THE SUPREME COURT AND MR BARTON.

Globe, Volume IX, Issue 1224, 5 February 1878, Page 3

THE SUPREME COURT AND MR BARTON.

[From the " New Zealand Times," Jan. 31.] In the Supreme Court yesterday, during an argument in the case of Spence v Pearson, in which an appeal was sought, Mr Barton, counsel for the defendant, complained that the Court would not decide whether it had jurisdiction in the cose, and added that he could not but see the spirit and intent of the Court. The Chief Justice—Will you sit down, Mr Barton? You are entirely forgetting yourself. I ask you to explain what you mean by the language you have just used ? You say you cannot help seeing the state of feeling which is actuating the Court—l ask you to explain what you mean by the language ? Do you mean to impute to myself and brother Judge that we are not actuated by those principles which are required for the impartial administration of justice ? I ask you if that is the meaning with which you used the words, because I so understand them ? Mr Barton— What I have said I have said, your Honor. If your Honor chose to put such a meaning as that on my words it is no fault of mine. Mr Justice Richmond—ls that your meaning, Mr Barton ? Mr Barton said he had asked the Court a J>M» quegtfop, aa4 they ha 4 refused, to

answer it. He wanted to advise his principals in Dunedin, Messrs Seivwright and Stout, on the point. He asked whether the Coin* had jurisdiction. Their Honors, he complair.ed, did not treat him with that respect which a leading counsel might expect. Ho sincerely hoped the Court had no intention to deal differently with him than with others. He referred to a case in which an alleged injustice had been done to himself and a client. If his mouth were to be shut, and he was not to be allowed to conduct his cases, tho sooner he gave it up the better. It was not a matter in which their Honors should treat him in a hostile wny, but ho asked them to treat it judicially, and put themselves, as far as might be possible, in his position, and consider how difficult it was for him to carry on his pleadings under such circumstances. So long as he behaved respoctfully to tho Court, ho protested against such treatment as he received from their Honors, and he asked them to discontinue the treatment towards him. He would prefer that their Honors would decline jurisdiction than that they should leave him in such an unfortunate position that the Judge in the Court below would not know whether this Court had or had not granted a final certificate. He was very sorry indeed that every day he was put in a most unfortunate position with the Court, and tho sooner it came to a head tho better. The question he had asked was one which as counsel he submitted ho had a perfect right to ask, and if ho had not asked it, ho considered that he would have been guilty of a gross dereliction of duty. He knew when he sat down that he had done his duty and nothing more. The Chief Justice —Mr Barton, you have addressed some lengthy observations to the Court, but we are unable to see that you have yet explained the expression that you used, except by imputing to the Court and Judges of the Court conduct which, if true, impugns tht impartial administration of justice therein. I desire again to ask you whether it was your intention, when using the words, that you could not fail to see the spirit which was actuating the Court—to impute to the Judges a partial administration of justice in this Court, ? I desire again to ask you whether that was your meaning ? Mr Barton —I have explained fully, your Honor, and I hope the reporters have taken a note of what I said. To that explanation I entirely adhere, and I am going to take the consequences of it. The Chief Justice—The Court will sit in a quarter of an hour. Their Honors then retired, and returned in a quarter of an hour, when The Chief Justice, addressing Mr Barton, said —Mr Barton, the Court has considered the matter which was before it, and also the question whether you have not been guilty of contempt of Court. It is with considerable pain that I have to announce the judgment the Court has arrived at, which is that you have committed a grievous contempt of Court, such as cannot be passed over. Being responsible for the propar administration of justice, it feels it impossible to pass over such a gross contempt, and if it were passed over it would be a grave reflection upon the performance of their duties. I have to say that the language which you used, viz., that you could not but see the spirit which actuated the Court in its proceedings with regard to yourself, is such as cannot be overlooked. The Court has informed you of the meaning which it feels bound to put on those words, and you have made a statement of considerable length, but you do not either retract tho words or state that that was not the meaning you intended the Court to attach to them.

