MAGISTRATE'S STAND

Evening Post, Volume CXXVIII, Issue 108, 3 November 1939, Page 8

MAGISTRATE'S STAND

PRINCIPLE AT STAKE

LEGAL PROCEDURE

JUDGMENT SUMMONSES

The action of the Department of justice in issuing to Court clerks a circular containing instructions, contrary Jo the decision of a Magistrate, was criticised by Mr. J. H. Luxford. S.M., when the applications for leave to issue judgment summonses came before him iri the Magistrate's Court today. The Magistrate refused to deal with the applications, and although expressing the opinion that the Court's refusal to deal with them would be unfortunate for solicitors, stated that an impasse had been created.

The position was created as a result of the institution of the Courts Emergency Powers Regulations, 1939, concerning which the method of procedure has been the subject of uncertainty.

"The Department has apparently seen fit to attempt to overrule the judgment of this Court by giving specific instructions to the Clerk of the Court not to do what the Court said was lawful for him to do," said.the Magistrate. "The Clerk of the Court was bound to obey the direction of the Department, namely, riot to accept the application foria judgment summons until leave of the Court had been obtained.

"However, I propose to follow Mr. Goulding's judgment that such leave is not necessary, and therefore I refuse to deal with such applications.

"This will be unfortunate in that the solicitors will be unable to issue a, judgment summons without making an application for leave, and on coming into Court in support of the application be told by the Court that the application will not be dealt with. That course creates an impasse which can only be removed either by the Department withdrawing its instructions from the Clerk of the Court or the interested party obtaining, a mandamus in the Supreme Court on the ground that the Magistrate's ruling was incorrect.

"However, a point of principle is involved, and I propose to administer the regulations in accordance with Mr. Goulding's judgment, and not in accordance with the Department's circular." The position arose when Mr. A. W. Free appeared on an application for leave to proceed further on a judgment in the general terms of the regulations, and inquired whether it were necessary to specify in the application the step proposed tc be taken, and incidentally submitted that in line with a decision of Mr. A. M. Goulding, S.M., the application could not be made until the judgment debtor was going to take the final step to execute any order or avail himself of any legal remedy on execution.

An application made immediately afterwards met a similar fate, notwithstanding the fact that Mr. C. J. O'Regan who appeared for the judgment debtor, was prepared to consent to 'an order limited to one particular form of process.

Mr. Goulding, in his judgment, held that the issue of a judgment summons was not proceeding to execution in enforcing a judgment. On, however, a judgment order being obtained, the application to have a debtor imprisoned in pursuance to the order became an execution, and leave to the Court at that stage must be obtained "before the warrant of committal could he issued.