonishing it may seem, that power has been given to the Clerk of the District Court, or his deputy, to exercise the same powers as a Judge of the Supreme Court, except on appeals. As far, therefore, as concerns the competency of the clerk to adjudicate, there is no jurisdiction, for it is admitted that the Judge was absent from the place when the petition was presented. With respect to the subject and object of the petition, there is no objection to the jurisdiction, and with respect to the locality of jurisdiction there is no objection, as Fishenden is alleged to have resided and carried on business within the district of the particular District Court fur three months next before leaving the colony, which is sufficient, under the 41st section of the Act, to give jurisdiction, and it was clearly within the power of the clerk having jurisdiction on the subject to decide on a matter of fact that an act of bankruptcy had been committed. But it is urged on behalf of the applicant forthe certiorari that, although in all these respects the Clerk of the District Court may have had jurisdiction, he had no power to adjudicate without issuing a summons, and without proof of the service of such summons. The 30th section of the Act provides that a creditor or creditors to the amount of £SO may present a petition to the Court; and proceeds to enact: “A summons shall thereupon be issued out of such Court calling upon the debtor to appear at such Court ou some convenient day appointed by the Registrar, and show cause why he should not be adjudged bankrupt.” Then the 32nd section enacts that a copy of such summons, and of- such petition, shall be forthwith served upon the debtor, either personally or in such other mode as may be prescribed, or may in any particular case be directed by the Court. Then the 33rd '■ t section provides that the Court, at any time before the summons is disposed ef, may summons witnesses and examine them ; and the-34th section provides that the proceedings on such summons shall be the same in all other respects as on any summons to show cause, issued by the Court. By the 3Sih section the Court, after hearing the evidence on behalf of the parties, if satisfied that the debtor has committed ah act of bankruptcy, and that be is indebted to the petitioners in £SO or more, shall adjudge the debtor bankrupt, and fix a day and time for him to appear and be examined. The question now arises on the facts ~ as above detailed, whether under the section of the Act above mentioned (for none other seems applicable), the clerk had power to adjudicate on the case. - It may be assumed that the clerk had power to determine upon evidence of service of the petition and summons whether the service actually proved was good service under the Act, and that an erroneous decision on that point would not make the adjudication void or impeachable, and that service according to any mode prescribed generally, or in the particular case directed by the clerk might have been sufficient; and that it was for the clerk to decide upon such sufficiency • but I cannot see how it would bo competent for him to dispense with any service of the petition or summons. The presenting of the • petition, and the issuing of the summons, and the service of both in some way are evidently treated by the Act as indispensable conditions precedent to the_ exercise of the power of adjudication, The issuing of the summons without its being served could bo of no avail whatever, and I cannot see why jt should have been fissued at all, if servipo of it was dispensed with. If it had' been intended to give the several courts, .judges, registrars, clerks, and deputies the power of adjudicating a njan a bankrupt who is absent from the _ colony, without any kind of service of a petition or summons, the Act would probably have so provided in express words. I think the clerk was bound to direct

some mode of service other than personal, such as service at the last place of abode, or affixing a copy of the summons in some conspicuous place, and that in the absence of proof service he had no right to go on to adjudicate. But the a ljudication was not only defective in this respect, but it was at variance with the terms of the summons. The adjudication was made on 10th June, the summons was of the same date, and it must be presumed that it was issued before the adjudication, but it gave the party sought to be affected till the 12fch to appear and show cause against the adjudication, and in spite of that the adjudication was made forthwith. Such an adjudication, there.fore, if regularly impeached could not possibly bo sustained, but with respect to the proceedings now before the Court, viz., an application for a certioraH to bring it up to be quashed or got rid of, the next question arises, viz., whether the adjudication was null and void, or only voidable, and whether it can now bo avoided. It has been contended that a case is not a proper one for certiorari where there is some other remedy, and that in this case there might have been an appeal to the Supreme Court or an application to the Judge of the District Court to discharge the order of adjudication. The power of appeal from the District Court to the Supreme Court is given by the 16th section of tho Act, and although the time for appeal is limited by section 17 to 20 days in ordinary cases, yet it is provided that tho Court to which the appeal is made may allow an appeal to be commenced and prosecuted after the expiration of that time. As regards the power of a Judge of the District Court to discharge or vary an order made by the clerk, it has been contended that tho 14th section, which says that any