The Dominion. TUESDAY', MARCH 21, 1911. SECRECY AND THE PUBLIC INTEREST.

Dominion, Volume 4, Issue 1081, 21 March 1911, Page 4

The Dominion. TUESDAY', MARCH 21, 1911. SECRECY AND THE PUBLIC INTEREST.

, « . In view of the very keen public into rest manifested in the questions L arising out of the secrecy insisted | on by 'tho Supreme Court in an action now before it, and in order to clear away any doubts which may exist as to the nature of the proceedings under discussion, we feel called on to again review the situation. Wo made it clear in our previous references that up to a certain stage of the action it wns, in our opinion, perhaps desirable that the proceedings should bo in Chambers. There might reasonably bo differences of opinion as to whether, in the circumstances, it was in the public interest that any part of the proceedings should be in private, but : wc_ were prepared to concede the point to the extent stated. Our pro- ' test is made chiefly against the attitude adopted in the later stages of the action, and on the broad grounds . of principle. The inquiries we have j made have been devoted to two , phases'of the case. We desire to ! know: Firstly, whether the action is i a Court proceeding; and, secondly, if-it is, how it is that it came to be taken in Chambers. If the case has i been properly taken in Chambers, j then a third, question, and a very j important one, from the public's t point of view, is the question of the , limitations of the press in regard to j publishing matters which occur in 1 Chambers. _ Wc have made inquiries from.certain legal gentlemen as to what arc-the rights of the press so laras Chamber proceedings are con- ~ cerncd, and it appears to be indis- < pu table that when a matter is pro- . pcrly in Chambers the Court has the power to Order that such proceed- < ings be kept pi-ivato. The instances ; given in tho judgment of Mn. Justice NoitTH, quoted in our leading » article of Saturday last, show the .necessity : for this. But as we have already pointed out, the niain ques- ! tion in this <fase is whether the pro- J ceedings are'properly in Chambers at all; and there is a further ques- < /'Jon whether, being in Chambers, they should not still be made public, inasmuch as the proceedings are not within tho class of cases referred to by Mr. Justice North.

Tied as wc are by the order of the Court prohibiting publication of even thp names of the parties to the action, wc are placed at some disadvantage in putting before the public the facts which wc are convinced would enable us to prove absolutely our contention that it is not desirable, as a matter of public policy, that such proceedings as those under review should be conducted in secret. Wc can state'a hypothetical case, however, which we do not put forward as covering the facts in the present case, but which at the same time does convoy a very fair idea of the class, o{ action which has been conducted in private in our Court and kept from public notice over a period of several years. The case wc will take for the purpose of our illustration is that arising out of a tni3t estate. The beneficiaries under a will desired an adjustment of accounts in the estate which had been controlled Joy a certain gentleman as trustee. The Court granted the application, and a lengthy private investigation followed, conducted by the Registrar. • As the result of the investigations it was discovered that the plaintiffs were entitled to a certain sum, and the trustee by consent agreed to an order being made against him for an amount running into several thousand pounds. We will assume also that the beneficiaries desired that the trustee should be removed, and that the Court, with his consent, made an order for his removal. Then the question of payment of the amount admittedly clue from the trustee to the beneficiaries causes trouble, and eventually a writ of attachment against'the trustee was applied for. Under the Judicature Act:

A writ of attachment shall empower the officer to whom the writ is directed to arrest any person named in tho writ, and shall command such officer to brini? such person before tho Court at such time aiid placc as mentioned in the writ, and lo keep him in the meantime in such *afo custody as may be by law allowed. Where any person has been brought belore tho Court upon a writ of attachment, the Court may .commit him to prison for such term as lo the Court appears necessary and ns may bo by law allowed, unless he sooner complies'with the judgment of the Court for non-perform-anco or non-observance of. which lie has been committed.

It will be seen that when a writ of attachment is applied for the action takes ' on a new and serious phase. It bccomes at onee a question affecting the liberty of the .subject. llit. Justice Edwards laid it down quite recently in the Mgwhinney case that a malt«r affecting the liberty of the subject should most certainly not he taken in Chambers. He inferentially, therefore, decided that this was not a Chamber matter. However, apart from that ruling we ask whether such actions as the one wc have skctchily outlined above belong to the class which, should be heard in secret Whether it is in the public interest

that such proceedings should be hushed up. Should the defendant in an action of this kind he a man holding a public position, or be a man engaged in any business or occupation demanding public confidence, then more than over is it necessary, we contend, that the public be kept informed of what is transpiring. Whether the man is of blameless character, or whether he is regarded as an incorrigible rogue with no character at all, is immaterial to our point. Even if all the parties to ail action of this kind desired that it should lie heard in sceret the Court, we submit, has a higher duty to perform than to meet the wishes of litigants in such a matter. Questions of commercial morality might be involved which the public interest demanded should receive the fullest publicity, and this without the least, regard for the standing of the individuals most imI mediately affected. The hypothetical case which we have quoted does not profess to cover the full grounds of the action now before the Court, and wc do not wish it to be thought that in the discussion of this important question -xc have touched on or desire to offer any opinion on the actual merits of the case. Our purpose thrpughout has been to endeavour to show that in taking such cases in private the Court is not exercising its discretionary powers with its accustomed wisdom and that it is establishing a precedent which is not only opposed to the public interest, but Which may possibly also gradually undermine public confidence in our Courts of Justice themselves.