THE TELEGRAPH QUESTION.

Cromwell Argus, Volume V, Issue 235, 12 May 1874, Page 3

THE TELEGRAPH QUESTION.

Wellington, May 4th. The Commissioner of Telegraphs forwards this memo, with his compliments : As the proceedings which arc taking placo in the case of Macassoy v.'' Bell* have occasioned doubts as to the power of the Telegraph Department to preserve telegrams' from scrutiny when litigants desire to obtain information which may possibly aid them in pending suits, we have been requested by the Telegraph Commissioner to briefly explain what has taken place in reference to the ease in question. It is, however, necessary to say that whether or not such a power should exist, the law unquestionably enables a litigant to compel the production of telegrams which are. described and specified in the subpama calling for,their production —provided, of course, that they relate to tho suit, and affect the parties thereto—and that, if they were letters, they would not bo privileged. In the present instance, the question is whether unspecified telegrams are liable to be produced in Court, and also whether they are liable to be inspected before production in Court. By unspecified telegrams is meant a general reference to any telegrams that may have passed between any persons, such reference being evidently made in ignorance of any especial telegram, but under the assumption or supposition that there have been some telegrams relevant to the matter. It may further be explained that the order to inspect before trial unspecified telegrams, or indeed, specified telegrams, as far as the department i 3 aware, is without precedent. There is one precedent, at least, for a subpoena to produce unspecified telegrams in Court in the case of the Taunton election. In that case, the telegraph officer appeared with the telegrams in Court, but was instructed to object to produce them. Being a witness only, he could not have the case argued by counsel, but the Judge upheld the objection, expressly, however, intimating that the decision was not to be regarded as a precedent. In the case of Macassey v. Bell, the plaintiff obtained an order to allow plaintiff or his solicitor to inspect all telegrams relating to the subject matter of this action, without even specifying the persons between whom they passed, and thus making it necessary to expose telegrams passing between a number of persons, some of them not parties to the suit, and some of them standing in the relation of clients and attorneys to each other. A subpoena was also served on anoffieerof the Department to produce unspecified telegrams in Court. The names of some"of the persons between whom the telegrams were supposed to have passed were specified in the subpoena. Of these, two were not parties to the suit, and the Department has since been informed they stood in the relation of solicitor and client, and this solicitor was also solicitor to the defendant. The Department at once decided not to take any notice of the Judge's order. The plaintiff was given to understand that such was the determination arrived at, but he took no step to enforce the order, f-'oine time subsequently a rule nisi was obtained by the defendant to upset the order, but with that the Commissioner had nothing to do. lie had already decided to contest the order on behalf of the Department, if the plaintiff attempted to enforce it. In respect to the subpoena it was at first decided to adopt the course pursued in the Taunton case—but to refuse to produce them unless the Judge ordered their production. It was, however, expressly arranged with the plaintiff that the fact of the search being made in order that the telegrams should be ready for production, was not to prejudice the objections to be offered in Court against the Subpoena. The telegrams indicated in the subpoena were selected and sent to Dunedin, but subsequently, when it was considered that the case could not be argued in Court on behalf of the Department, and that therefore the Court would not probably decide more than in the Taunton case, namely, the point in the particular, and when it was further considered how important it was to have at once decided the point as to whether the production of unspecified telegrams was compellable. The Telegraph Commissioner took proceedings prior to the trial to test, the sufficiency and force of the subpoena, but Mr Justice Chapman decided in those proceedings that on various grounds tho objection could not be urged en behalf of tho Telegraph Officer or the Department, but only by the defendant at the trial. The Telegraph Commissioner then came to the conclusion to instruct the officer to refuse to produce the tele, grams, so that on a rule to attach the witness for contempt being moved for, the Telegraph Department might on the argument urge" that there is no power to subpoena an officer to produce unspecified telegrams. It will be thus seen that the Department is jealously guarding the secresyof tho Telegraph, and is "determined to do so, unless after argument the Supremo Court decide that the law otherwise requires.