High Court of Ireland Decisions

O'Donoghue v. Ireland [1999] IEHC 45; [2000] 2 IR 168; [2000] 2 ILRM 145 (24th November, 1999)

IN THE MATTER OF VINCENT O'DONOGHUE, A BANKRUPT

BETWEEN

JUDGEMENT of Kearns J., delivered on the 24th day of November 1999

1. By High Court Order dated the 5th day of July 1999, Ms. Justice Laffoy referred for trial by plenary hearing a net issue as follows:-

"Whether Section 21 subsections (1)(2) and (3) of the Bankruptcy Act, 1988 are invalid having regard to the provisions of Article 40(3)(i) and (ii) of the Constitution".

2. The case put forward on behalf of the Plaintiff is encapsulated in the Notice pursuant to Order 60 Rule 1 of the Rules of the Superior Courts in the following terms:-

"....in the above entitled proceedings the bankrupt will seek a declaration that the words "the Court" in Section 21(1),(2) and (3) (i.e. at the start of (3)) of the Bankruptcy Act, 1988 are invalid and repugnant to the Constitution. The grounds for such invalidity is that the examination process envisaged therein is an intrinsically administrative and inquisitorial process and cannot properly be regarded as a proper judicial function within Article 34(1) of theConstitution; imposing that function on the courts rather than on some executive agency (e.g. the Official Assignee) contravenes the separation of powers between the judicial and the executive functions.

Further, putting the inquisition function into the Court and where the bankrupt will most likely be required to pay all the costs and expenses thereof (e.g. Solicitors and Barristers fees) is so unnecessarily cumbersome, inefficient and extravagant that it is wholly disproportionate to the objectives of the Section; these objectives could very easily be achieved through a far more convenient, expeditious and economical means, e.g. examination by Official Assignee in his office, it will be contended that the court should substitute"the Official Assignee" for the words "the Court"".

3. At the commencement of the hearing before this court the Plaintiff's arguments were limited to the alleged conflict with Article 34.1 of the Constitution and no evidence was led to support the contention that some other form of enquiry would be less expensive than that provided for by the current regime.

Section 21 of the Bankruptcy Act, 1988 provides as follows:-

"(1) The Court may summon before it a bankrupt or any person who is known or suspected to have in his possession or control any property of the bankrupt or to have disposed of any property of the bankrupt or who is supposed to be indebted to the bankrupt, or any person who the Court deems capable of giving information relating to the trade, dealings, affairs or property of the bankrupt

(2) The Court may examine him on oath concerning the matters aforesaid, either orally or written interrogatories, and may reduce his answers to writing and require him to sign them.

(3) The Court may require him to produce any books of account and papers in his possession or control relating to the matters aforesaid but, where he claims any lien on books or papers produced by him, the production shall be without prejudice to that lien and the Court may determine all questions in relation to the lien."

4. Article 34.1 of the Constitution provides:-

"Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public."

5. In the course of legal argument, reference was also made to Article 6 of the Constitution which provides as follows:-

"(1) All powers of government, legislative, executive and judicial derive, under God from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy according to the requirements of the common good.

(2) These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution."

6. Articles 15, 28 and 34 of the Constitution assign the powers of government respectively to the legislature, the executive and the judiciary and afford each of those organs of State a certain degree of sovereignty within their respective spheres. However, it is common case that absent from the Constitution is any definition of what constitutes each power of government.

7. In bringing this application, the Plaintiff accepts that this process of examination has been treated as part of the administration of justice for many centuries. As far back as 1603, an English Act provided for the examination of a bankrupt and the imposition of penalties for refusal to appear, answer, etc. In Ireland legislation exists at least as far back as 1836 when legislation provided that the commissioners could summon a bankrupt and his wife and examine them, and such a person could be committed if he refused to be sworn.

8. Despite this unpromising backdrop, the Plaintiff nonetheless submits that quite clearly what is envisaged under Section 21 is a purely administrative function lacking the essential elements of matters typically regarded as justiciable.

