FIRST PHASE OF TRUST CASE.

Dominion, Volume 6, Issue 1584, 30 October 1912, Page 11

FIRST PHASE OF TRUST CASE.

ONE POINT SETTLED. FURTHER APPEAL REFUSEDTEXT OF DECISION. "To giro effect to penal legislation of this-kind, a 6ystem of inquisition is really necessary, and we need not be surprised to find that the Legislature lias thrown down time-honoured, barriers in tho shape of established rules of evidence in endeavouring to effect its object." This was a remark mado by Mr. Justice Chapman yesterdpy in delivering the judgment of the Court in tho appeal case, tho Merchants' Association of Now Zealand (incorpoiated) v. lI.Jf. the King. Tho judges, who heard .the appeal were Mr. Justice Williams, Mt. Justico Denniston, Mr. Justice Edwards, Sir. Justico Cooper, and Mi-. Justico Chapman. At the healing, Mr. C. P. Slcerrelt, K.C., with Mr. C. 11. Treadwell, appeared for the Sew Zealand Merchants' Association, whilo tho Solicitor-General (Mr. J. W. Salmond), with Sir John I'indlay, K.C., appealed for the Crown,'

The Main Point at Issue. In delivering judgment ycsteiday, his Honour suid:— "This appeal is from an order of the Chief Justice, allowing inspection of certain records, of .the appellant association. The main controversy is as U) tho production for inspection of its ininuto book. This is objected to on tho ground that everything has been disclosed which relates to the matters actually in controversy in tho action, that is to say, everything relating to sugar, and that the Solicitor-General is not entitled to look into other dealings with other persons in other classes of goods wholly unconnected with dealings in sugar. The So-licitor-General, by tho statement o£ claim, undertakes to prove- that the objects for which the association was estnu.-, lished, and for which it carries on. its business, ineludo the restriction' of competition among its njembers in the sale of merchandise and the controlling, determining, and influencing of the supply and price of such merchandise, and the creation and maintenance of a monopoly for its members and associates in the sale of euch merchandise, and these he treats as necessary averments in support of his charges'based upon tho existence among .the defendants of a commercial trust. Hβ further undertakes to prove that -the association constitutes, in respect of its objects and praotice, as set forth in the statement of claim, a commercial trust within the meaning of'the Commercial Trust Act, inJO. The averments which follow this- make specific allegations respecting tho existence of a ring or combination of sugar buyers, of which tho defendants other than the'association are members, the aims of that ring bang the controlling, determining, and influencing the supply and price of sugar,•and creating, and maintaining a monopoly for its members in. the sale of sugar. ...

What the Allegations Indicate. "Thus the specific allegations relate to dealings with'sugar while thero aro more general allegations as to the methods of tho alleged ring, and those connected with it, and the association. These allegations ire intended to indicate that to prove his case the Solicitor-General must establish tho objects and methods of the parties, including the association and.theacts of the defendants, jljy.means.of a,. Widespread in-, quiry into the" actual mode in'which the association carries on ifs business. Pnrar

graph 2i already quoted sets up in cited that tho association is for purposes rannoctccl with sugnr an instrument in tho hands of the alleged Hug, which it is averred, consists of eighty-three firms, companies, or persons currying on business in various tmrts of New Zealand, fifty five of whom nro members of tho association, and. twenty-eight of whom nrc not Tho ease for tho Crown is that it is necessary that tho Solicitor-General should know whom all these persons arc, and that their methods of business and tho method* of business of tho association in their hands, and in the hands of others, will establish a system which will tUrow light on tho question immediately under investigation.

"It must, in the fust place, bo observed that tho legislation is of n new and exceptional kind. In cffccl, it appears in some measure to revivo some forgotten common law offences, but i:i nny caso it introduces an extensive departure from the economic doctrines of more, modern times.

. . . This is not altogether new. Thus, in Tho Customs Law Consolidation Act, 1908, Section 295, certain averments when madp in an information, though amounting to proof of a criminnl charge, are deemed to be established unless disproved bv the defendant, and by Section 201 a defendant shall be competent and compellahle to give evidence. In the judgment of the Supremo Court, the Chief Justice refers to other similar enactments. The AVorkers' Compensatiomfor Accidents Act, 1000, Section 8, allowed tho Court to accept, admit, and call for such evidence as in equity and good conscience it thought fit, whether strictly legal evidence or not. . . .

The' Question for the Court, ■ "The question here, we think, is whether the Court should allow the advisers of the Crown to investigate matters beyond dealings in sugar, with a view to discovering whether they may bo offered in evidence. It must be. borne in'mind, that tho question is not one between private litigants and that an inspection of the minute book by the officers of the Crown does not carry the same, possible consequences as' an inspection by persons who might see some means of making. an improper uso of tho information obtained. There is no doubt that the legislature has deliberately armed the officers of the Crown with large powers in extending the powers of the 'Court as'to tho admission of evidence. It is not open'to .us to characterise -a . bona-fide n≤o of thoso powers as oppressive.

