Number 36.
DAIL EIREANN COURTS (WINDING-UP) ACT, 1923.
ARRANGEMENT OF SECTIONS
Act Referred to | |
No. 6 of 1923 | |
Number 36.
DAIL EIREANN COURTS (WINDING-UP) ACT, 1923.
Definitions.
1.—(1) In this Act—
the expression “the Commissioners” means the Judicial Commissioners appointed under this Act;
the word “Register” means the Register of Dáil Court Decrees established under this Act;
the expression “registered decree” means a decree of a Dáil Court duly registered in the Register;
the word “Registrar” means the Registrar of Dáil Court Decrees appointed under this Act;
the word “Accountant” means the Accountant of the Dáil Courts Fund appointed under this Act;
the word “decree” when used in relation to a Dáil Court includes judgment and order;
the expression “Dáil Court” means any court which was constituted under a Decree made in the year 1920 by the Minister for Home Affairs purporting to act under the authority of the Dáil Eireann constituted to be the Government of Saorstát Eireann by the members who were elected for constituencies in Ireland and who first assembled in a Parliament held in the Mansion House at Dublin on the 21st day of January, 1919;
the word “Minister” means the Minister for Home Affairs;
the word “prescribed” means prescribed by rules or regulations made under this Act.
(2) For the purpose of this Act the authority of all Parish and District Dáil Courts outside the City of Dublin shall be deemed to have been withdrawn on the 30th day of October, 1922, and the authority of all other Dáil Courts shall be deemed to have been withdrawn on the 25th day of July, 1922.
Appointment of Judicial Commissioners and Assistant Commissioners for the purpose of this Act.
2.—(1) It shall be lawful for the Governor-General of the Irish Free State, on the advice of the Executive Council of Saorstát Eireann, to appoint a fit and proper person to be Chief Judicial Commissioner and such and so many fit and proper persons as he shall, on the advice aforesaid think proper, to be respectively puisne Judicial Commissioners and Assistant Commissioners for the purposes of this Act.
(2) Every person appointed to be a Judicial Commissioner under this section shall have been a Judge of the Dáil Supreme Court or shall be a practising barrister of not less than ten years' standing, and every person appointed to be an Assistant Commissioner under this section shall have been a Circuit Judge of a Dáil Court or shall be a practising barrister of not less than six years' standing, or a District Justice.
(3) Every person appointed to be a Judicial Commissioner or an Assistant Commissioner under this section may be dismissed or removed at the pleasure of the Governor-General of the Irish Free State on the advice of the Executive Council.
(4) The Judicial Commissioners and Assistant Commissioners appointed under this section shall be paid, out of moneys to be provided by the Oireachtas, such salaries and allowances as shall be fixed by the Minister for Home Affairs with the consent of the Minister for Finance.
Commissioners to have a seal.
3.—(1) The Commissioners shall have a common seal which shall be judicially noticed by all courts in Saorstát Eireann.
(2) The Commissioners shall by the rules made by them under this Act prescribe the form of such seal and the times and manner in which it is to be used and authenticated.
Proceedings pending in Dáil Courts may be heard by the Commissioners.
4.—(1) Any party to any proceeding which was pending in any Dáil Court at the date when the authority of such Court-was withdrawn may apply in the prescribed manner to the Commissioners to have such proceedings heard and determined by the Commissioners, and thereupon the Commissioners shall hear and determine the same.
(2) The appellant in any appeal which was pending in any Dáil Court at the date when the authority of such Court was withdrawn may apply to the Commissioners in the prescribed manner to have such appeal heard and determined by the Commissioners, and thereupon the Commissioners shall hear and determine the same.
Appeals from and enforcement of Dáil Court decrees.
5.—(1) Any person who claims to be aggrieved by any registered decree of a Dáil Court other than the Dáil Supreme Court and who was a party to the proceedings in which such decree was made or is otherwise bound by such decree may appeal within the prescribed time and in the prescribed manner from such decree to the Commissioners, and thereupon the Commissioners shall hear and determine such appeal.
