Judge Hickman Molesworth



Judge Hickman Molesworth. who has for so long been associated with the administration of the insolvency law. Is of distinguished and interesting descent. His ‘Immediate progenitor, Sir Robert Molesworth. has been described by an eminent authority as —the father of mining law in Australia and by some is regarded as the greatest equity lawyer we have seen in the Southern Hemisphere.

A more dreary atmosphere than that which pervades the Court of Insolvency it would be difficult to imagine. Yet there Judge Molesworth presides, and has presided for 20 years. Wreathed in perennial smiles, crowned with optimism. Certificate applications do not weary him, and to tedious motions to the Court he lends an ever-willing ear. He grows jovial and happy on interminable examinations, which often lead to nothing but costs and outer darkness. Like Dernocritus of old, his wise philosophy is to laugh and never to grieve, over the folly of his fellow creatures. Each day that passes without a smile represents so many hours irretrievably lost and wasted. How many tragic histories have been unfolded in your court!” a friend once dolefully remarked to him. Yes and how many comic ones too,” replied the judge. —Don’t forget about them.–

The judge of the Insolvency Court is required by Parliament to play many parts. In addition to watching over his own particular domain, He is called upon to officiate in the County Court the Licensing Court, and the Court of General Sessions. In one aspect, the diversity of work thus entailed is acceptable enough, because insolvency law in itself is hardly a subject of soul stirring interest. It has, in fact been dubbed the Cinderella, or despised sister of the legal family. Prosy statements in regard to assets and liabilities and creditors. Secured and unsecured crop up as regularly as recurring decimals constituting a fifty times told tale.

“Vexing the dull ear of a drowsy man.” Albeit not of a drowsy judge.

In this Particular jurisdiction, there is perhaps no more important or frequent class of claim than those arising in applications for certificates of discharge. An important decision in relation to these was given by the Full Court some years ago, which has served as a useful guide to Judge Molesworth ever since in administering the insolvency law. The Act of Parliament enables the Court to grant a certificate after three months from the date of sequestration. If a dividend of 7/- in the £ 1 has been or will be paid: but allows this condition to be dispensed with, if failure to pay the dividend is due to circumstances —for which the insolvent cannot, in the opinion of the Court. Justly be held responsible. In the cast mentioned, the insolvent had ushered enormous loam by investing (without reckless speculation) in the shares of a company which, in 1892. Was ruined by the great financial crisis. When the insolvent purchased the shares he was a man of large means and able to pay all the calls that could have been made. The Full Court, under the circumstances, allowed the condition requiring payment of the statutory dividend to be dispensed with. “The conduct and dealings of the insolvent must be looked at.” they said not in the light of present knowledge, but, at far as possible in the view in which they would have presented themselves to a prudent man at the time they occurred.”

In accordance with the spirit of the insolvency law, as declared by the Full Court in. this case, Judge Molesworth has since then released many an insolvent from his incubus of indebtedness, and given him a much-needed fresh start in life. He holds. Moreover, that in the absence of fraudulent conduct or rash speculation. The principle involved in the Full Court decision enables him to grant unconditional certificates, not merely to insolvent whose liabilities are on an imposing scale, but also to those who are indebted for small or ,relatively small, amounts. In the c~ referred to. his Honour’s decision was reversed by the Full Court, after they had taken time to consider their judgement. A recent and much-discussed decision of his was. However, after being overruled by the Full Court. Subsequently restored by the High Court. Several points were involved in the cast; but the one which principally aroused public interest was whether certain property (including a grocer’s license). Which was claimed by the trustees in insolvency. had been purchased by the insolvent’s wife, and so belonged to her. Or whether it really belonged to the insolvent himself. In the result. the High Court disallowed a claim by the trustees to the property in question. No cast of fraud. they maintained. had been established an against the wife. the fact# at most pointing to suspicion.

It was an odd chance that led Judge Molesworth to the occupation of the Insolvency Court Bench. His practice as a barrister was concerned principally with jury cam. and more particularly with the defence of accused persons. many of whom he has. assisted in restoring to the bosoms of their families. A story—often repeated in legal circles. but. perhaps. not so familiar to those beyond the professional pale—is told of the embryonic judge in insolvency which brings to wind the days of his illustrious father. Sir Robert Molesworth. The Supreme Court then was on the site occupied by the present City Police Court. During the progress of certain proceedings before the eminent judge referred to. a considerable point from without became noticeable. whereupon his Honour despatched a constable to find out who was creating the disturbance. and, if necessary. to apprehend him. The constable tallied forth. and presently returned with the announcement that it was “only young Mr. Hickman Molesworth addressing the jury in the adjoining court. From  crime to insolvency is in some. though not in all. respect* a far cry. The Insolvency Act confer upon the judge power to deal with a variety of offences relating to fraudulent conduct. and in adjudicating upon them an experience in criminal cases is of undoubted service. Nor must it be forgotten that insolvency is only one of the “departments- presided over by the judge in that jurisdiction. Judge Molesworth, as already mentioned, —goes—Sessions. and here the knowledge gained early in his carter stands him in good stead. As a judge. he is considered to appear to greatest advantage when determining questions of fact rather than points of law. And. to discriminate still further, a shrewd observer has remarked-what may seem paradoxical-that his decisions are usually more accurate when given immediately after the proceedings have concluded than when he has taken time for consideration. No oat will deny that Judge Molesworth endeavours at all times to decide upon considerations of justice and common sense. In some instances. it may be thought that he presses his desire for an equitable decision too far. by depriving the successful party of portion of the fruits of victory. and to tempering the wind to the &horn litigant.