Mr Barton —I cannot say what meaning the Court may attach to them.

The Chief Justice—The Court informed you that, in its opinion, the words could only mean a reflection on the impartial administration of justice by the Court, and you did not state that that was not the meaning which you intended the words should bear, but on the contrary asserted that you found yourself treated by the Court in a different manner to that in which it treated other practitioners. This being the case (as I have already said) the Court feels bound to vindicate and protect the course of proceedings, feeling that if such reflections and imputations are made—more especially by a practitioner —the proceedings of the Court cannot be properly carried on. I have, therefore, to adjudge you guilty of contempt of Court, and inflict a fine of £SO.

Mr Barton -What will be the consequence if I do not pay ? The Chief Justice —Mr Barton, I have nothing to do with that. Mr Barton —I must respectfully ask your Honor to state what will be the result of nonpayment ? I respectfully decline to pay, your Honor.

The Chief Justice—Mr Barton, we will proceed with the business set down. Upon the Court resuming after a brief adjournment for lunch, The Chief Justice intimated that he had been informed by the Registrar that the Court of Appeal was sitting under erroneous circumstance. When it arose after the sitting of Monday it was not adjourned, as it necessarily should have been ; therefore that day's (Wednesday's) sitting of the Court was informal, and the Court of Appeal could only sit by an Order in Council or proclamation from the Governor.

Mr Barton —If your Honor pleases, is that to affect what lias taken place between yourself and me ? I don't want to take advantage of such a point. The Chief Justice—Mr Barton—The Court is not addressing you. Mr Barton—lf there was no Court] it cannot fine me £SO.

The Chief Justice—Certainly not. Mr Barton—May I ask your Honor to get the Court to sit properly, so that the case of Spence v Pearson may be heard. The Chief Justice—There is nothing before the Court. Mr Barton —Your JEonor misunderstands me.

The Chief Justice—The Court of Appeal is not sitting. Mr Burton —I am aware of that from what your Honor has already said, but I usk yon to make proper representation to his Excellency the Governor so that the Court of Appeal may be properly constituted and sit. The Chief Justice—You can do that outside the Court.

Mr Barton —I submit, your Honor, that the proper place is here. The Chief Justice—The Court of Appeal is not sitting now. The Supreme Court is now going to sit. Any representations that require to be made to his Excellency the Governor will be made by the Judge. Mr Barton—Of course I have no right to address his Excellency, but I have a right, if through a misfortune the Court was not properly constituted, —I have a right to ask that it be properly constituted.

The case of Gillon v Macdonald was thtn called on, and Mr Barton, who, it was under- ! stood, had thrown up his brief at the If sb hearing of his case, rose to continue his argument. He declined to argue a point raised by Mr Ollivier, counsel for the other side, and animadverted in stroDg terms upon the point raised, declaring it to be rascality. Mr Justice Richmond pronounced it to be very improper to throw out charges of rascality against a brother practitioner unless they were proved. He was always willing to inflict condign punishment upon rascals. Mr Barton said lie would show an English authority to prove ho was justified in making such an observation. A more rascally or scoundrelly thing could not be done than for a lawyer designedly to keep a point dark in one court, leaving it to be understood that he was not goiDg to make use of it, and then bring it out in another court. The Chief Justice—Are you imputing rascally conduct to Messrs Travers and Ollivier, sir ? Mr Barton—l am not alluding to Messrs Travers and Ollivier at all; they are perfect gentlemen, both of them, and your Honor will please not address me as sir. Mr Justice Richmond—You are violating all the conditions of the Bar and order of the Court. It does not show a gentlemanly feeling to be referring in this way, especially to an absent man. Mr Barton—Jt is Mr Travers's misfortune if he is not in Court. Ho is in Wellington, and I will not say anything about him after ye leaves jte scores.