(2) Any person who claims to be aggrieved by any registered decree of a Dáil Supreme Court and who was a party to the proceedings in which such decree was made or is otherwise bound by such decree may apply within the prescribed time and in the prescribed manner to the Commissioners for leave to appeal to the Commissioners from such decree, and in the event of such leave being granted, such person may appeal within the prescribed time and in the prescribed manner to the Commissioners from such decree, and thereupon the Commissioners shall hear and determine such appeal.
(3) Any person entitled to enforce any registered decree of a Dáil Court in respect of which no appeal is brought under this section may, after the expiration of the prescribed time for bringing such appeal, obtain, as of course, from the Commissioners a warrant for the execution of such decree.
(4) No decree of a Dáil Court shall be of any force or effect or be capable of being sued upon or enforced before or by the Commissioners or any other court or otherwise howsoever unless such decree is duly registered under this Act.
(5) No registered decree of a Dáil Court shall be capable of being sued upon or enforced before or by any court or otherwise howsoever save by such proceedings or other steps as are authorised by this Act, but nothing in this Act shall prevent any registered decree being pleaded and given in evidence by way of defence or set-off in any proceeding.
Certain cases may be heard by an Assistant Commissioner.
6.—(1) Any of the applications following may, in lieu of being made to the Commissioners, be made to an Assistant Commissioner, that is to say:—
(a) any application for the hearing and determination of a proceeding which was pending in a Dáil Parish Court or a Dáil District Court when the authority of such Court was withdrawn;
(b) any application for the hearing and determination of an appeal from a Dáil Parish Court which was pending in a Dáil District Court when the authority of such Court was withdrawn;
(c) any appeal from a registered decree of a Dáil Parish Court or of an ordinary sitting of a Dáil District Court;
(d) any interlocutory application in any of the above-mentioned cases.
(2) An Assistant Commissioner when hearing any case or application under this section shall have the same powers and authorities as the Commissioners would have under this Act when hearing a like case or application, and all the provisions of this Act in relation to the registration and enforcement of orders of the Commissioners shall apply to orders made by an Assistant Commissioner under this section.
(3) Any person aggrieved by an order of an Assistant Commissioner under this section and who was a party to the proceedings in which such order was made or is otherwise bound by such order, may appeal within the prescribed time and in the prescribed manner from such order to the Commissioners, who shall thereupon hear and determine such appeal.
This sub-section shall not apply to orders made in matters which were pending in a Dáil Parish Court when the authority of such Court was withdrawn or to orders made on appeal from a decree of a Dáil Parish Court.
Appeal from order of one Commissioner.
7.—(1) An appeal shall lie to the Commissioners from any order made by one Judicial Commissioner sitting alone. This sub-section shall not apply to orders made in matters which were pending in a Dáil Parish Court when the authority of such court was withdrawn or to orders made on appeals from a decree of a Dáil Parish Court or to orders made on appeal from the Registrar in relation to the registration or non-registration of a decree of a Dáil Court.
(2) No Commissioner shall take part in the hearing of an appeal from an order made by him.
Conflicting orders of other courts may be stayed by Commissioners.
8.—(1) Whenever it shall be shown to the satisfaction of the Commissioners that a judgment, decree or order has been given or made by any other court in respect of any matter or state of facts which is the subject of proceedings before the Commissioners, the Commissioners may on the application in the prescribed manner of any person affected by such judgment, decree or order stay the execution of such judgment, decree or order, or of any specified portion thereof, during such time and to such extent as the Commissioners shall think fit.
(2) It shall not be lawful for any Under-Sheriff or other officer or for any person to execute or procure the execution of any judgment, decree or order, or the specified portion thereof, the execution whereof has been stayed by the Commissioners under this section.
Stay of conflicting proceedings in other courts.
9.—Wherever it shall be shown to the satisfaction of the Commissioners that any matter or state of facts which is the subject of proceedings before the Commissioners, is also the subject of proceedings before any other court in Saorstát Eireann, it shall be lawful for the Commissioners on the application in the prescribed manner of any party to such first mentioned proceedings, to issue to the court in which the second-mentioned proceedings are pending information and particulars of the proceedings so pending before the Commissioners, and thereupon such court shall stay the proceedings pending before it so far as such proceedings relate to or affect the matters or state of facts which are or is the subject of the proceedings before the Commissioners.
