SUPREME COURT.

Evening Star, Issue 3618, 26 September 1874, Page 2

SUPREME COURT.

Friday, September 25.

(Before his Honor Mr Justice Chapman.)

Maoassey V. Bell. —Mr Smith moved that the rule nisi herein for attachment against Mr Macassey be made absolute. Mr Haggitt, in showing cause against the rule which called upon Mr Maoassey to show cause why he should not answer the matters complained of and pay the costs of the rule *.“■ * n default of a sufficient answer to the matters complained or, a farther order should not be made as to the Court may seem ht, objected primarily to the affidavits of Messrs I urton and Carter as being insufficient, as they failed to show that Mr Macassey wrote or published the letter and telegrams referred to. A. contempt of Court was a criminal offence, and the offending person must be connected with the alleged couteinpt by legal evidence Carter’s affidavit that Mr Macassey was author of the letter was founded entirely on opinion and belief. Supposing the publication was proved by legal evidence, at the time of its publication there was no trial pending and conaoquently no contempt. If there was any contempt at ail, it was of a contingent kind, such as the Court would nob punish. W hen the letter appeared there was no proceeding before the » ourt in which the pub .0 eould in any way be concerned or the «*».•)-V mind be possessed either one way o* id,.-. 01 her" neither was the publication 01 letter likely to obstruct the course »<f ju bice. ' On the merits of the rule the public*.ion way no contempt, because it did not ce*v,u within the principle of the cases showing what wa. contempt, as the publication could not in any way bo said to influt-nce the public mimi or obstruct he due administration of justice. *

Mr Smith submitted that the rule should ha made abamuto so far as the tirst branch was concerned—that Mr Macassey should fat ordered by the Court to answer the matter/ complained of iu the affidavit upon which the rule was obtained. Mr Macassey appeared in a certain measure to have submitted to the jurisdiction or the C >nrt, inasmuch j , jd P ufc forward what his learned friend had termed an answering affidavit—that of Collmaon, upon which he would have to make soma particular remarks by-and-bye. So far as that wm any answer at pU

