SUPREME COURT.

Evening Star, Issue 3487, 27 April 1874, Page 2

SUPREME COURT.

(Before Mr Justice Chapman.) Monday, April 27. His Honor took hia seat on the Bench at ten o'clock. MOTION FOR ATTACHMENT. Mr Haggitt: Before the jury in Regina v. Long is palled, I have a motion to make for a rule nisi in the case of Macassey v. Bell. The motion is for a rule nisi calling upon the defendant, Mr G. K. Turton, his solicitor, and the directors of the ‘Otago Guardian ’ Printing Company to show cause why they should nob answer the matters complained of in them respectively in the affidavit of James Macassey and Charles Cargill Kettle, sworn and filed; to pay ■tbe costs of this application; or in default of sufficient and satisfactory answers

why attachment should not issue against them. Your Honor is aware that an action for libel is now pending in this Court, m which Mr Macassey is plaintiff, and Mr Bell, proprietor of the Evening Star, defen. dant. On the l3fch March last your Honor made an order ini that action allowing the plaintiff or his solicitor to inspect and take copies of certain original telegrams relating to the subject matter of this action. This order was drawn up in and followed the form used on several previous occasions, and I believe followed the order made in Burke v. Anderson and Mowat, which order at the time it was made did not elicit any comment from the Press. On this day week a rule nki was applied for on the part of the defendant, and granted by your Honor, to rescind the order for the inspection of these telegrams. The time for showing cause against that has not arrived. His Honor : The time has arrived,. b«t 1 have not been able to sit. Mr Haggitt: At any rate, the rule has not been made absolute, so the matter is still pending before the Court. On I'riday last, the 24th instant, an article appeared in the ‘Guardian,’ commenting, upon that order

and upon the proceedings of this action in an unfair and improper manner—in such a manner as is calculated to. prejudice the fair trial of the action. - (Counsel here read the material parts of the Article complained of). This article contains gross misstatements as will appear by affidavits which L shall read bye-and-bye, and the most careless perusal of it will show that it contains matter calculated to influence the result of the proceedings pending in this Court. In the first place, it is calculated to prejudice the trial by inducing' the public, irom whom, of course, the jurors will be drawn, to believe that the plaintiff has obtained an unfair advantage over the defendant in obtaining a complete knowledge of the latter’s case/ by means of inspecting telegrams passing between the defendant and his solicitor and other persons, who, ip utter ignorance of the order made by your Honor, corresponded by wire, in the belief o£ the inviolability of thejr telegrams. These are alwiwt the words oi this arfideifttilf, i abed

hardly say,vif.it goea'fbrth td :&&■ public that one party has guned an unfair f *dvantage over the other, any statement t)|4hat kind is calculated to' prejudice the public mind against that party. In 'the next place, I contend that the article contains matter tending to prejudice the plaintiff, inasmuch as the paragraph relating to the plaintiff’s counsel may fairly be presumed to have the effect—m, fact, there can have been no other intention in the mind of the writer than to intimidate the plaintiff s counsel and to cause them to throw up their briefs. In fact, the article contains a distinct threat that, unless they do throw up their briefs, that paper at any rate will accuse them of complicity in oh*

taming the order, which they characterise in the strangest possible terms they can give vent to. in the next place we complain that the article has a tendency to influence the Court in its decision upon the rule now pending to set aside the order made in Chambers; and the manner in which that influence is attempted to be exercised is by pointing out to the learned judge who made the order, that an application for an order was alleged to have been made to a judge in Kngland under circumstances of a somewhat similar nature as regards the subject matter, and that that order had been refused.

His Honor; That was the case upon which I granted the rule. I)o you mean to say it is contempt for publishing a decision of an English Court ? ......

Mr Hagg.tt: No, but it is contempt to compare the decision of one judge with another, and to speak of the one judge with approval, and of the other with disapproval. If either of these contentions is correct that the article has the effect of influencing the trial of the cause, ,or of influencing the Court in its decision upon the rule nffi-— a contempt of Court has been oemmitted j ; fend the motion which I have to make can he granted. (Counsel cited on the first bbiiifc Tichborne v. Mostyn, L.R., 7 JB., 55: Daw v. Healey, L.8., 7 El., 65; and Cafnerbn the 'Otago Daily Times’, Macassey’s reports. ) ,

His Honor: Your affidavit says MrTnrton, tke defendant's solicitor, was away at the time. How canyon ask for a rule against him ? °

Mr Haggitt; I will show yonr Honor presently. There are passages in the article itself which show that the'information mast have been obtained from Some person connected with the case bn the part of the defendant, or from the defendant himself. It is sworn that the information was not supplied by either the plaintiff or his solicitor. His Honor inquired what connection Mr Bell had with it.

Mr Haggitt: Nothing, expept what I have already pointed out. There are matters stated in the article which could only have been supplied by defendant or hia solicitor., Hm Honor: Mr Bell having a paper of his own is armed with the means, and need not travel even next door and get another paper to write them.

Mr Haggitt; All we ask your Honor is tbit thev should answer the affidavits. If they reply that the information was not supplied by them, that is a complete answer, so far as they are concerned. (Counsel again. referred to the case of Cameron v. .the * Utago Doily Times’.)

His Honor; The two cases [Cameron’s and the present one] are very different. There, one of the judges was spoken of in terms of contempt. In this case, it is surely not attempted to be said that it is in disrespectful terms to say “ we think, the decision , of the judge is wrong; it is contrary to the decision of a judge of an English court ?” , . Mr Haggitt; It upist net be discussed at all while the matter is pending before the Court.

His Honor: That may bo;bbu s t have never regarded it as anything like unfair to say : “I think your decision in such a case wrong,” provided that it is done in respectful terms.

.Mr Haggitt; But after the decision ii given.

His Honor ; The order here was made in Chambers, and apparently it was final. There certainly was a mode of sweeping it away, which apparently was not known. Mr Haggitt; That that step Was taken was known to the writer. .

His Honor; That does not appear: the article merely says “ We believe, &o.”lpub it generally, is it contempt to express in fair terms that a judge’s, decision did net agree with another judge’s ? 'Mr Haggitt; I submit it is, while the prooeedings are pending, and it is a still great* contempt to question'that ■decision, ' His Honor: If it is calculated to prejudice the case is another thing. Sp far as com-, menting on the decision by the judge is concerned, the judge or the Court may be left; to take care of its own dignity, unless the comments prejudice the case. Mr Haggitt then read the affidavits of Messrs Macassey and Kettle, in which it was sworn that many passages in the article complained of were calculated to influence) the public mind, and'unfairly prejudice the trial of the action ; that there was.no shadow.' of foundation for the statement that the plaintiff or hia solioitor had been allowed to, inspect and take copies of telegrams, because at the time the article was written the, telegrams alluded to had not reached Dunedin. 1

as they were received from Wellington by Mr Lubecki on the 24th instant. His^Honor; That was after granting the rule 7<wt, which effectually stopped the order of-March 13 ' r ' t t Haggitt replied in the affirmative. The telegrams had beett forwarded hete on j conditions approved by the Attomey rGoneral; that the telegrams must not"-Wih-spected, hut would be produced at the trial when the question of the legality of theip production in evidence was to be raised, ilie learned counsel concluded by stating that in this morning’s ‘ Quardian ’ there appeared another article on the same subject. His Honor , said he would like to look at the article before he determined whether ha' could grant the rule.