The State (McKay) v Cork Circuit Court Judge and O'Connell

JurisdictionIreland
CourtSupreme Court
Judgment Date21 Dec 1937

High Court.

Supreme Court.

The State (McKay) v. Cork Circuit Court Judge and O'Connell.
THE STATE (at the prosecution of B. McKay)
and
THE CIRCUIT COURT JUDGE OF CORK CITY AND COUNTY, acting as the Cork Local Bankruptcy Court, and DANIEL M. J. O'CONNELL, Local Registrar of the Cork Local Bankruptcy Court (1)

Bankruptcy - The "Cork Local Bankruptcy Court" - Whether still in existence - The seal of the Cork Local Bankruptcy Court - Whether jurisdiction and seal transferred to Circuit Court - Delegation by Judge of his powers to Local Registrar - Whether valid - Adjudication of bankruptcy by Local Registrar - Whether exercise of "judicial power" - Natural justice - Absence of provisions enabling Registrar to make orders in bankruptcy - Conduct disentitling prosecutrix to relief by certiorari or prohibition - Form of delegation - Bankruptcy (Ireland) Amendment Act, 1872 (35 &36 Vict. c. 58), sect. 8 - Local Bankruptcy (Ireland) Act, 1888 (51 & 52Vict. c. 44), sects. 4 and 11 - Local Bankruptcy (Ireland) Rules, 1889,rr. 5, 6 - Constitution of the Irish Free State (Saorstát Eireann) Act, 1922. (No. 1 of 1922), Sch. I, Arts. 64, 75 - Courts of Justice Act, 1924 (No. 10of 1924), sects. 48 (vi), 22, 51 - The Deputy Registrar in Bankruptcy (Cork) Act, 1926 (No. 23 of 1926) - Rules of the Circuit Court, Or. XXXV, Or. XLI, r. 14.

Certiorari and Prohibition.

The following statement of facts is taken from the judgment of Sullivan P:—

The prosecutrix in this case carried on the business of a General Dealer at her premises in Cork and Limerick, and had a current account with the Cork Branch of the Provincial Bank of Ireland. On the 14th July, 1933, a debtor's summons, directed to the prosecutrix, issued forth of the Cork Local Bankruptcy Court, at the suit of the Bank, to recover the sum of £904 4s. 3d., alleged to be due by her on foot of her account. On the 31st of July, 1933, the Circuit Judge of Cork, sitting as Judge in the Cork Local Bankruptcy Court, on an application made on behalf of the Bank, extended the time for service of the debtor's summons from the 4th of August to the 11th of October. On the 22nd August, 1933, the Local Registrar of the Cork Local Bankruptcy Court, Daniel M. J. O'Connell, made an order for substituted service of the debtor's summons, and thereby directed that notice of the granting of the debtor's summons, published in 'Iris Oifigiuil' and in the 'Cork Examiner' be deemed service upon the prosecutrix on the 7th day after such publication. Such notice was duly published, and the prosecutrix not having complied with the debtor's summons, the Bank filed a petition for adjudication of bankruptcy. The petition was heard by the Local Registrar on the 11th September, 1933, and an order was made adjudicating her a bankrupt.

On the 3rd October, 1933, at the first Public Sitting, the prosecutrix appeared in Court and signed the usual surrender submitting to the jurisdiction of the Court.

On the 29th of December, 1933, the Local Registrar made an order giving the Official Assignee of the said Court liberty to sell by private treaty such of the bankrupt's property as was then upon her premises in Cork. By order of the Local Registrar, dated 5th January, 1934, the last mentioned order was amended by adding thereto a direction that the property of the bankrupt on her premises in Limerick be sold by public auction; and by a subsequent order, dated the 26th January, 1934, the Local Registrar directed that her property upon the Limerick premises be sold by private treaty. In pursuance of the orders so made, the Official Assignee of the Cork Local Bankruptcy Court, David C. Neligan, caused the goods and chattels of the prosecutrix on her premises in Cork and Limerick to be seized and sold. On the 13th March, 1934, the Bank applied for, and obtained from the Local Registrar, an order declaring them to be equitable mortgagees by deposit of title deeds of the Limerick premises, and directing a sale of the said premises, and that order was affirmed on appeal by the Circuit Judge on the 20th April, 1934. On the hearing of that application by the Registrar and on the hearing of the appeal the prosecutrix was represented by counsel and solicitor, and was similarly represented on four applications by her for maintenance made on 19th December, 1933, 18th January, 1934, 1st March, 1934, and 20th April, 1934, which applications were granted by the Circuit Judge. At no stage of those proceedings was any objection to the jurisdiction of the Court raised by the prosecutrix or on her behalf.

On the 30th July, 1934, the prosecutrix applied for, and obtained from this Court, a conditional order of certiorariand prohibition, directed to the Circuit Judge of Cork and to Daniel M. J. O'Connell, Local Registrar of the Cork Local Bankruptcy Court, to bring before the Court for the purpose of being quashed the orders made by the Local Registrar on the 22nd August, 1933, 11th September, 1933, 29th December, 1933, 5th January, 1934, and 26th January, 1934, and to prohibit the Circuit Judge and Local Registrar from further proceeding in the said bankruptcy matter on the grounds:—That each of the said orders was bad on its face, having been made without and in excess of jurisdiction, and that the said orders were of no effect and were null and void as against the prosecutrix, and that the said Daniel M. J. O'Connell, Local Registrar of the Cork Local Bankruptcy Court, was assuming to exercise the judicial power of Saorstát Éireann éireann.