to the affidavits upon which the rule had been obtained, Mr Macassey professed to answer the matter complained of, and therefore submitted to the jurisdiction of the Court. He (Vlr Smuh) would have occasion to submit that Collinson’s affidavit, instead of being an answer at all, iu point of fact, to the affidavits upon which the rule was obtained, most unnecessarily introduced what he could not help calling scandalous and scurrilous matter, which in itself amounted to a gross contempt of the Court. His learned friend’s principal objection was that the j' iot and several affidavits of Turton and Carter were insufficient, because they failed to show that Macissey wrote or published the letter and telegrams complained of. That objection was based uj on the ground tb it this was a criminal proceeding, and therefore the Court would observe the seme stringency as regarded proof of the accused haying committed what was charged against him as in a case coming under the strictly criminal jurisdiction of the Court. The cases cited iu respect of that point were no authority for this contention. They were cases in which rules tiisi had been obtained for a criminal information for libel. There purely the criminal law was directly at- " tempted to be set in motion, and the Court held that because of the insufficiency of proof that the accused published the alleged libel, they we>o bound to discharge the rule! The jurisdiction the Court was now asked to exercise, although, no doubt, one of a Quasi criminal character, was clearly distinguishable from the ordinary criminal jurisdiction exercised by Courts of Justice, it was a j urisdiction which the higher Courts of Jusuce in England had exercised from time immemorial for the purpose of preserving their proceedings from abuse or any species of contempt; and it was a jurisdiction which he ventured to say had never been confined by any definition of its limits. It was one which was exercised very much at the discretion ef the Judge who was asked to exercise it. His learned friend had not adduced any case which showed that, where such materials were brought before the Court as were contained in the affidavit upon which this rule was granted, the Court had refused to call upon the person accused to answer such an affidavit. He submitted that the only question for the Court was : la the matter which is alleged in these affidavits sufficiently specific, and of a character which justifies the Court in ordering Macassey answer distinctly the matter so alleged in the affidavit ? He submitted, considering all the circumstances of the case, hat the affidavits were quite sufficient to entitle the Court to call upon Mr Macassey to answer distinctly the matter complained of. This was really a case in which the Court was bound to take judicial nosice—the same judicial notice as was taken by Mr Justice Gr ssoa in the case of Isaacs v. Luscorabe. Without an affidavit, the Judge in that case had no hesitation in taking notice of a communication made by one of the parties in a suit then pending to a newspaper, and in fining that party for contempt of Court. Here they had an affidavit before the Court, and the newspaper containing this letter purporting to be signed by James Macassey. That gentleman was a barrister and solicitor of this Court, and that fact, he submit ed, distinguished this case from the ordinary run of cases. Mr Macassey, as a solicitor, was one of the officers of the Court, and the Court would be far more stringent in considering the conduct of a gentleman occupying that position This jurisdiction was professedly exercised for the purpose of protecting the proceedings of Courts of Justice from being brought into contempt, and from being perverted or brought into contempt in any way. He submitted that the Court would not be bound by the principles which guided Courts of Justice when they were deciding upon the admission or rejection of evidence when a man was put upon bis trial as a criminal. If the Court was to be bound by any such stringent rule as that, the result would obviously be that any gentleman in Mr Macassey’s position might make a tool of some man of straw, who conducted a scurrilous newspaper. It was quite supposable that hereafter, when this place grew much larger, that they would have persons pandering to a depraved appetite on the part of the public for all kinds of garbage, and that men of straw would set up uewspspers whose columns would be open to any person choosing to publish matter calculated to influence the trial of a pending case. Then, because it might be difficu t or impossible to prove the authorship of a letter addressed to such a newspaper, the only remedy left to the party aggrived would be to have the miserable editor or proprietor of the scurrilous print attainted for contempt, while the real culprit—a barrister or solicitor perhaps—would go scot-free. That was the scandal to which such a decision as bis Honor was invited to come to, would be calculated to produce. Mr Macassey sought now to shelter himself under the miserable plea that there was no proof that he wrote and sent the letter complained of to the * Daily Times’ for publication. Mr Haggitt: There is no such plea. I was showing that my friend might have carried his case very much further. Mr Smith submitted that this was a question of very grave principle and of great importance. Was a gentleman in Mr Macassey’s position to be sheltered from the consequences of having published such a letter as this on the ground that no positive proof was adduced in the first instance to the Court that he did so, and that therefore he was not bound to answer by affidavit the question whether or not he did write the letter or cause it to be published ? He submitted there was sufficient ground laid by the affidavit to call upon Mr Macassey to answer categorically, “ Were you, or were yon not, the author of the letter ; and were you not the cause of its publication ?” His learned friend, Mr Haggitt, had interjected the remark that his (Mr Smith’s) case might have been carried much farther. He quite agreed that it might have been carried very much farther if they had made a compact with the editor of the ‘Tim.a,’ as Mr Macassey himself did iu the motion for an attachment against Miller, the Manager of the Bank of New South Wales, for an alteration made in the judgment delivered by his Honor. There it appeared that Mr Macassey, when applying for a rule nisi for attachment for contempt, informed the Court that he had obtained the information supplied by Mr Murison’s affidavit, on the understanding ! that no proceeding was to be taken against I Mr Murison, who was the real delinquent, ' if there was any delinquency at all, which * he (Mr Smith) could never see. j . His Honor : What, not see a delinquency I in altesing a judgment ? ■ Mr Smith : None whatever.

id is Honor : Then, everybody else saw it. It would have been a great private liberty if it had been even a statement* of mine. You had better not defend it, Mr Smith. The thing is past—let it be dropped. Mr Smith would refer to it as a matter of law, and to show how far this Court had gone at the instance of Mr Macassey in earrying out the law of eontempt; and he therefore asked that th® same measure migh r be given to Mr Macassey himself. That case showed to what lengths this Court had been induced to go at the instance of Mi Macassey—who was the only counsel up to the time of the present action who had ever asked the Court to exercise this power—and that under the peculiar circumstances of relieving the real delinquent from the consequences of the supposed contempt. Nothing comd bring the proWodinga of the g QUr |