"Two important rules of evidence are introduced by Section 15. They are intended to reverse two pre-existing rules, both 'of which would have be?n applicable to this case. One of these removes the protection that the Courts have always allowed to a defendant in an action for the recovery of penalties, and allows a defendant in such an action to ba interrogated or compelled to produce documents, notwithstanding the fact that the answer to such "a question or the production of such a document 'would tend to criminate him in respect of nny offence under this Act.' Tho other refers to the relevancy of evidence. Under it, in an action of this sort, 'the Supremo Court may, in proof of nny fact in issue, admit and accept.-as sufficient such evidence as it thinks fit, whether such evidence is legally "'admissible in other proceedings or not.' ■ Dors this refer to the mode of proof of anything tendered merely, or to the logical effect of evidence when admitted? -We cannot read it otherwise than that full effect may bo given to the evidence when admitted. It is not merely to be admitted as evidence, but it. may be accented as sufficient, and it may l>3 accepted .as sufficient, in proof of any fact in issue-.- Facts tending-to prove system are not as freely admitted by our Courts as by the Courts of Scotland and some other countries, but they are admitted in Vfoihe other casfs. •In cases of poisoniiv-, we have a spscial rule formulated in Section 23 of the Eyid«ncs Act, 1908, allowing the .prosecution to prove other acts of poisonin? as yell-for the purpose of proving the administration or attempted administration by the tvccv\?cd as fov the- purpose, of proving the intent. . . .

It.is trite that that pmver h vested in the Court upon the trial, and consequently in the judge then presiding,, but it mil be the duty-of counrel at tlio trial to tender such evidence: as will support: the case for tho Crown, and one of the objects of discovery is that he may know

whether there, is in existence evidence which ho ought so to tender." Appeal Dismissed. "We therefore agree with the Chief Just ico as to tho effect, of the authorities ho lias cited. The whole system of tlw amiullant, if tlm appellant is shown to be an instrument of tlio other defendants, relates to matters in question in tho action, and the book jiinl documents in question priiiiii facie, nppcnr to relate to them. We also agree that, looking at the tonus of Section 15, the nllidavit tiled by tho appellant, to the effect that tho matters scaled up are not relevant is inconclusive. "For these reasons we are of opinion that this inspection ought to bo allowed, and tlio appeal dismissed. We think, however, that the Court is entitled to prescribe conditions, and that the inspection should only bo made by the Kolicitor-Gon-orul or by a solicitor of tho Court acting on the instructions of the Solicitor-Gen-era]."

Costs on tho middle scale we're allowed tho Solicitor-General. Ueave to Go to Privy Council Refused, and Some Dialogue. Mr. Trcadwell applied for leave to appeal to tho Privy Council under Kulo 2 (b), on the ground that it was a matter of (,'ivat public interest. Sir. Justice Denniston: Great public interest? -Mr. Treadwoll pointed out that there wero very largo interests involved? Sir. Justico Chapman: If the. decision had gone the other way it might hsivo been a mutter of public importance, but now it becomes tho interest rather of a body of persons. in , . Justice Dciiniston pointed out that the- appeal would mean locking up tho easo for a very long time. Sir. Tieadwell: That may ba unfortunate. Sir. Justice Denniston: A misfortune to lie. avoided. Sir. Treadwell remarked that tho High Court-of Australia had allowed an appeal in tho Coal Vend case. Tho Chief Justico and Mr. Justico Denniston both pointed out that that was from tho decision on the main issue—not an interlocutory proceeding. Sir. H. H. Ostler, on behalf of the Cro\yn, s'aid that he would not object to tho right of appeal, provided that tho Court would not stay proceedings. They could have the academic question tried if it was a matter of great public interest. Tho Chief Justice: You want inspection first?

Sir. Ostler: Yes. It would bo in tho interests of the ring of mcn,\who wo say aro monopolists, to tio up these proceedings for tiro or three years. Sir. Justice Chapman: You don't concede very much.

Their Honours then conferred, and tho Chief Justice'asked Mr. T,readwcll if he would accept leave to appeal on the terms suggested by Mr. Ostler.

Mr. Treadwcii: What's tho uso of that to me, your Honour? Tho Chief Justice then said thai tho leave to'appeal must bo refused. Tho Court did not think that tho , matter was one of great general or public importance, which in their opinion ought to be submitted to the Privy Council. It would mean a stay of proceedings, aud might hang the caso up for twelve mouths. ' MOTION ABANDONED. In the Court of Appeal yesterday, mention was mado of the adjourned motion for leave to appeal to the Privy Council in the case of Harris v. M'Grcgor, concerning a lease of Native land in the Mnrlinborough district. Mr. !•'. E. Ward, on behalf of the respondent, intimated that the motion was being abandoned. Tho ITon. H. I). Hell, K.C., on behalf of appellant, asked for costs. The Court awarded seven guineas costs. LEAVE GRANTED. /Leave to appeal to the Privy Council iias asked for in the ense of Brenda Beatrice Eeed v. the Equitable Life Assurance Compauy, an originating summons on matters relating to: the surrender value of mi enrloinnent policy. ■ ■'■ 'JUiei'cais waSfvrecently decided by tho Court" of Appeal in'favour of Mrs. Reed. Tho Hon. 1L I). Bell, ICC, with Jl;.

L. 1. iradfiold, appeared yesterday for tho win liable Life and asked for 'leave to appeal Ui the Privy Council, as tho question was one of great importance. Mr. C. 11. 31 orison appeared for Sirs. Tho Court granted the necessary leave, appellant to pay respondent's costs (limited to .WOO).