9. The Irish Constitution, it is submitted, drew heavily from the concept of separation of powers enshrined at Article III of the Constitution of the United States which provides that the judicial power of the United States shall be vested in one supreme Court and in such inferior Courts as the Congress might from time to time ordain and establish. The said Article further provides that judicial power shall extend to all cases in law and equity arising under the Constitution and laws of the United States.

10. Dr. Ford referred the Court to a case of Steel Company -v- Citizens for a Better Environment (reported in United States Law Week 66 LW 4179) (1998) which was a decision of the United States Court of Appeals for the seventh circuit and the following extract from the judgment of Justice Scalia:-

"Article 3, (2) of the Constitution extends the "judicial power" of the United States only to "cases" and "controversies". We have always taken this to mean cases and controversies of the sort traditionally amenable to and resolved by the judicial process. Muskrat -v- United States, Supra at 356 - 357. Such a meaning is fairly implied by the text, since otherwise the purported restriction upon the judicial power would scarcely be a restriction at all. Every criminal investigation conducted by the executive is a "case", and every policy issue resolved by Congressional legislation involves a "controversy". These are not, however, the sort of cases and controversies that Article 3(2), refers to since "the Constitution's central mechanism of separation of powers depends largely upon common understanding of what activities are appropriate to legislatures, to executives and to courts".

Lujan -v- Defenders of Wild Life, 504 U.S. 555, 559 - 560 (1992). Standing to sue is part of the common understanding of what it takes to make a justiciable case. Whitmore -v- Arkansas, 495 U.S., 149, 155 (1990).

The "irreducible constitutional minimum of standing" contains three requirements. Lujan -v- Defenders of Wild Life, Supra, at 560. First and foremost, there must be alleged (and ultimately proven) an "injury in fact" - a harm suffered by the Plaintiff that is "concrete" and "actual or imminent, not "conjectural" or "hypothetical"". Whitmore -v- Arkansas, Supra at 149, 155 (1990) (quoting Los Angeles -v- Lyons 461 U.S. 95, 101 - 102 (1983)). Second, there must be causation - a fairly traceable connection between the Plaintiff's injury and the complaint of conduct of the Defendant. Simon -v- Eastern Ky. Welfare Rights Organisation, 426 U.S. 26, 41 - 42 (1976). And third, there must be redressability - a likelihood that the requested relief will redress the alleged injury. Id., at 45 -46; see also Warth -v- Seldin, 422 U.S. 490, 505 (1975). This triad of injury in fact, causation and redressability comprises the core of Article 3's case or controversy requirement and the party invoking federal jurisdiction bears the burden of establishing it's existence."

11. The Plaintiff submits that these essential features are lacking in the arrangements provided for by Section 21 of the Bankruptcy Act, 1988. There are no "parties",there is no substantial issue and no adjudication in the sense in which that expression is commonly understood.

12. Dr. Ford also referred to the Privy Council decision in Attorney General for Australia -v- The Queen and the Boilermaker Society of Australia (1957) 2 WLR p. 607 as a persuasive authority for the proposition that the doctrine of separation of powers precludes the joinder or union of judicial and non judicial powers in the same body.

13. The grounds of complaint in that case were that the Australian Conciliation and Arbitration Acts, 1904 - 1952 were ultra vires and invalid in providing for a Court of Arbitration invested by statute with numerous powers, function and authorities of an administrative, arbitral, executive and legislative character and powers conferred by the Conciliation and Arbitration Acts, 1904 - 1952 which purported to vest in the said Court powers of a judicial nature for the implementation of it's orders, in consequence whereof it was contended that the relevant statutory provisions were repugnant to the Constitution of Australia.

14. The problem was whether or not it was permissible under the Constitution to enact that upon one body of persons, be it tribunal or court, arbitral functions and judicial functions should be together conferred.