Reference of issue of fact to County or District Court.
10.—(1) The Commissioners may refer any issue of fact arising in any proceedings before them and which in their opinion can be more conveniently tried in a particular County or District Court, to the County Court Judge or District Justice of such court to be tried and determined by him, notwithstanding that the trial of such issue is by reason of the amount of money or the value of the property involved, or for any other reason, outside the jurisdiction of such County Court Judge or District Justice.
(2) A County Court Judge or District Justice to whom an issue is referred under this section shall at the first convenient opportunity, either at his regular sittings or at a special sitting, try and determine such issue and shall specify his finding thereon in writing to the Commissioners.
(3) A County Court Judge or District Justice when trying an issue referred to him under this section shall have the same powers, whether for summoning a jury, compelling the attendance of witnesses, preserving order in his court, requiring the assistance of the officers of his court or otherwise, in relation to the conduct of such trial as he has by law in relation to the conduct of the trial on a civil bill or District Court summons, as the case may be.
(4) No fees shall be charged in any County or District Court in relation to an issue referred to the Judge or Justice of such court under this section.
(5) No issue shall be referred under this section to a County Court Judge or District Justice without the consent of such Judge or Justice.
Appointment of Registrar of Dáil Court Decrees.
11.—(1) The Minister may appoint a fit and proper person to be Registrar of Dáil Court Decrees, who shall keep the Register of Dáil Court Decrees established by this Act, and shall also act as Registrar of the Court of the Commissioners and perform such other duties as may be from time to time assigned to him by the Minister or by the Commissioners with the consent of the Minister.
(2) The Registrar shall hold office by such tenure and on such terms and shall be paid out of moneys to be provided by the Oireachtas such salary or remuneration as the Minister shall, with the consent of the Minister for Finance, direct.
Establishment of Register of Dáíl Court Decrees.
12.—(1) The Minister shall cause a Register of Dáil Court Decrees to be opened and maintained and shall give public notice by advertisement or otherwise of the establishment of such Register, and shall in such public notice prescribe a date, not being sooner than two months or later than four months after the passing of this Act, before which any person may give notice to the Registrar of any decree made by a Dáil Court in a matter or proceeding to which he or any deceased person whose personal representative he is was a party or by which he or such deceased person is bound.
(2) The Registrar shall enter in the Register particulars of every decree of a Dáil Court of which he receives—
(a) notice before the date named in the advertisements aforesaid; and
(b) such evidence as in his opinion is reasonably sufficient to establish the fact of such decree having been made, the court by which and the date on which the same was made and the terms thereof; and
(c) such particulars as are in the possession of or can reasonably be obtained by the person giving such notice of the names and addresses of all persons affected or bound by such decrees, and the names and addresses of the solicitors (if any) who acted for such persons respectively in the matter in which such decree was made.
(3) Within the prescribed time after entering a decree in the Register the Registrar shall give, in the prescribed manner, notice of the registration of such decree to every person appearing to be affected or bound thereby and to the solicitors (if any) appearing to have acted for such persons respectively in the matter in which such decree was made.
(4) Any person aggrieved by the registration, or by a refusal of the Registrar to register, a decree of a Dáil Court may appeal in the prescribed manner to the Commissioners, who shall make such order in the matter as appears to them to be just.
(5) No decree made by a Dáil Court after the date on which the authority of such court was withdrawn shall be entered on the Register.
(6) Any advertisements published by the Minister before the passing of this Act inviting persons to furnish particulars of decrees of Dáil Courts shall be deemed to have been published under this section, and all such particulars as may have been or shall be received by the Minister pursuant to such advertisements shall be communicated by him to the Registrar and shall be deemed to be a notice under this section to the Registrar of the decree to which they relate and shall be dealt with by the Registrar accordingly.
Orders, etc., of Commissioners to be entered in Register.
