THE SECRET CASE.

Dominion, Volume 4, Issue 1098, 10 April 1911, Page 6

THE SECRET CASE.

PROTEST JUSTIFIED

I'UKTIIER PItESS COMMENT,

The "Otago Daily Times," under date April G, writes:—"Now that the proceedings in tho case have been removed into tho Court of Appeal, and the nature of the questions that are at issue has become public property, the community must bo more than ever puzzled to know why any of the judges of tho Supreme Court should have held that the action, listed at the present .slajc- as tli.it of Macdonald v. Kose and other*, was a (it one In bo dealt with in secret, so that any reference to it in the press involved (he risk of exposure to !he penalties that may attend contempt of Court. Tho proceedings, as will have been learnt from tho report of the sittings of the Court of Appeal, wero directed to secure an adjustment of accounts in two trust estates, to rivovor for these estates a sum of over .£3OOO which is admittedly due by tho trustee to them, and to effect the removal of tho trustee from office. It is difficult to see how it can be alleged that a case of this description was at any period such a case as, whatever tho position of the parties or of any of them, should be heard within clo?2d doors. But as it developed, the case took en a more serious aspect. The trustee refused or neglecfed to comply with ari order by a judge to pay into Court the sum in which, it was acknowledged, he was indebted to the estates he was administering. Thereupon application was made to the Court for the attachment of the trustee. Now tho attachment of ii person entails his arrest, and, failing compliance on his part ■ with the judgment of the Court which he has not observed, entails also his imprisonment. It is against the issue of u writ of attachment that the appeal that has boon engaging tho attention of the Bench of Judges has been brought. The point that is of importance, however, is that tho proceedings in the case, while it was still being dealt with secretly, involved the liberty of the individual. And tho fact that it did so clearly emphasises the justice of the protest that has been made against the course that was adopted by the Court. The action in the first place was one that impugned the administration of certain trust estates- by a business man. ft raised questions of commercial morality, concerning which, as a matter of public policy, it was right that the community should receive full and accurate information through the ordinary channels. It was in the interests of justice that publicity should bo given to proceedings of such a character. If a trustee is guilty of any breach of a trust that is committed to him—if his breach is even of such a kind as may be said lo be due to carelessness or to incompetence, and thus to be other than deliberate—and proceedings are instituted under the law ot the land to compel a restitution by him of such losses as (he estate entrusted to him has suffered at his hands, a wrong is inflicted upon tho public by the Court if it devises measures, or lends tself to the execution of any plan, whereby these proceedings may be hushed up. J-lus seems to us. to be an incontrovertible principle. When that principle is applied to the present ease, we can perceive no justification whatever for the extraordinary efforts that were taken to secure that tho suit, while it was yet betow the Supreme Court, should "be treated as a purely private affair that was of i,o concern to anybody outsido those directly and pecuniarily interested. And when the proceedings had been carried to a stage when tho liberty of (ho trustee was .it stake it was hidily impropsr that tho press should still be excluded from Court during (he hearing. It the trustee had not obtained leave to appeal, Hie Dominion might have been nble to claim for its Supremo Court the distinction that, under an order issued by it, a man hnd been committed lo gaol without the public hearing .inrtliing at nil of tho circumstances or without its knowing, except' through more or less unreliable gossip, why he had disappeared from hi* accustomed haunts. From tho beginning, however, the proceedings in tho case were of such a kind that it was against (he public interest that they should be taken by the Court in private and it is to be'hoped (hat the vigorous protest which has been evoked by the treatment of tho case as one of the exceptional class, to which it does not belong, Hint may be dealt iviih in camera will not be without its effect in future

What Public Welfare Demands. Writing on Wednesday last, the Napier Daiy I'elcgraph" said:—"The piiolic now begins to get from authorised sources some information concerning the ea«o winch tor so long lias occupied the attention ot the iNew Zealand Judiciary Iho merits of the case, on oiie side or tho other, M-β intend to ignore absolutely 'It is our duty to act in that manner until an open Court has pronounced a verdict. At the samo time it is impossible, seeing thonature of the allegations made, and taking into account what the Court had already done while sitting in secret, to avoid reflecting on (he extraordinary fact that our law allows matters of the kind to be dealt with in such a manner that even the names of the parties could not be published by the press without riskhi" committal for contempt of Court. Whoever is right, whoever is wrong, in this action (now in the light of day) it seems proper to say that in the pub'lic interest all tho proceedings which led tho Court to lssu? a writ of attachment should have been conducted openly. Wo may rest assured that this trials-ill find its way into Parliament. Tho public welfare demands this course. It is for tho public welfare that if there is to be any form of judicial work whatever, conducted by the judiciary, done in secret, all such descriptions of nermissiblo secret litigation should be rigidly defined. When an attempt is made to do this, common sense will teach those essaying the task that no litigation engaging the attention of a judiciary supported at tho public cost should be conducted with closed doors." On the previous clay tho samo paper said in the courso of an editorial note — "May we assume a small thing? May we assume, for exampl?, that if Thomas Kennedy Macdonald had been satisfied with the decision of tho tribunal which dealt with his case in secrecy, the public would have heard no more about it? Plainly that seems to be so. But, in that event, is it not likely that trying cases in secrecy is more common than is supposed, and that we do not hear of them because a Court sitting, behind closed doors, and with press excluded, has managed to commend its decisions to the parties to the litigation?"