15. In deciding that such an exercise was invalid, their Lordships through Viscount Simonds, who delivered judgment in the case, quoted with approval the following passages from Waterside Workers Federation of Australia -v- J W Alexander Limited (1918) 25 CLR 434 as follows, firstly, from the judgment of Griffith C.J.:-

"It is impossible under the Constitution to confer such functions (i.e. Judicial functions) upon anybody other than a court, nor can the difficulty be avoided by designating a body which is not in it's essential character a court, by that name, or by calling the functions by another name. In short, any attempt to vest any part of the judicial power of the Commonwealth in any body other than a court is entirely ineffective."

16. And from the same case the following passage from Barton J., was cited with approval:-

"Whether persons were judges, whether tribunals were courts, and whether they exercise what is now called judicial power depended and depends on substance and not on mere name".

17. Finally, Dr.Ford referred to the Supreme Court decision In Re. Redbreast Preserving Company Limited (91 ILTR)(1957) in which the Supreme Court reversed Budd J., who in the High Court had held that in conducting the examination of a witness under the provisions of Section 174 of the Companies (Consolidation) Act, 1908, a judge is administering justice and accordingly such examination should be performed in accordance with Article 34,1 of the Constitution in open court.

18. At p.23, Lavery J., seems to have taken the view that such an examination did not form part of the administration of justice in the technical sense and therefore was not a proceeding such as was required to be held in public. He stated:-

"The examination did not of itself lead to an adjudication by the judge. If any motion were to be taken on the information so obtained it would have to be brought by further proceedings.

Continuing, His Lordship stated that in the opinion of the Court the collection and preparation of the material upon which a judge pronounced his decision was not the administration of justice within the meaning of the words used in Article 34,1."

19. Earlier he had stated:-

"Obviously, it would be quite impossible to carry on the business of the Courts if every step and everything to be done in an action had to be done in open court. There were a large number of matters, such as the issuing and serving of summonses, the swearing of affidavits, the examination of witnesses before Commissioners, the taking of accounts, and other matters, all of which formed part of the administration of justice in the broadest sense of the phrase, but which were plainly not within the meaning of the phrases used in Article 34,1 which appeared in the Constitution in order to enshrine therein the principle that"justice should not only be done but should be seen to be done".

20. Accordingly, it is submitted that if such an examination under the Companies Act did not form part of the administration of justice, by analogy an examination of a bankrupt should not be regarded as forming part of the administration of justice either.

21. On behalf of the First named Defendant, it was submitted that the separation of powers effected by the Irish Constitution is not completely rigid and definite as is apparent from the Constitution itself - e.g. the appointment of members of the Judiciary by a member of the Legislature (the President) on the advice of the Executive (Articles 35.1 and 13.11), the removal of a member of the Judiciary by the Legislature (Article 35.4.1), the appointment of members of the Executive from members of the Legislature (Article 28.7), the exercise of the power of judicial review of legislation and of acts of the Executive by the Judiciary (Article 34.3.2).

22. The Constitution does not purport to define what constitutes each power of government and there must inevitably be grey areas at the boundary between the exercise of one function and another.

23. The following passage from Johnston J., was cited from Lynham -v- Butler (1933) I.R.74 at p.99:-

"It has been found through universal experience that this division of governmental functions cannot, as a matter of practical policy, be carried out to its logical conclusion and can only take place as an approximation. In no system of which I have knowledge has it been found to be possible to confine the legislative, the executive and the judicial power each in what I may call its own watertight compartment; and, if such a thing were to be attempted, the result, I fear, would be so much the worse for the compartment."

24. It is argued that there can be many instances when a given function may exhibit characteristics of more than one power of government and the precise characterisation of that function may depend on the context in which the function arises to be exercised and, in the case of a statutorily conferred function, the choices made by the Legislature in assigning the function to a particular organ of State. Article 6 does not expressly recognise an"administrative power" as a characteristic of the separation of powers. It is not an expression which is coextensive with "executive power" and thus does not preclude the attachment of administrative powers and functions to other organs of government ancillary to or for the purpose of giving effect to their primary functions.