13.—Every order, judgment and decree made by the Commissioners, and also all such other documents relating to proceedings before the Commissioners as shall be prescribed shall be entered on the Register.
Transfer of Register and records to High Court.
14.—Upon the final completion of the business of the Commissioners under this Act the Register and all other (if any) official records of or relating to the transactions of the Commissioners shall be transferred to the High Court and preserved with the records of that court.
Appointment of Accountant of Dáil Courts Fund.
15.—(1) The Minister may appoint a fit and proper person to be Accountant of the Dáil Courts Fund, who shall keep the accounts of that Fund and shall perform such other duties as may be from time to time assigned to him by the Minister.
(2) The Accountant of the Dáil Courts Fund shall hold office by such tenure and on such terms and shall be paid out of moneys to be provided by the Oireachtas such salary or remuneration as the Minister shall, with the consent of the Minister for Finance, direct.
(3) The accounts of the Dáil Courts Fund shall be audited by the Comptroller and Auditor-General in such manner and at such times as may be prescribed by the Minister for Finance.
Establishment of Dáil Courts Fund.
16.—(1) There shall be established for the purposes of this Act a Fund to be called and known as “the Dáil Courts Fund” and, in addition to the moneys directed by or under this Act to be paid into such Fund, there shall from time to time be placed to the credit of the Dáil Courts Fund out of moneys provided by the Oireachtas such sums as the Minister for Finance shall direct.
(2) The Dáil Courts Fund shall be kept, and all drawings thereon shall be authenticated, in such manner and by such persons or person as the Minister for Finance shall from time to time direct.
(3) Upon the final completion of the business of the Commissioners under this Act, and the payment and receipt of all moneys payable out of or into the Dáil Courts Fund under this Act, the balance (if any) then standing to the credit of the Dáil Courts Fund shall be paid into the Exchequer of Saorstát Eireann and that Fund shall be closed.
Commissioners may make certain payments out of Dáil Courts Fund.
17.—(1) It shall be lawful for the Commissioners wherever it appears to them to be just so to do on the application in the prescribed manner of any person (in this section called “the applicant”) to order the payment to the applicant out of the Dáil Courts Fund of such sum of money as the Commissioners shall think proper in—
(a) repayment of any moneys paid by the applicant, or by any deceased person whose personal representative the applicant is, to any official or authority of any Dáil Court by way of deposit, security or otherwise under any general or special rule or order of such court; or
(b) in repayment of any moneys paid by the applicant or any such deceased person as aforesaid by direction of a Dáil Court for the use or benefit of such Dáil Court.
(2) Where the sum of money claimed by an applicant under this section does not exceed thirty pounds the application may be made to an Assistant Commissioner and such Assistant Commissioner shall have in relation to such application all the powers conferred on the Commissioners by this section.
Delivery to Accountant of money and accounts of Dáil Courts.
18.—(1) Every person whose duty it was to receive or pay out moneys in connection with any Dáil Court or who came into possession of any moneys for which he was accountable to a Dáil Court, shall within one month after the passing of this Act deliver to the Accountant a full and true account of all such moneys and pay to the Accountant for lodgment in the Dáil Courts Fund the balance appearing on such account to be still in his hands.
(2) Every person who has in his possession any accounts relating to the receipt or payment of any moneys for which such person or any other person was accountable to a Dáil Court shall within one month after the passing of this Act deliver such accounts to the Accountant.
(3) If it appears to the Commissioners, on the application of the Accountant or otherwise, that any such person as is mentioned in either of the preceding sub-sections has made default in the delivery to the Accountant of any account which such person is required by this section to deliver to the Accountant, or has made default in the payment to the Accountant of any balance which such person is required by this section to pay to the Accountant the Commissioners may order such person to deliver such account or pay such balance (as the case may be) to the Accountant within a time to be specified in such order
(4) The Commissioners may by order impose by way of punishment on any person who shall make default in the delivery of any account or the payment of any balance in accordance with any order made by the Commissioners under this section, a fine not exceeding one hundred pounds to be paid into the Dáil Courts Fund, or, in default of payment of such fine, imprisonment for any period not exceeding three months.
