SUPREME COURT.

Evening Star, Issue 3531, 17 June 1874, Page 2

SUPREME COURT.

IN BANCO. Tuesday, June 16. (Before Mr Justice Chapman.) THE INVIOLABILITY OF TELEGRAMS. Dodson v. Macandrew.— This was an application for a rule nisi moved for by Mr Macassey, directed to the defendant, and to the Commissioner of Telegraphs, calling upon them to show cause why there should not be produced all telegrams which had passed between the defendant, the General Government, the Provincial Government, Mr D. L. Murdoch, manager of the New Zealand Loan and Agency Company, and Messrs Proudfoot and Oliver, respecting the sale and transfer of the Port Chalmers railway refreshment rooms. The exact terms of the application were to show cause why the telegrams should not be produced at the trial of the cause, and why before the trial the plaintiff or his solicitor (Mr J. H. Harris) should not be at liberty to inspect and take copies of them upon such terms as are defined by the Telegraph regulations, or as the Court may think proper to impose. In moving for the rule Mr Macassey said he found, on examination of the Court records, that on some six different occasions orders had been made ex parte, in Chambers calling on and requiring the officer in charge of the Telegraph Department in Dunedin to produce telegrams at the trial of a cause, and to give the party applying the option of inspecting and taking copies of them before the trial. Those cases were Burke v. Anderson and Burke, Aitken v. Pritchard, Nutter v. Pritchard, Wenkheim v. Arndt, and Macassey v. Bell. The differences between those cases and the present application might be summarised thus—the former were ex parte , and called upon a subordinate officer of the Telegraph Department to produce the telegrams. Any mischiefs arising from the order being made ex parte, and directed to a subordinate officer of the Telegraph Department, would be met by the way in which the present application was made. With regard to the application itself, there were three questions which would present themselves to the mind of the Court, and in respect of which it was necessary to satisfy the Court. He would be willing to assume in the first place that it was incumbent upon the plaintiff to show that the evidence Which he by his application sought to obtain was material and necessary to support and prove his case—in other words, should be covered by those rules which regulated the granting of interrogatories or the production of evidence which lay more immediately under the control of the opposite party. The second point was that telegrams had no privilegejwhich any other correspondence had not; and the third was that the circumstance that ; the Telegraph Department was under the control of the Government made no difference, unless it involved a disclosure of State secrets. At the outset, it might be fairly assumed that if the application should not be made ex parte , the defendant at all events should have notice of it; therefore no question would arise in the mind of the Court e . ur S e d by counsel in showing causa that the defendant should not be made a party to the present application. Leaving that matter he had a few words to say, supposing he succeeded in showing the three points he had undertaken to establish were established to the satisfaction of the Court, as to the Commissioner of Telegraphs being the proper officer. His Honor : It is necessary to make him a party to the rule because of the public element I suppose. ‘ ’

Mr Macassey : Not so much that as because if the Court were to make an order requiring an officer to produce these telegrams, the head of his department could give instructions to the contrary, and thus the Court would be remediless, and its processes set at defiance Ihe authorities were clear on that point, the most recent case being Crowther v Appleby, hi,, N. 8., 580. As merely touching on the question that the Commissioner being the head of the department, and having the control of the subordinate officers, was the only proper person who could be brought before the Court he cited ThomhiU v. Thornhill, 2, Jacobs and Walker, 347, and Austin v. Evans, Manning and Grainger, 430. Mr Lubecki, the officer in charge here, might say he must obey his n$ }e > 1 r r ’ and (^ cli ? e to produce ; therefore he (Mr Macassey) had to come back to the position that the Telegraph Commissioner was the proper person to show cause. He felt himself under the obligation of establishing affirma. tively that this evidence which wm desired to be secured was calculated to help the plaintiff m proving his case. To a certain extent it might no doubt be said in showing cause that the apWM a roving one; that it was going into the enemy scamptbfindoutwhat had passed between the General and Provincial Governments, the New Zealand Loan Agency, and Messra Proudfoot and Oliver; but if it helped the plaintiff and enabled him to establish hie claim, he was entitled to have that evidence produced. A strong case in point was HodsoU v. Taylor 29 L. J., N. S., 534. What would the production of the telegrams establish ? (The declaration set forth that plaintiff had been lessee, under Proudfoot and Oliver, of the Port