25. Article 37 of the Constitution allows for the exercise of limited judicial functions of a non criminal nature by bodies and persons who are not courts or judges. These powers are frequently described as quasi judicial or administrative decision making powers. While the case law on Article 37 has generally focused on whether particular powers conferred on such bodies breached the separation of powers by virtue of permitting an excessive exercise of judicial power by an administrative body, the very existence of Article 37 is an acknowledgement that many decision making functions have both an administrative and a judicial character and may be conferred on a range of bodies, including courts, without violating the Constitution.

26. The most frequently cited definition of judicial powers is that of Kenny J., in McDonald -v- Bord na gCon (no. 2) (1965) IR 217, when he described the characteristic features of the administration of justice as follows:-

"(1) A dispute or controversy as to the existence of legal rights or a violation of the law;

(2) The determination or ascertainment of the rights of the parties or the imposition of liabilities or the infliction of a penalty

(3) The final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties

(4) The enforcement of those rights or liabilities or the imposition of a penalty by a court or by the executive power of the State which is called in by the Court to enforce its judgment

(5) The making of an order by the Court which as a matter of history is an order characteristic of courts in this country."

In Deaton -v- the Attorney General (1963) IR Kenny J., stated at p.174:-

"There are, however, many matters disposed of by courts in which there is not a justiciable controversy and although everything done by a court is not necessarily an exercise of the judicial power or an act done in the administration of justice, some of these matters, dealt with by the Courts, in which there is not a justiciable issue have been acts characteristic of courts in this country for hundreds of years. What justiciable issue arises when an application is made for the admission of a person into the wardship of the Court or when one of the next of kin of a person who has died intestate seeks an order for the administration of the estate of the deceased by the Court? Many of the orders made by the Courts in matters relating to companies do not seem to present a justiciable issue at any stage. The Courts which now deal with the business formerly dealt with by the Court of Chancery make orders in many cases in which there is no justiciable controversy. While the existence of a justiciable controversy between parties may be a conclusive indication that the administration of justice is involved, its absence cannot be decisive in determining whether an act is or is not an exercise of the judicial power or part of the administration of justice".

27. In the context of bankruptcy, it is submitted, there is a lis or dispute between the bankrupt and his petitioning creditor or creditors and the adjudication and administration serves to determine the rights of the creditors vis a vis the bankrupt and the liability, if any, of the bankrupt towards them. This determination is final and may be enforced by the executive armof the State if called upon to do so in respect of the judgment of the Court. If not an express judicial function, it is certainly incidental and/or ancillary to a judicial function well within the characteristics outlined by Kenny J., in McDonald, particularly the final characteristic identified by the judge in that case.

28. There is a dearth of Irish authority on the precise nature of bankruptcy proceedings. In State(McKay) -v- Cork Circuit Court (1937) IR 650 the High Court held that an adjudication in bankruptcy made by a County registrar on a ex parte basis was not an administration of justice. The decision appears to have focused not on the nature of the adjudication per se but on the fact that it was made on an ex parte basis and the Applicant had not shown cause which would have required determination of the issues by a court.

29. In Australia the High Court in R. -v- Davidson (1954) 90 CLR 353 held that a statutory provision purporting to confer upon a registrar the power to make sequestration orders in bankruptcy was void as authorising a person who was not in court to exercise a judicial power. Whilst accepting that many of the steps in bankruptcy proceedings are primarily administrative with no judicial element involved, the majority of judges variously regarded the position as follows:-

"It is now long history of the English Law of bankruptcy that the process by which a compulsory sequestration has been brought about has always been of a description which may properly be called judicial...there is nothing, however, inherent in the nature of voluntary sequestration to make it impossible for the Legislature to provide some other means than a judicial order for the purpose....but if the Legislature chooses a judicial order as the means of effecting a voluntary sequestration, then chapter 3 of the Constitution, relating to the Judicature, comes into play. By a judicial order is meant an order which by its nature or description or the character given to it by the legislation involves an exercise of the judicial power of the Commonwealth". (Per Dixon C.J. and McTiernan J.)