Enforcement of Commissioners' orders and Dáil Court decrees.
19.—(1) For the purpose of enforcing any order made by the Commissioners under this Act, or any decree of a Dáil Court which is enforceable under this Act, the Commissioners may issue their warrant in the prescribed form directed to any Under-Sheriff in Saorstát Eireann, requiring such Under-Sheriff to execute in the manner stated in such warrant the order or decree or any specific portion of the order or decree to which such warrant relates.
(2) For the purpose of enforcing any order made by an Assistant Commissioner under this Act, or any decree of a Dáil Parish Court or a Dáil District Court which is enforceable under this Act, a warrant of the Commissioners under this section may be issued on the direction in the prescribed manner of an Assistant Commissioner.
(3) The Commissioners may in any warrant issued under this section require the Under-Sheriff to execute the order or decree or portion of the order or decree to which such warrant relates in any manner in which a similar decree of a Civil Bill Court might by law be executed by such Under-Sheriff.
(4) Every Under-Sheriff to whom any warrant under this section is directed shall have all the powers and may charge all the fees which are for the time being vested in or chargeable by him in or about the execution of a decree of a Civil Bill Court of a similar nature to the order or decree to which such warrant relates.
General powers of the Commissioners.
20.—(1) For the purposes of this Act the Commissioners shall have full power and jurisdiction to hear and determine all matters, whether of law or fact, which shall be duly brought before them under this Act, and shall not be subject to be restrained in the execution of their powers under this Act by the order of any other court, nor shall any proceedings before them be removed by certiorari into any other court.
(2) The Commissioners with respect to the following matters, that is to say:—
(a) enforcing the attendance of witnesses, (after a tender of their expenses), the examination of witnesses orally or by affidavit, and the production of deeds, books, papers, and documents; and
(b) issuing any commission for the examination of witnesses; and
(c) punishing persons refusing to give evidence or to produce documents, or guilty of contempt in the presence of the Commissioners or any of them sitting in open court;
(d) fixing the liability for the costs incurred in proceedings before the Commissioners and measuring the amount of such costs;
shall have all such powers, rights, and privileges as are vested in the High Court for such or the like purposes, and all proceedings before the Commissioners shall in law be deemed to be judicial proceedings before a court of record.
Commissioners to make and publish rules.
21.—(1) The Commissioners shall as soon as conveniently may be after their appointment make and publish rules regulating their procedure and may by such rules prescribe the forms to be used in proceedings before them.
(2) The Commissioners shall by such rules prescribe the number of Commissioners who shall form a quorum for the hearing of different classes of cases, but so that no appeal from a decree of a circuit sitting of a Dáil Court or of the Supreme Dáil Court shall be heard by less than two Commissioners, and so that no appeal from a Commissioner or an Assistant Commissioner shall be heard by less than two Commissioners, and so that no Commissioner who was a judge of a Dáil Court shall sit to hear an appeal from a decree made by himself alone or (so far as is physically possible having regard to the number of Commissioners available) an appeal from a decree of a Dáil Court of which he was a member.
(3) The Commissioners shall by such rules regulate the procedure of Assistant Commissioners and the conduct of proceedings before an Assistant Commissioner and may by such rules prescribe the forms to be used in such proceedings.
(4) A quorum prescribed by rules made under this section may consist of one person.
Fees to be charged under this Act.
22.—(1) There shall be charged by the Commissioners in respect of proceedings brought before them or before an Assistant Commissioner under this Act, and in respect of acts done by them or any of their officers or by an Assistant Commissioner or by the Registrar or the Accountant in the execution of their respective duties under this Act, such fees as shall from time to time be prescribed by orders made by the Minister for Home Affairs on the recommendation of the Commissioners and with the sanction of the Minister for Finance.
(2) Orders made under this section may (notwithstanding anything contained in the Public Offices Fees Act, 1879) regulate the method and manner of collecting and accounting for the fees prescribed by such orders.
Appointment of officers and staff.