Mr Justice Richmond—The Court has already intimated that it is prepared to hear your argument. Mr Barton —I respectfully urge to you that it is not reasonable for you to ask me to arguo this point without a decision. I decline to do so under protest. Mr Justice Richmond—The only way to protest is to appeal.

Mr Barton —Yes, appeal! which will last for six months, and the other side have already commenced an action against Gillon. I protest against the Court dealing with me in that way. You ought to deal with me as you deal with any other counsel.

Mr Justice Richmond—You have more license allowed you than any other counsel, and this cannot be allowed much longer. Mr Barton—l agree that matters are coming to that pass that they must terminate soon. The business of the Court cannot go on if, when the public trusts me with important matters, I am treated in this way. No one regrets it more than I do, and no one is more sincerely desirous of getting along quitely with the Court. lam perfectly aware it is utterly impossible that the public business can proceed in the way it is now doing. I must ask your Honor to rule whether my friend is to bo allowed to argue out that point; if so, I will not arguo the case. The Chief Justice proceeded to give judgment, and stated that he was of opinion that the application must bo refused, he might say, upon almost all the grounds that had been urged by Mr Ollivier. He commented upon the points raised, and made special reference to what ho considered reprehensible conduct on the part of the plaintiff in the action he had taken whilst the case was subjudice. Mr Barton —Would your Honor tell me how he is to exercise his right ? The Chief Justice—You must not interfere with tho business of the Court. The application will be refused with costs.

Mr Justice Richmond—l entirely agree with the judgment on all grounds. The conduct of plaintiff in endeavouring to take the matter out of the hands of tho Court was very reprehensible. Mr Barton —Will your Honor please to state how it was in the hands of the Court ? Mr Justice Richmond—Whilst it was still sub j it dice. The Chief Justice—lt is absolutely impossible to go on with these interruptions. I will not sit here with your interrupting the proceedings, Mr Barton. Mr Barton —If your Honors make decisions that are unintelligible to tho parties, I must interfere. I ask that it be intelligible to the parties and public, but especially to the parties. The Chief Justice—You must keep your seat and hold your tongue. Mr Barton—l will asseit my right and go out of Court.

The Chief Justice —I tell you now to keep your seat and hold your tongue : that is the order of the Court.. Mr Justice Richmond continued his summing up, remarking that plaintiff should not have thrust himself on the " Argus " premises in tho manner in which he had done.

Mr Barton—How can your Honor say that he had not a right to thrust himself there. There is his authority perfectly clear. I will walk out.

The Chief Justice—Will you be good enough to remain. Well, now, Mr Barton, I have many times requested you to keep your scat and not to interrupt the proceedings of the Court, —notwithstanding such reiterated orders and rules you have continued interrupting the proceeding*, and I therefore do declare that unless you see fit to apologise to this Court and express regret for such transgressions, you will be adjudged guilty of contempt of this Court.

Mr Barton replied that he had not a shadow of a doubt that the statement made that Gallon had no right to go on to the premises among his partners was utterly contrary to law. It was bo monstrous that he could not help speaking on the subject as he did.

The Chief Justice—You are again interrupting the Court while it is considering its judgment. I was very desirous indeed that you should have regretted your conduct. Mr Barton —This matter must go to the end, it is perfectly clear. I know what the Court means, and I hope it knows what I mean.

The Chief Justice—The Court judges you guilty of contempt of Court, and commits you to the public prison in Wellington for one month.

Mr Barton asked that the other cases in which he was engaged might be adjourned. The cases were adjourned until Monday next.

After Mr Barton had left the Court, Mr GHllon, the plaintiff, said he wished their Honors to understand that in going down to the " Argus " office he had acted under legal advice.

Mr Justico Richmond said in that, of course, Mr Barton was responsible, and blame often fell upon those who were morally blameless. He expressed an opinion, as did also the Chief Justice, that the case was not one involving such large interests that it should be tried in that Court, and suggested a compromise.

Subsequently Mr Barton, accompanied by a friend and the Inspector of Police, walked to the gaol.