[certiorari – civil procedure, record of decision – appeals, right to appeal – insolvency]

In re Riley

Supreme Court of Van Diemen’s Land, In Banco

Pedder C.J. Montagu J., 10 May 1842

Source: Launceston Courier, 23 May 1842[1]

            Mr. Stephen, in re Thomas Riley, of Launceston, an insolvent, moved for a writ of certiorari, in order to direct W. G. Sams, Esq., the Insolvent Commissioner, to bring up “the record of decision” (the revocation, namely, of an order of discharge), in order to have such decision rescinded.

            The learned counsel grounded his application upon the affidavit which he held in his hand; and in accordance with the 104th section of the Insolvent Act. The circumstances of the case were as follows:- On the 17th February, 1841, Riley, who was a confectioner at Launceston, being insolvent, applied for his order of discharge, which was postponed for twelve months. On the 17th of February, 1842, he again applied, and obtained an order of discharge; and on the 26th of the same month, he was arrested by parties whose names had been inserted in the schedule, who had had due notice of his insolvency, and who had attended various meetings and proved their debts, which debts were secured on a warrant of attorney duly executed. On inquiring the reason of his arrest, Riley was informed that the order of discharge had been revoked, but he declared in his affidavit that he was not aware that he had committed any act to call for such forfeiture, neither did he know the name of his accuser, nor the reason for which the discharge was revoked.

            Mr. Justice Montagu thought that it would have been better, in the first instance, to have applied for a copy of the proceedings; there was nothing in the affidavit but that the man was in gaol. Was there any mode prescribed in the Act of Council for making the order or for regulating the proceedings of the Commissioner?

Mr. Stephen. - There was nothing to direct the Commissioner how to proceed. By the 19th section of the Insolvent Act, it was competent for any assignee or creditor, within twelve months after the order of his discharge had been granted, to apply for its revocation, upon showing that the order had been wrongly obtained.

            Mr. Justice Montagu. - There was no evidence (by the affidavit) to shew that no application had been made to the Commissioner by either assignee or creditor, neither was there anything to show that there was any irregularity on the part of the Commissioner; there surely ought to be some form, either by petition or otherwise, to get at the proceedings of the Commissioner; they were fighting now with a nonentity. The presumption was, that the Commissioner had done his duty; and it was for the learned counsel to show the contrary; it was too much to drag the Commissioner there without knowing he had acted wrong.

            Mr. Stephen did not call upon their Honors for an opinion as to whether the Commissioner had acted right or wrong, but to place him in a position to bring them before a higher court; he had adopted the only method of which he was aware, but if there were any other he would readily avail himself of it.

            The Chief Justice observed that, according to the common principle of justice, the insolvent should have had some notice of the proceeding against him, and that notice ought to have been personally delivered; it ought to appear on the face of the revocation that the man had been summoned, and in default the order had been revoked.

            Mr. Justice Montagu said that something better than a man’s own testimony was required in a case like that. It was just possible that the Commissioner may have acted legally, and that a notice may have been delivered at the insolvent’s house. It appeared that two Commissioners might form rules for the practice of the Insolvent Court as to the delivery of notices, and it was too hard upon such an allegation to drag up the Commissioner before this court. Suppose it should turn out that the notice had been served at the insolvent's dwelling-house, and that such service was proper? The rule would be discharged with costs. But who was to pay those costs? The general rule was to furnish better evidence than that of a man’s own testimony; and in the present case an application might have been made to the assignee or chief creditor. It was quite consistent with that affidavit that the Commissioner had done his duty, and it was quite a novel practice to apply for a certiorari in the first instance, and not for the Commissioner to show cause why a certiorari should not issue.

            Mr. Stephen begged to direct their Honor’s attention to the clause giving a party the right of appeal. He had taken the only method he could to have the proceedings brought before the court, to place him in a position to appeal.

            Mr. Justice Montagu asked, if there was no provision for the manner in which an appeal was to be made?

            Mr. Stephen replied there was none.

            The Chief Justice saw no objection to grant the certiorari in the first instance; all the Court had to see was, whether the proper proceedings had been taken; and His Honor considered that it would save trouble and expense to grant the rule.

            After some further remarks by Mr. Justice Montagu on the vagueness of the affidavit, and on the want of prescribed form for proceeding, it was arranged to enter an appeal against the Commissioner’s decision, on the understanding that fuller evidence should be produced by a future day.

Notes