23.—(1) Such officers and staff (other than the Registrar and Accountant) as shall be required by the Commissioners, the Registrar and the Accountant respectively for the purposes of this Act shall be appointed by the Minister with the consent of the Minister for Finance as to number and remuneration.
(2) The salaries or other remuneration of the officers and staff appointed under this section shall be paid out of moneys to be provided by the Oireachtas.
Proceedings may be brought by personal representatives of deceased persons.
24.—Wherever any application, appeal or other proceeding may be brought before the Commissioners by any party, appellant or other person under this Act, such application, appeal or other proceeding may be brought by the personal representative of any person who, if he was alive, would have been entitled under this Act to bring such application, appeal or proceeding.
Minister for Home Affairs may make regulations.
25.—The Minister may by order from time to time make regulations for carrying into effect the objects of this Act, but this section shall not be deemed to authorise the Minister to make regulations in respect of any matter in respect of which the Commissioners are by this Act authorised or required to make rules or regulations.
Unopposed judgments etc., may be re-opened in certain cases.
26.—(1) In any case in which a judgment, decree, or order was on or after the 1st day of August, 1920, given or made by any court against any person in his absence, and it shall be proved to the satisfaction of such court or, in the case of a decree of a Dáil Court, to the satisfaction of the Commissioners, that such person had a prima facie defence or answer to the making of such judgment, decree, or order, but refrained from appearing at and opposing the making of such judgment, decree, or order because of an objection on principle to submit to the jurisdiction of that court, such court or the Commissioners, as the case may be, may at any time within three months after the passing of this Act and upon such terms and conditions, if any, as shall appear just, allow the proceedings in which such judgment, decree, or order was made or given to be re-opened for the purpose of allowing such person to make his defence or answer, and may direct any necessary re-hearing or new trial, and may rescind, vary or amend any such judgment, decree, or order, and may give or make any other judgment, decree, or order, with the addition of any requisite ancillary or consequential order, as the justice of the case shall require.
(2) The rights and powers given by the foregoing sub-section in respect of a decree of a Dáil Court are in addition to, and not in substitution for any right or power given by any other section of this Act.
Indemnity of persons acting under authority of Dáil Courts.
27.—(1) No action or other legal proceeding, whether civil or criminal, shall be brought in any court of law or equity against—
(a) any judge or officer of any Dáil Court for or on account of or in respect of any act, matter or thing duly done by him in the course of his duty as such judge or officer; or
(b) any person, whether he was or was not an officer of a Dáil Court, for or on account of or in respect of any act, matter or thing done or omitted to be done by him under the authority or in pursuance of any decree constituting or regulating the Dáil Courts or under the authority or in pursuance of any decree of a Dáil Court or any order or direction of a judge of any such court; or
(c) any officer of any court other than a Dáil Court for or on account of or in respect of his having refrained before the passing of this Act from doing any act, matter or thing which it was his duty as such officer to do and which he refrained from doing bona fide on the ground that the doing of such act, matter or thing was contrary to or in conflict with or prejudicial to the enforcement of a decree of a Dáil Court.
(2) If any such action or other legal proceeding as is mentioned in the foregoing sub-section was instituted before the passing of this Act and is now pending, the same shall be discharged and made void, subject to such order as to costs as the court in which such action of proceeding is pending, or a Judge thereof, shall think fit to make.
Extension of times limited by statute.
28.—(1) If and whenever the time limited by any statute for instituting any proceedings in any court of law or equity would, but for this section, have expired on any date between the 31st day of December, 1918, and the 16th day of April, 1922, such court may, if it is satisfied that justice so requires, extend such time to any date not being later than three months after the passing of this Act.
(2) Provided always that this section shall not apply in the case of any land which shall have been conveyed or assured bona fide and for valuable consideration.
(3) This section shall not apply to any limit of time which can be extended by a District Justice under section 6 of the District Justices (Temporary Provisions) Act, 1923 (No. 6 of 1923).
Short Title.
29.—This Act may be cited as the Dáil Eireann Courts (Winding-up) Act, 1923.