THE INDEPENDENCE OF THE JUDGES.

Tuapeka Times, Volume XXVII, Issue 4214, 19 June 1895, Page 6

THE INDEPENDENCE OF THE JUDGES.

The Victorian Government called upon Judge Molesworth to explain whether in his observations on the Davies case he intended to convey that "political influence or political pressure had been exerted upon you in your judicial position by any Government, or any member of the Government " ; if so, to specify the instances ; to say whether he intended it to be understood that he had been harshly or unjustly treated in consequence of any judicial act by him ; and to say if he felt sufficiently independent to perform his judicial functions under existing conditions. The judge made the following replies : — My primary object was to call the attention of the Government, members of both Houses of Parliament, and the public to the unsatisfactory and dependent position of the judge of the Insolvency Court, Melbourne. I intended to convey that it is for the public interest and for the interest of those who are great sufferers by the insolvency of members of Parliament, or their near relatives, that the judge of the Court should be as independent as a judge of the Supreme Court now is. My words also mean that when any member of the public is engaged in litigation with a member of Parliament, opposing his certificate application or otherwise, he may feel and be satisfied that the judge is quite independent of all political influence. My words also mean that it is not for the public interest that the judge of the Insolvency Court should be in such a dependent position that there would be reasonable ground for the public to fear that in doing what he believed to be his duty he would or might be acting against his own interests by offending iufluential members of Parliament. Some extraordinary cases have of late years come before the Court of Insolvency. A gentleman who was Premier of Victoria, Treasurer of the colony, and at one time our Agent-General in London was an applicant for a certificate of discharge from his debts amounting to over £94,066. Another gentleman, who had been Speaker of the Legislative Assembly, sought a discharge from debts amounting to £281,086. Other cases of certificate applications by prominent members of Parliament might be mentioned. In several cases members of Parliament have secretly compounded for the payment of large sums of money. I take from the Court records the liabilities of some members of Parliament who thus compounded with their creditors under section 154 of the Act. The amounts are as follow (leaving out shillings and pence) :— £27,035 ; £43,696 (first composition), second composition of the same person, £73,557; £73,735, £95,889, £548,028, £1,520,175. I need not mention the amount of the compositions. These figures will give some idea of what may be the duty of the judge of the Insolvency Court, Melbourne, in dealing with some members of Parliament. In the last case mentioned, as the matter afterwards came before the Court, I do not refrain from mentioning the name. It was the case of Mr B. J. Fink, and in that case an application was made to the Court to set aside the composition as a fraud on creditors. The decisions of the Court affect in cases like these not only the financial but the social position of the applicants, and are far reaching also as to the general public. Members affected have in some cases relatives, partners, and friends in Parliament. The judge has to decide all cases without the intervention of a jury. What might some of the ruined sufferers by these insolvencies say, if the dependent judge decided in favor of the member of Parliament, and the independent Supreme Court Bench reversed his decision ? On this all-important public question of the independence of the judges of the Insolvency and County Courts I wrote two letters, one to the Hon. the Premier on the 13th August, 1592, and one to the Hon. the Solicitor-General on the 22nd August, 1892. A statement dated 13th August, 1894, signed by all the County Court judges, was presented to the Government through the Hon. the Solicitor-General. That statement was also brought under the notice of the present Solicitor-General. To that statement and protest no answer has been given up to the present time. It quotes some words of the late Mr Justice Molesworth in the case of the Qtieen against Rogers, ex parte Lewis (4 Victorian Law Reports, page 364). They are as follow :—": — " There is another consideration in favor of security of tenure to judicial officers : that they should be free from the dictation of persons having political power and having no motives swaying them in legal contests in which such persons are engaged." Those are words of a wise, fearless, aud a great judge, and describe in words more forcible than mine the present dependent position of the Insolvency and County Court judges of Victoria. Fixed tenure without a fixed salary is, as pointed out in the statement above referred to, illusory and futile. In answer to question No. 2, my answer is No. In answer to question No. 3, 1 never stated that I had been harshly or unjustly treated in consequence of any judicial action by me. I did, and still do, feel aggrieved by being treated as if I had been a malingerer when I obtained three weeks' leave of absence last September, being at the time of the application sent in on my behalf so ill that I was unable to write. If the Government think fit I have no objection to the correspondence j on this subject, and to all my correspon- | dence with either the Solicitor-General or with Mr Akehurst (who wrote on behalf of the Solicitor-General), being published. The first step in the direction of removing me from Melbourne was taken by the j Hon. the Solicitor-General last December, as appears by a letter from him to me, dated December 4. It is unnecessary for me now to state why that intention was abandoned. The correspondence will throw some light on that question if the Government see fit to publish it. But whether I have been treated as a public servant in my position should have been treated, whether I have been treated, for example, as any Minister of the Crown (absent from duty on account of illness) was ever previously treated, is, comparatively speaking, a small matter in comparison with the far more important public question raised by the County Court judges on the 13th August, 1894, and by me, both in my previous correspondence with the Government in August, 1892, and also by the remarks that I made when Mr Davies's case was before me. I should be very sorry indeed that any real or supposed personal grievance of mine should divert the attention of the Government, the attention of members of Parliament, and the attention of the public from the great and vital question of the pure administration of justice, not only in the Insolvency Court of Melbourne, but in the Insolvency and County Courts of the Colony of Victoria. As to question No. 4, if Parliament and the public are satisfied to leave me in my present dependent position, I shall endeavor to do my duty, though I may be acting against my own interests, but in certain cases that come before me there is good ground for believing that the public who are sufferers and litigants where members of Parliament are concerned may not believe that the judge is in such a position as to be able to dispense impartial justice without fear, favor, or affection. I am sure, sir, when the attention ot all who wish the administration of justice to be pure and above suspicion is called to the

g resent dependent position of my brother ounty Court judges and myself, that all patriotic Victorians will insist on legislation making not only the judge of the Melbourne Insolvency Court (whoever he may be) but also all the County Court judges as independent as the Supreme Court judges now are. Then, and not till then, will the litigants in these important courts feel assured that not only are the judges free from all political influence, but even from the suspicion of such influence, and then, and not till then, will the judges who have such important duties to perform in those courts feel certain that in doing what they believe to be their duty they are not treading on the toes of influential politicians, and so possibly acting against their own interests.