Familiarity with courts of justice by no means conduces to the formation of a  credulous view in regard to human conduct. Nor, indeed. could any judge be regarded as having fully profited by his experience if he forbore to peer behind the scenes of the drama played before him. The teamed judge in insolvency is certainly not easy to capture by cajolery or plausibility of any kind. True it is that nothing is set down by him in malice. while good humour was never more conspicuous in any man. But. with the mistrust bred of sad experience. he looks askance at the ways of his fellow creatures. In order that he may be satisfied. the cards must all be placed upon the table-face upwards.

Anecdotes crowd thickly around come judges, just as they leave others almost deserted. Some of those in which Judge Molesworth figures bark back to the days when he held forth to the jury in the capacity. not of judge. but of advocate. Under the system of legal procedure then in vogue. jury casts weft far more frequent than they are to-day. Mr. Molesworth’s services as a barrister were freely availed of. especially in the Western District. where he became so familiar a figure that foremen on juries. in announcing their verdicts, would sometimes say that they found —for Mr. Molesworth In point of originality. perhaps. it would be difficult to surpass a reason supplied by a jury for their verdict in a cattle-stealing case in which he was counsel for the defence. The evidence for the prosecution was overwhelming; but the jury. to everyone’s surprise, found the prisoner not guilty. Oat of their number was afterwards asked privately what induced them to give such a verdict. “Well.” he explained. —we reckoned it must have cost the prisoner at least £20 to cover Mr. Molesworth’s fees. and surely that is enough to pay for any cow!” The reasoning certainly was unanswerable!

On one occasion his Honour (at the Bar) received an amusing reply from  an lrish witness. He was cross-examining the latter, with a view to shaking his credibility, and. among other things, asked him whether he was not once put upon his trial for sheepstealing. —I was!” said the witness with alacrity; —and1 was ably defended by Counsellor Moulesworth, and honourably acquitted by a jury of my fellow –countrymen!” of all the occupants of the bench there is probably none who feels the restraint incident to his position so keenly as the judge in insolvency. Whether it be that the unusually prosaic branch of the law which he is destined to administer produces a necessary reaction or whether it be that his Honour has an exceptional amount of bonhomie, be shows. when the Court bat risen. a keen exuberance on bring freed of judicial harness. It is a palpable relief to him to sometimes forget that he is called upon to deliver judgement ex cathedra upon his fellow-creatures. His pleasure is to foregather with the Bar as if he were still one of their number. With a hatred of conventionality. he wean a hat and coat (the former now historic by a recent description of it as—greenand mossy—) which are quite unique, and, in conjunction with their owner’s cheerful visage, are suggestive of happy pastoral avocations. Society and outdoor functions of all kinds he freely patronises. while for exercise he takes a keen zest in riding and hunting, rightly deeming that

“Tis better to hunt in fields for health unbought

Than fee the doctor for a nauseous draught.”

One practice observed by his Honour in the Insolvency Court is novel and interesting. He never robes. Quixotic folk may associate the disuse of wig and gown with want of dignity and a loose conduct of court proceedings; but the observance of the same practice by the judicial committee of the Privy Council seems to afford a sufficient precedent for its adoption.

The profession owe a real debt of gratitude to Judge Molesworth for the consideration he shows for their needs at certain times. If. for example, counsel desire an adjournment on grounds which ordinarily would be regarded as unacceptable, he will make his utmost endeavour to meet them in the matter. Naturally. he will not accede to every possible request for an indulgence, but the worst that ever happen* to an unreasonable claimant is a mild protest against converting the Court into a “chapel of ease.” Ebullitions of temper. it may be remarked. are happily unknown in the Insolvency Court.

With the public his Honour is appreciated. not merely for his tolerant disposition, but because he administers in a spirit of reasonableness a jurisdiction in which the necessity for a Arm but humane attitude is paramount.

Hickman & Lance

Edlington was the family homestead that was bounded by Auburn Road and Burwood road at the time at the end of the railway line.

The farm had its own football team that was made up of the staff and friends. The Edlington football team closed the year before the Hawthorn team was formed down the road.





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