SUPREME COURT.

Evening Star, Issue 3599, 4 September 1874, Page 2

SUPREME COURT.

IN BANCO. ' Thursday, September 3. (Before His Honor Justice Chapman.) DODSON" V. HACANDREW. ’ rgumeut for a rule nisi in respect to the production of telegrams in relation to the piucjiase of the Port Chalmers Railway alleged to have passed between the Superintendent and Messrs Proudfoot and Oliver, some members of the Executive Council, and some membeis of the General Government. Mr Smith, with whom was Mr Stout appeared for the Hon. Julius Vogel, the Telegraph Commissioner, Mr Macassey : In this case I appear to move the rule absolute. Mr Smith : We have a c .py of the main section of the A ct, and which has been sent by telegram by the Attorney-General to my learned friend Mr Stout. It is as follows “ Except as hereinafter provided no officer clerk operator or other person employed in °[ l he working of line or telegraph shall on the trial of any issue civil or criminal or of any matter or question or on any inquiry in any Court of Justice or before any person having by law or by consent of the parties authority to hear receive and examine evidence be competent or compellable to give evidence of the contents of any message despatch or communication transmitted or conveyed or presented to be transmitted or conveyed by any such line m r to produce under any writ or subpoena such line [?] nor co produce under any writ of supboena summons or order the original of any such message despatch or communication [unless ?] by or on behalf of the sender. The provision of the second section of this Act shall not apply, if the person by or to whom any such message despatch or communication as afomaid shall havh be&i M or addressed

notifies to the Electric Telegraph Commiss’oeers or the General Manager of t.he Kleotric Telegraph lines nuder rhe said Act in riling that he desires anv such officer clerk perator or other person aforesaid may give such evidence or make such production as aforesaid.” Mr Smith said it was an Act which entirely prohibited the disclosure of anything by telegraph unless the party immediately concerned would give his consent. One of the grounds upon which he should ■ ppose this rule was that no such telegrams were in existence —that they were purely in the imagination of the other side. His Honor was understood to say he believed be was almost stripped of jurisdiction by an Act passed since the rule was granted. He had not sen the Act. He knew such an Act had been passed, but did not know its contents. Mr Smith said that, assuming the Act. divested his Honor of jurisdiction to order the production of telegrams, yet this action must os disposed of, and must be treated, so far as costs were concerned, by the laws at the time tbs rule was moved. Resubmitted it was the duty of the other side !o pay costs. His learned friend Mr Stout and himself were engaged by the Telegraph Department before the passing of this Act His Honor : If you choose to show cause, I will hear you. Mr Smith then proceeded to show cause, saying it was a rule which called upon the Telegraph Commissioner to show cause why all telegrams that had passed between' the persons mentioned relative to the purchase of the Port Chalmers Railway should not be produced at the trial of the case. Ho then read the affidavits upon which the rule was moved for. Dodson, he (Mr Smith) would point out, only swore, to his information and belief, that some telegrams passed He (Mr Smith) submitted this did not satisfy the law, and that positive proof of the actual existence of the documents required to be produced must be shown. Mr Smith then said his grounds were as follows :—l—The existence of the telegrams had not been shown to the Court; 2—lf produced, their admissibility as evidence was nob shown ; but, on the contrary, their inadmissibility was shown;i 3-That the Court had no power to order the production of the telegrams supposing they existed, they being in the hands of a body or party who was not a party to the action ; 4—That the rule was contrary to the policy of the Telegraph Act, and therefore against public po icy ; and, lastly, the terms of the rule were too general, if parties chose to raise questions unnecessarily, and merely to have them decided by the Court, they should pay the costs. Supposing the telegrams were in existence, he submitted from the affidavits that they would not be admissible even if produced in Court. The terms of the order were altogether too general. He submitted that the rule should be discharged with costs, as an unnecessary proceeding. Mr Stout followed on the same side. Mr Macassey said they were given to understand that the Act passed contained provision that had the effect of defeating the application. The question had been practically decided by the Legislature, and yet the Telegraph Commissioner engaged counsel to argue, not against the ru ! e being made absolute, but to obtain payment of costs. He assumed that the argument which had been addressed to the Court proceeded upon the assumption that if the rule nisi bad been made absolute, the department was entitled to coal a Mr Macassey then replied to the various objections raised by Messrs Smith and Stout. His Honor : If the Telegraph Act is as reported to be, there is merely the question •if costs. Mr Macassey remarked that on the question of costs he bad nothing to say. If the department came to the Court on the question of costs after that Act was passed, he could only say it was a very discreditable proceeding. His Honor: I cannot decide till I have seen the Act and ascertain what powers are left to the Court, and what taken away. r i he Uourt then adjourned.