into greater contempt than the fact that, so long as Mr Macassey could .prevent the persons who were injured hy such a publication as this from discovering direct proof • f the authorship, and of having incited its publication, he was perfectly safe in writing what he liked in order to affect the fate of a pending action. And here he submitted the affidavit put upon the file, and called by his learned friend by tbe extraordinary misnomer of an answering affidavit came in aid of his contention. If Mr Macavsey intended to r -ly upon the absence of legal proof of bis authorship and publication of the letter and telegrams in question, it appeared to him (MrSmitb) that he should have abstained from putting any affidavit upon the file whatever, and should have simply re'ied upon tbe al'sence of all proof connecting him with the allege d contempt But the fact of his having placed an affidavit on the file, which was put forward as an ansvve ing affidavit, but which contained no denial whatever of his authorship and publi' cation of the article in question, must be taken as an implied admission. Here, again, they hsd the edifying spectacle of Mr Macaagey, instead of proper y answering the matters complained of in the affidavits on which the trial was obtained, taking advantage of his position in being brought into Court on this motion to introduce a mass of the vilest scurrility. His learned friend contended that there was no trial pending when this letter was published, a-id that the case did not come within the principle of tho-e oases a 'judged to be contempts. The only caie cited in supporting that contention was Metzler v. Gounod. Hut the present case was clearly distiuguishable from that one, as before the letter appeared in the ‘Times,’ a rule jiisi had been obtained for a new trial, and that made the case sufficiently a pending one, to render it highly improper and a contempt of Court for either of the part ea to write and publish anything calculated to prejudice the fate of a second trial of the action. His learned friend’s third ground was that the publication complained of was not a contempt at all, and for the oddest possible reason namely, because the matter published by Mr Macasmy had been before the public already. That amounted to a gross aggravation of tbe offence. It was like siying to a man, “You have been well beaten already by other people, and therefore a repititiou of the offence on my part will not hurt you.” He (Mr Smith) submitted that the direct tendency of the publication was to fix in the public mind the idea that Mr Wird was the author of the article ; that he was actuated by malice ; and that Mr Ball (the defendant) was perfectly aware of it. Considering that ii a secoud trial took place the jury would be drawn from the public, whose miuds it was thus attempted to influence and prepossess with a certain foregone conclusion, the tendency of the publication was to dispose the jury, drawn from that public, to accept with more readiness than they otherwise would evidence tending to establish Mr Macassey’s intention ; and if he succeeded in doing that, the inevitable consequence would follow that defendant would be cast in much heavier damages than he otherwise might be. The mere fact that other publications had been previously made having the same tendency, instead of palliating Mr Macassey’a offence, was rather an aggravation of it, inasmuch as it amounted to a repetition of what had been done before in hia interest by other persons, notably by his leading counsel at tbe trial. His friend’s argument was an absurd one : that because something was done on August 4, some time after the publication complained of, calculated to instil the same idea in the public mind, but which might or might not have that effect, therefore Mr Macassey did no wrong in causing his letter to be published. It was only necessary to examine euraorily the terms of the letter to arrive at the conclusion that it was most undoubtedly calculated to produce that impression on the minds of the public, coupled with what had yone before as shown by the affidavits of Messrs Turton and Carter, namely, to at at the trial it was part of the case attempted to ba made on the part of Mr Macassey that Mr Ward was the author of the article comulained of ; that in writing it he was actuated by tbe bitterest malice ; that Mr Bell was perfectly aware of that circumstance, yet he allowed the publication of the article m his newspaper, and made himself responsible for the malice, as well as for the consequences attaching to the publication. It was alleged that that was known to the public previous to the appearance of Vlr Macassey’s letter and telegrams, “My object is to show up Judge Ward’s connection with the article complained of, as well as a previous one in the ‘Titnaru Herald * and to that end I desire that all telegrams between himself and others (excluding past er present Ministers) relating to myself should be produced. That there are such telegrams I am well aware, as 1 have copies of some few of them in my possession.” How Mr Macassey became possessed of these copi s was a very curious question. To him (Mr llmith) it appeared very much like an acknowledgment of being the possessor of stolen g ’ods. His Honor ; The telegrams may have been got from parties enti led to give them—the receivers That is all that appears, Mr Smith contended, on the question of costs, that whatever might have beeu hia Honor's intention in an ordinary case, where such an affidavit was put in the records of the Court as had been read in this case, bis Honor would mark the sense the Court should entertain with regard to such an act, by. at all events, if he thought proper to discharge the rule, discharging without costs. For what reason was such an affidavit filed except to place on the records of the Court something highly offensive co Judge Ward ? He could not suppose that tbe same intention could be entertained in regard to his Honor, but undoubtedly that it had been placed on the fi.ea of the Court was in the highest degree a b-each of good taste, and an unnecessary introduction of matter calculated to wound the feelings of all direetly alluded to. There was no reason whatever why it should have been done

Hia Honor : 1 agree with you there. I think the matter is irrelevant Mr Smith: And scandalous. Hia Honor : And what the Court of Chancery has called impertinent. Mr Smith said he felt it was trenching upon the bounds of decency to particularise farther as regarded this affidavit. He would urge upon the Court whatever would have boeu its inclination supposing this rule was discharged—while he submitted that he had i'bown sufficient grounds why it should be made absolute, at all events with regard to *■*’* branch—that the fact of such a scandalous affidavit being placed on the file of the < ourt. and so made public property ought to be visited, if not with costs against r Macassey, be should at all events be mads ‘O pay hss own.

Ki is Honor said he would take time to conaider the matter.