CHAPTER XXXVI

OTHER CENTRAL COURTS

Two other courts having central, though somewhat special jurisdictions, require a word of notice. These are the Court of Insolvency, and the Vice-Admiralty Court.

The former is a court of record, having jurisdiction in and for Victoria. Within its proper scope it has the powers of the Supreme Court, and its judges sitting in chambers have the powers of judges of the Supreme Court acting in a similiar capacity. It has original jurisdiction in all matters of insolvency, except where expressly prohibited by statute.

The Governor in Council is entitled to appoint "a judge " of the Court of Insolvency, and all judges of county courts in Victoria are ex-officio judges of the court, subject however to the local limits of jurisdiction imposed upon them by the assignment of special districts.2 So that the Court of Insolvency would appear to be a central court with local branches. An appeal from any order of the court lies to the Supreme Court.3

Proceedings are commenced by the presentation of a petition to the court, either voluntarily, by the insolvent himself or his representative, or, as a hostile step, by creditors upon the happening of certain events.4 In the voluntary cases, the court, upon proof of the facts, makes an order vesting the estate of the petitioner in one of the official assignees of the court.5 In contentious cases, the court makes a provisional. order, or order nisi, contingent upon the alleged insolvent not showing cause within a certain time, and, in the interval, the

CHAP. XXXVI

VICE-ADMIRALTY COURT

3

323

court may place the estate under temporary sequestration.1 When the order is made absolute, the estate, as in the voluntary cases, vests temporarily in an official of the court, but the creditors are entitled to appoint a trustee and a committee of inspection, and upon confirmation of the appointment by the court, the property passes to the trustee. The insolvent is bound to give up all his property except that which he holds as trustee, and the tools of his trade and necessary apparel and bedding of himself and family to an amount not exceeding £20. The trustee or assignee realises the estate and distributes it amongst the creditors, having for this purpose large disciplinary powers over the insolvent. If the latter complies with the provisions of the law, and has not in the opinion of the court been guilty of causing his own insolvency by fraud or negligence, he may be granted his certificate of discharge, which will free him from all claims provable in his insolvency.5

Instead of adopting the process of the court, the creditors may accept a proposal for liquidation by arrangement, in which the estate is realised privately by the creditor's trustee, or they may accept at once a payment of a composition without realising the estate or divesting the insolvent of it."

8

The Vice-Admiralty Court is an Imperial tribunal created by a statute of the year 1863, which provides that upon any vacancy of the office of judge of a Vice-Admiralty Court in a British Possession becoming vacant, the Chief-Justice, or Principal Judicial Officer of such Possession, shall ex officio occupy it, with power to appoint, with the approval of the Governor, a registrar or marshal. Before the passing of this statute it was usual to appoint a vice-admiralty judge for each colony by letters-patent under the seal of the High Court of Admiralty, and this power is still reserved by the statute." By a later Act, the judge is empowered to appoint a deputy judge or judges, with deputy registrars and marshals, subject to the disallowance of the Admiralty, and the deputy judges may sit either with or apart from the judge, or in the same or other places, according to the discretion of the judge.'

10

1 Insolvency Act, § 39. This power is also given to a judge of the Supreme Court, and, as a matter of fact, contentious business of this kind is usually disposed of by the Supreme Court.

The Court of Vice-Admiralty has jurisdiction in all claims for seaman's and master's wages, for services rendered to a ship, and for damage done by a ship, as well as for claims arising out of liens and mortgages on a ship. It also takes cognisance of all breaches of the Regulations of the Royal Navy, and of all matters arising out of droits of Admiralty. As a general rule it is immaterial that the cause of action has arisen beyond the limits of the possession in which the court is established.2

The judge and officials of the Vice-Admiralty Court are paid by fees from time to time fixed by the Admiralty, and an appeal lies from a decision of the Vice-Admiralty Court to the Privy Council. But no appeal can be brought after the expiration of six months from the decision complained of, nor can it be brought at all from any merely interlocutory order, except with the permission of the judge.*

[Note.—The reader is warned that the position of the Vice-Admiralty Court may at any moment be changed by the application to the colony of the Imperial statute 53 & 54 Vic. c. 27. But the statute expressly provides that its terms shall not extend to Victoria until they have been made specially applicable by Order in Council, and it is believed that no steps to obtain this Order have yet been taken.]

B. LOCAL GOVERNMENT

1. LEGISLATURE

CHAPTER XXXVII

MUNICIPAL COUNCILS

In the case of a community, such as England, which has been gradually formed by the coalescence of a number of formerly separate units, it is exceedingly difficult to give any coherent account of the state of local government. Some of the local organs date back to a time far older than the central government itself. Others have been gradually dovetailed into them in the course of centuries, till the result is a bewildering mosaic without unity or method. Such was, in fact, the case in England, until the statutes of the present century1 made some attempt to reduce the chaos to order. Parishes, hundreds, municipalities, highway districts, petty sessional divisions, poor law unions, electoral districts, health districts, ridings, and other units of government lay huddled together in confusion, overlapping and rivalling one another.

Happily in the case of Victoria the materials are far simpler. In the true sense of the term, there never has been any local government in Victoria. That is, there has never been any local unit evolved spontaneously and independently of the central power. Every local authority is a creation either of the Imperial or the colonial legislature, and is a subordinate body deriving its existence from a higher source.

This fact has, naturally, produced a palpable unity in the system. Powers of government conferred upon local bodies

1 E.g. the 5 & 6 Will. IV. c. 76 and 51 & 52 Vic. c. 41.

have from time to time been codified and arranged with a view to their working as a whole. Care has been taken to keep

the hand of the central authority over all.

Putting aside for the present the judiciary aspect of local government, we may say that there are, practically speaking, two units of local administration, the municipality and the mining district. Others doubtless exist, and may in the future rise into great importance. The needs of irrigation and water supply, and the efforts made to satisfy them, may, in Victoria as in India, give birth to a widespreading system of local administration. At present the system is limited in its operation. Land districts also there are, but these tend to disappear as the Crown lands are disposed of, and the influence of the municipalities extends. "Vermin Districts," with powers of self-government, exist (as we have seen) in the Mallee Country, but their scope is limited. Counties and parishes are mere geographical expressions.

Of the two units which we have chosen for discussion, there can be no doubt that the municipality is infinitely the more important. Its scope is now almost universal, its powers are constantly being extended, while the scope and influence of the mining district tend to contract. We will, therefore, deal with municipal government first.

It will be remembered that we have brought our sketch of the developement of municipal government up to the year 1855.1 In that year there existed a general system of local government in the urban districts, framed under the "Act for the establishment of Municipal Corporations.' This statute was slightly altered by two enactments 3 passed in the years 1856 and 1860 respectively, and from the latter we learn that at the time of its appearance fifty-six municipal districts had been created under the general Act.

4

Shortly afterwards the "Municipal Corporations Act 1863" recast the scheme, by constituting the existing districts "original boroughs," and providing for the creation of new "boroughs," thus introducing that distinction of name between urban and rural municipality which has since been

1 Ante, pp. 168-173.

2 18 Vic. No. 15.

3 19 Vic. No. 16 (excluding women from the municipal franchise), and 24 Vic. No. 114. 4 27 Vic. No. 184.