Apart altogether from these considerations, it could never be overlooked that even though in many cases there might be no controversy to be resolved, a decision to make a man bankrupt effects the relative positions of persons whose interests are opposed, and that between those opposing interests there is much reason for insisting on an impartial adjudication according to law as there is in the case of litigation inter partes". (Per Kitto J.)

30. More recently in Gould -v- Brown (High Court of Australia 2nd February 1998) a constitutional challenge was made to the power of the Courts to make examination orders for the purposes of a winding up. Three of the judges held that the power was of a judicial character, and one held that the power, while not judicial in nature, was properly conferred on the Courts as incidental to or ancillary to the exercise of judicial power.

31. As stated by Brennan C.J., and Touhey J.:-

"We respectfully adopt the description of the examination process given by Lockhart J. in the Full Court of the Federal Court:-

"The examination orders, summonses and proposed examination which are the subject of this challenge are in truth but part of the processes that follow from the making of the winding up order, and which ultimately protect and adjust the rights of companies, their creditors and in some cases contributories. The Court's supervisory role in the course of a winding up is to ensure that the winding up laws are properly interpreted and applied to correct mistakes, and to supervise the exercise of compulsory processes in relation to the examination of persons and the obtaining of documents for the purpose and in the context of those examinations."

True it is that the function of the Court in conducting an examination is not the determination of rights and liabilities of adversaries, but the function is incidental to the winding up. The incidental character of the function and the traditional supervision exercised by the Court in performing it are sufficient to stamp it with a judicial character."

32. Gaudron J., expressed a view as to the significance of examination of witnesses which is helpful in understanding how the High Court and Supreme Court in Ireland in Redbreast were able to take such differing views on whether this process involved an administration of justice:-

"The examination of witnesses is a feature of the conduct of judicial proceedings. It is also a feature of the conduct of non judicial proceedings. But the power in question in this case is not properly characterised as one with a "double aspect". Rather it is an investigative power that courts have to carry out their judicial duties and which other bodies may also have to carry out their functions...the curial examination of witnesses in relation to the affairs of a person who has been declared bankrupt and companies that have been wound up is a familiar feature of bankruptcy and insolvency law. And a power to examine witnesses with respect to matters relevant to the proper administration of a bankrupts estate is readily seen as a power"attendant upon or incidental to the fulfilment of the powers to make sequestration in winding up orders". Accordingly, if jurisdiction is conferred upon a Federal Court with respect to bankruptcy matters or matters involving the winding up of corporations, a power of examination may also be conferred as incidental or ancillary to the exercise of judicial power in that regard."

33. Finally, Kirby J., stated:-

"Such functions therefore fall quite readily within the test of activity incidental to the exercise of judicial power stated in Lowenstein's case (1938) 59 CLR 556. Against a background of such a long established performance of judicial functions in the same or analogous fields, it is impossible to suggest that the examination of officers, on the application of a liquidator, falls outside the scope of the judicial power properly exercisable by a Federal Court. Although of their own nature such functions might seem at first blush to be non-judicial in character, in their context and discharged in connection with the performance of judicial functions, they fall within the judicial power or what was incidental to it."

34. In short, the Second name Defendant contends that while an examination cannot in isolation be characterised as a judicial function in itself, nevertheless if in the context of the entire procedure which is properly characterised as judicial it is so closely connected to the judicial procedure that it may be regarded as incidental or ancillary to it, it is then a function properly conferred upon the Courts.

35. The Third named Defendant submits that the Bankruptcy Act, 1988 is a consolidation statute, the purpose of which is to create an integrated bankruptcy code. A marked feature of that code is the support which the Act prescribes is to be given by the High Court to the process of bankruptcy. It is submitted that the power to examine persons set out in Section 21 of the Act is but one aspect of this judicial support.