order made by a Registrar at chambers as aforesaid may be discharged or varied by a Judge at chambers or the Court, applies only to section 13, which unquestionably is limited to the case of a Registrar of the Supreme Court sitting at chambers in his own right for certain orders under that section, and not in the absence of the Judge only ; but I am of opinion that it must apply also to a Registrar of the Supremo Court and a Clerk of the District Court acting under section 12 in the absence of the Judge, in pursuance of the provisions of section 11, enabling the Judge to exercise at chambers all or any of the powers i of the Court. The applicant, Flshenden, therefore, might have first applied to the Judge of tho District Court to discharge the rule made by the clerk at chambers, or he might have applied to the Court for leave to appeal; and I do not think that the proceeding by certiorari is the most appropriate and convenient; if applicable at all, and if the Court has any discretion in the matter, and is not bound to grant it ex dchito justitice, I think it ought not to grant it. Now, it seems to me that the right to certiorari , when there are other modes of remedy, is not strictly ex dchito justitice, even though there may be such defect of jurisdiction or fraud as would make it competent for the Court to grant the writ even if taken away by statute. But I have come to the'conclusion that this case cannot be held to come directly within the decisions in the case of the Colonial Bank of Australia v. Willan (L.R. 5 P.O. 417), so much relied on at. the argument, where it was held in the case of a Court properly deemed an inferior Court, even where certiorari was expressly taken away by statute, it would lie where the judgment was manifestly fraudulent, or there was a manifest defect of jurisdiction. (See R, Bradlaugh, L.R. 3 Q.B.D. 509, last No.) There was no suggestion of fraud in the present case, nor was there manifest defect of jurisdiction on the faco of the adjudication, although there may be manifest error in the exercise of the jurisdiction. But there is the further objection to the issue of the certioraH , founded upon the 39th section of the Debtors and Creditors Act, the language of which seems exceedingly, strong 44 Subject to appeal tho order of adjudication shall be final and conclusive with respect to the validity of the adjudication, aud to the existence of all requisites thereto, and the order shall not be liable to be disturbed or impeached at law or in equity, or otherwise, on any ground whatever, nor shall any of the requisites to adjudication be disputed or be required to be proved in any action, suit, or proceeding ; and accordingly, on proof of the adjudication, the debtor shall, in all Courts and to all intents whatsoever, ho conclusively deemed to have been duly adjudged bonkrupt, bo deemed to b© a bankrupt, unless and until it is shown that the adjudication has been reversed on appeal.” Even this strong language would not prevent the adjudication from being impeached if it had been procured by actual fraud, and I have seriously doubted whether a case of manifest defect of jurisdiction within the scope of the case of the. Colonial Bank of Australia v. Willar ought not to be put in the same category as cases of fraud. But, upon the whole, I am of opinion that the error in this case occurred in the exercise of a jurisdiction which the clerk actually possessed, and that it might have been remedied by motion to rescind, or by appeal; and that the 39th section of the Act precludes any inquiry now into tho existence or regularity of the proceedings which the statute makes necessary in order to procure an adjudication. Eor these reasons lam of opinion that this rule ought to be discharged with costs. Mr. Justice Williams: X concur with what has been said by my brother Johnston as to the power of the clerk of the District Court to make an adjudication in the absence of the Judge. I think therefore that the tribunal by which the adjudication was made was a properly constituted tribunal, and that it had jurisdiction to enter on the inquiry. The other circumstance which was relied on to show a want of jurisdiction was that there was no service of any summons on the debtor. Whether or no a summons had been served was, in the language of the judgment in tho Colonial Bank .of Australasia v. Willan, a fact to be adjudicated upon in the course of the inquiry. It is said, however, that the Court admittedly proceeded knowing that no service had been effected, and that service of some sort or another is a necessary preliminary to an order of adjudication. In that I entirely concur, but it does not necessarily follow that this Court should therefore interfere by certiorari. In the first place the debtor has, as has been pointed out by my brother Johnston, a complete remedy by appeal. In the next place, I think that the clear intention of the 39th section of the Debtors aud Creditors Act, 1875, is to make the order of adjudication final, subject to appeal as to the proper conduct of the enquiry, and as to the existence of the facts to be adjudicated upon in the course of the inquiry, where the Court had been properly constituted, and where a petition had been filed in Court. If this construction is correct, had the order complained of been made in this Court, we could not have set it/ aside ; and I do not think we should interfere summarily with tho order of any inferior Court having concurrent statutory jurisdiction, except upon grounds upon' .which we could have reversed our own order. Eor these reasons I think the rule should be discharged. Rule discharged with coats. Leave to appeal granted,