Chalmers railway refreshment rooms at a rental of L 251, payable quarterly; that after the tenancy commenced the Provincial Government purchased the railway, and accepted plaintiff as a tenant, and that shortly afterwards the rooms were let to G. Proudfoot, and plaintiff forcibly turnad out of possession, despite a condition that any incoming tenant should take the stock, furniture, and _ fittings, at valuation.] Plaintiff and his solicitor, by their declared that the production of certain telegrams was necessary to establish and support plaintiff’s claim for damages, arising out of the breach of that covenant. Application had been made to both Mr Lubecki and the General Manager of Telegraphs for their production, and the former replied that to do so was contiaty to the regulations, and Mr Lemon simply that the application could not be granted. On June 6 defendant’s solicitor wrote that “if the Telegraph Department was willing to produce the telegrams (if any) for inspection, the defendant will raise no objection to your doing so.” His Honor : That reduces it almost to a question of the regulations. Mr Macassey : The question is one of principle, and it is for the Court to determine whether a litigant has the right of compelling the production of telegrams, which he believes are necessary to support his action. ; His Honor ; It seems that the defendant himself makes no objection. _Mr Macassey had no further need to trouble his Honor in showing the materialship of the telegrams. As to the second point, that telegrams were not more privileged than any other correspondence His Honor; You will admit that they are subject to the same privilege as letters have been for the purpose of reference. Mr Macassey; Entirely so, but to no further privilege. His Honor: That is the rule as to letters, and in the absence of any express decision upon telegrams thogeneralanalogy—l will not say rule —is that the privilege applying to correspondence sent through the post should apply to telegrams. There are some very patent distinctions ; and one of-the most conspicuous is this ; When I drop a letter into the post it ceases to be mine, and when the person to whom it is addresed gets it there is an end of it, so far as the Post Office is concerned. But the Telegraph Department keeps oopies ef all telegrams. You cannot make application to the PostmasterGeneral, who has.no knowledge of them, and never sees their contents, because the answer to you may be to apply to the parties exchanging them, and to bring them into Court with their telegrams in their hands. The mere accident that copies of telegrams are necessarily kept in the office dees not really alter the case as between the Telegraph and Post-offiee Departments. It must be taken that the Telegraph Department has no knowledge, has no record of them. Mr Macassey observed that the distinction drawn by his Honor was an undeniable one, but it had existed for years. His Honor ; I will put this case, which was in fact put to me some time ago by a member of the Government. Supposing the Government burned all the telegrams sent, what remedy would you have then? They may burn the telegrams or may pass an Act that no copies of telegrams should be passed out of the office, lea ring to parties the same remedy as they would have in the case of letters. lam very much inclined to think the Government would be justified in passing an Act of that sort—to obliterate, as it were, correspondence, so far as the office was concerned. Mr Macassey: There is no occasion to pass an Act. I know of nothing to prevent the Government destroying the telegrams. His Honor : I merely pointed oiit the distinction between letters and telegrams. With phe Post-office no vestige of a letter remains ; it does not impress itself upon the department, but telegrams are necessarily impressed upon the department, so long as copies of them are kept.

Mr Macassey: Anything in the Telegraphs Act or telegraph regulations which precluded the production of telegrams might be stated in answer to the rule. All the cases laid down was that no person was permitted voluntarily to disclose any secret which occurs in connection with the department in which he serves {ln re Waddell, 8, Jurist, N.S., part 2, 181 ; Be Coventrj Election Petition re Hinckes, 20 L.T., N.S., 421, and the very recent case of Beataon v. Skene, L.J. Ex., 430), and as to the right to inspect telegrams (Wilson v. Thornbury, L.J. Notes to Cases, p. 40). He submitted he had shown sufficient ground for a rule nisi.

His Honor: A rather anomalous point is as to costs. You ask for a rule nisi on separata grounds, and that costs should bo costs in the cause. Then your affidavit shows that the actual defendant has not the slightest objection to this proceeding : he does not object to the telegrams being produced; therefore the rule nisi only raises fairly what is called the talegraph question j and to have the case argued. The Superintendent does not resist, not caring about it, and having, he thinks, nothing that should be concealed. Supposing the rule is made absolute for the production of the telegrams, or some of them, why make the costs costs in the cause, so that if general costs go against the Superintendent, he would have to pay for what he has not resisted ?

Mr Macassey replied that he merely followed the form of similar orders. The matter of costs hj« entirely left in the hands of the Court, though he thought as it was the first time the question had coma solemnly before, the Court his Honor would not be inclined to give costa. His Honor: The rule ntsi does not bind the Court to grant costs. You may take a rule.