36. It is further submitted that the bankruptcy jurisdiction of the High Court is usually invoked in the first instance by either an application for liberty to issue and serve a Bankruptcy Summons (Section 8), or by the presentation of the petition to adjudicate a debtor bankrupt (Section 11). In the former case, a debtor served with a Bankruptcy Summons may apply to dismiss the Summons (Section 8 (5)). In the latter case, the petition is on notice to the debtor who may dispute the petitioner's right to an order of adjudication. Even where an order of adjudication is made, the bankrupt may show cause against the validity of the adjudication (Section 16). It is submitted that each of these steps clearly involves an administration of justice by the High Court within the meaning of Article 34 of the Constitution in accordance with the principles adumbrated by the Supreme Court inMcDonald -v- Bord na gCon (No.2) (1965) I.R. 217.

37. The Legislature clearly envisaged that an Official Assignee might not get adequate co-operation from a bankrupt and in that context Section 21 provides an important tool to assist the Official Assignee when he encounters obstructions during the course of his investigations. Sections 19 and 20 of the Act impose obligations on the bankrupt to give assistance, make disclosure and notify the Official Assignee of alterations in his name or address occurring during the bankruptcy.

38. The actual process under Section 21 is usually conducted by a Solicitor or Counsel on behalf of the Official Assignee and the examinee is entitled to be represented by a Solicitor and Counsel. The examination is carried out before and controlled by a judge of the High Court who can rule on the admissibility and propriety of questions and answers. The examinee summoned by the Court may be committed to prison to await further order of the Court in respect of any refusal to be sworn, failure to answer fully or at all any lawful question put by the Court, or refusal to sign and subscribe his examination when reduced to writing.

39. The High Court is also involved in at least ten other ways in the implementation of the Bankruptcy Code, e.g.in approving offers of composition, granting leave to the Official Assignee to disclaim onerous property, setting aside fraudulent conveyances or transfers of property etc.

40. All of this involves and has the characteristic features of "administration of justice", alternatively is ancillary to the administration of justice by the Court in carrying out it's role under the Act.

In Murphy -v- G.M. (unreported, O'Higgins J., 4th June 1999) it was contended on behalf of the Respondents that the Proceeds of Crime Act, 1996 was unconstitutional in that it required the Court to carry out intrinsically executive functions such as the expropriation of assets. The issue was addressed byO'Higgins J., on pages 101 - 104 of his judgment where he stated:-

"....in my view the functions given to the Court under the Proceeds of Crime Act essentially constitute the administration of justice. The granting of injunctions, the appointing of receivers, the granting of tracing remedies and the determination of ownership of property are clearly matters with which theCourts have traditionally been engaged. I do not consider that they may correctly be classified as essentially executive or administrative functions.

The Proceeds of Crime Act envisages findings of fact and determinations by the Court with very far reaching effects. If and insofar as any of these provisions could be regarded as administrative or executive functions, they are not there by automatically remove from the ambit of the Courts. If the Act contains incidental powers conferred on the Courts which are of an administrative nature, that does not render the Act or those provisions constitutionally infirm. There is nothing in the doctrine of separation of powers as applied to the Irish Constitution that puts the functions of the Courts into watertight compartments. As noted in Kelly, the Irish Constitution,Hogan and White eds. (3rd ed. 1994) at page 50 'complete insulation is not a feature of the Legislature', 'complete insulation is not a feature of the Executive' and 'complete insulation is not a feature even of the Courts'."

41. The reasoning of O'Higgins J., in Murphy -v- G.M. was adopted and approved by McGuinness J., in Gilligan -v- CAB (1998) 3 IR 185.

42. It is further submitted that the mere inclusion among the functions given to the Court by the Legislature of certain powers which may not constitute an administration of justice does not render those powers unconstitutional. As was suggested by Murphy J., inIn the Matter of County Glen plc (under investigation) (1995) 1 ILRM 231, there are many areas in which the Courts have traditionally exercised jurisdiction which may not constitute "the administration of justice". These may include jurisdictions in relation to licensing, wards of court, winding up of companies, administration of trusts and charities, and so on. It can hardly be submitted on behalf of the Plaintiff that the Court must so exclusively concern itself with"the administration of justice" that it would deprive itself of its long established jurisdiction in each of these areas.