The prosecutrix, B. McKay, now moved to have the conditional order made absolute.

The prosecutrix, Bridie McKay, applied to the Supreme Court (1) by way of appeal from the order of the High Court for an order that the whole of the said order of the High Court might be reversed and in lieu thereof that the cause shown be disallowed and the conditional order ofcertiorari and prohibition be made absolute.

The prosecutrix sought to have quashed on certiorari certain orders, including an adjudication in bankruptcy, made against her by the Local Registrar of the Cork Local Bankruptcy Court in a bankruptcy matter, and to prohibit the said Court from proceeding with the said matter. The High Court, and, on appeal, the Supreme Court, refused to make the conditional order for certiorari and prohibition absolute on the ground that there was jurisdiction to make the orders in question, holding that:—

1. The Cork Local Bankruptcy Court is still in existence, as it wac continued in force under Art. 75 of the Constitution, and the jurisdiction exercised therein before the Recorder was, by sect. 51 of the Courts of Justice Act, 1924, transferred to the Circuit Court of Cork.

2. The adjudication in bankruptcy, made by the County Registrar as Local Registrar of the said Court, under a delegation of his powers made by the Judge, is not an exercise of the "judicial power" of the State within the meaning of Art. 64 of the Constitution, being merely an administrative Act, subordinate and ancillary to, and subject to the direction, control and correction of the Court.

Lynham v. Butler (No. 2), [1933] I. R. 74 applied.

Nature of an adjudication in bankruptcy considered.

The Supreme Court were also of opinion that:—

3. The prosecutrix had, in any event, disentitled herself to relief bycertiorari as she had surrendered herself to the jurisdiction of the said Court by accepting orders for maintenance, and appealing to the Judge from the decision of the County Registrar.

4. The Judge of the Local Bankruptcy Court may delegate to the County Registrar, as Local Registrar, under the provisions of the Bankruptcy Acts and the Rules made thereunder (which Rules have been re-enacted by Or. XXXV of the Rules of the Circuit Court) such powers and authorities as he may deem expedient, not being any of the matters excepted by the Rules. A general delegation of all his powers by the Judge, without

reference to the expediency of any particular delegation, though valid in the case before the Court, was objectionable and open to abuse.

5. The adjudication in bankruptcy was not invalid as contrary to natural justice on the mere ground that it was made in the absence of the prosecutrix.

6. The use of the statutory seal of the Local Bankruptcy Court was transferred to the Circuit Court as part of the transferred jurisdiction of that Court, and does not depend upon the provision of Or. I, r. 3, of the Rules of the Circuit Court. That Order was not intended to apply to bankruptcy proceedings, having regard to the special provisions of Or. XXXV.

7. The prosecutrix, in applying to make absolute the conditional order for certiorari and prohibition ought not to be allowed to rely on a ground in the Supreme Court which was not relied on in the High Court.

Cur. adv. vult.

Sullivan P. :—

[After stating the facts]:—On the application to make the conditional order absolute the validity of these orders was impeached on the grounds:—

1. That the orders in question were orders of a nonexistent Court, as the Cork Local Bankruptcy Court had, it was said, ceased to exist on the passing of the Courts of Justice Act, 1924.

2. That in making the orders in question the Local Registrar was purporting to exercise the judicial power of the Irish Free State, contrary to Article 64 of the Constitution.

The Cork Local Bankruptcy Court was established by the Local Bankruptcy (Ireland) Act, 1888. Sect. 4 of that Act provides that the Recorder of Cork for the time being shall constitute and hold a Local Bankruptcy Court, to be called the Cork Local Bankruptcy Court, and that such Court, and the Recorder as the Judge thereof, shall, in addition to all existing jurisdiction, have and exercise in all matters in which he shall have jurisdiction as therein provided, all such and the like jurisdiction, power and authority in bankruptcy and as to arrangements with creditors and composition after bankruptcy as shall for the...

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2 cases
  • Tomasz Zalewski v The Workplace Relations Commission, an Adjudication Officer [Y], Ireland and the Attorney General
    • Ireland
    • Supreme Court
    • 6 April 2021
    ...finally, where it was held that an adjudication in bankruptcy by a county registrar was also constitutionally compliant ( the State (McKay) v. Cork Circuit Judge [1937] I.R. 650). However, apart from those, there were very few other judicial murmurings, of note, which might have caused pol......
  • Rainey v District Justice Delap
    • Ireland
    • Supreme Court
    • 8 March 1988
    ...McDonald v. Bord na gCon (No. 2)IRDLTR [1965] I.R. 217; 100 I.L.T.R. 89. The State (McKay) v. Cork Circuit Court Judge and O'ConnellIR [1937] I.R. 650. The State (Shanahan) v. The Attorney General and OthersIR [1964] I.R. 239. The State (Philpott) v. The Registrar of TitlesDLRM [1986] I.L.R......

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