43. Finally, all Defendants relied upon the presumption of constitutionality which, it is submitted, in the present context means recognising that there is a wide public interest in protecting persons against the activities of a bankrupt. There is no question in the instant case of the law impairing or restricting a constitutionally protected right to a disproportionate degree. On the contrary, the designation of the Court, rather the Official Assignee, as the authority and power to conduct the examination must be regarded as a safeguardinter alia to protect the bankrupt's interest, and it may therefore be doubted whether the impugned provision restricts or impairs the Plaintiff's rights at all.

CONCLUSIONS

44. While the dearth of authority supporting the Plaintiff's submissions is in no way determinative of the issue, the unbroken thread extending over centuries whereby the examination of witnesses in the context of bankruptcy is seen and perceived as forming part of the administration of justice is, perhaps inevitably, an extremely persuasive factor. Indeed, it is one of the markers adverted to by Kenny J., inMcDonald -v- Bord na gCon.

45. It is quite clear from the authorities opened to the Court that there is no prohibition preventing courts performing certain administrative functions for the purpose of discharging their own functions.

46. It seems to me the examination of witnesses could be described as either an administrative function or a judicial function, as indicated by Gaudron J., in Gould -v- Brown.

47. There must be now some doubt as to whether the Redbreast case was correctly decided because, as Walsh J. stated In Re. Ltd. (1989) ILRM p. 765:-

"If the dictum of the former Supreme Court of Justice in the case of Redbreast Preserving Co. Ltd. (1957) 91 ILTR 12 at p.23 means that the constitutional requirement that justice is to be administered in public is satisfied by the public pronouncement of a decision based on evidence taken other than in public where that is not expressly authorised by a post Constitution Statute, it is clearly incorrect and ought not to be followed".

48. Further, Section 21 cannot be seen in isolation. It must also be seen in terms of the penalties involved for non-compliance with this Section.

Section 24 of the Bankruptcy Act, 1988 provides:-

"Where the bankrupt or any person summoned or brought before the Court refuses to be sworn or refuses or fails to answer any lawful question put by the Court or does not fully answer any such question or refuses to sign and subscribe his examination when reduced to writing (not having any lawful excuse allowed by the Court) or to comply with any order of the Court under this Act, the Court may order that such person may be committed to prison to await the further order of the Court."

49. Such a power is clearly regarded by the Legislature as necessary in the context of ensuring compliance with bankruptcy procedures and as being necessary in the wider public interest.

50. It is perfectly obvious that such powers could not be performed or discharged as part of any administrative function and Dr. Ford accepts that if this process was performed as a separate administrative function, the presiding officer would have to certify some offence to bedealt with thereafter by the Courts. If that be so, it is difficult to see what saving in time or expense would ensue.

51. Bankruptcy carries with it enormous penal and prejudicial implications for the person affected, be he a public representative, businessman, director of a company, member of an association or even as a person who may have to seek employment or endure social or other opprobrium as a consequence of both becoming bankrupt and being involved in its procedures thereafter.

52. As has been pointed out, the Bankruptcy Act, 1988 involves the High Court in the implementation of the Bankruptcy Code in numerous different ways, to be the point where it may fairly be said that the Court has the role of ensuring the effective administration of the Code. As such it's involvement must come, in my view, be regarded as forming part of the administration of justice.

53. However, even if I am mistaken in this view, the Defendants need go no further than to establish that the involvement of the Court under Section 21 is incidental and ancillary to the administration of justice. In my view it clearly falls within that definition. Nothing in the Constitution can be regarded or interpreted as constituting any prohibition on the High Court's involvement in this way.

54. I accordingly resolve the issue before the Court by amending the form of words contained in the order of the High Court dated the 5th day of July 1999 and by holding as follows:-

55. Section 21, Subsections (1)(2) and (3) of the Bankruptcy Act, 1988 are not invalid having regard to the provisions of Article 34.1 or any other provision of the Constitution.

Dated this 24th day of November 1999.

________________________

Signed: Nicholas J. Kearns