SUPREME COURT.

New Zealand Times, Volume XXXIII, Issue 5381, 26 June 1878, Page 3

SUPREME COURT.

IN BANKRUPTCY. Tuesday, June 25. (Before his Honor Mr. Justice Xiichmond.) Re Benjamin Gosling.—A discharge herein was granted on the application of Mr. Buckley. Re R. B. Scot. —Mr. Hutchison applied lor an order of discharge.—Granted. IN BANCO. (Before their Houois the Chief Justice and Mr. Justice Richmond.) GILLON V. MACDONALD AND OTHERS. Motion for a rule nisi. Mr. Barton, who appeared for the plaintiff, said : In this case I have to ask your Honors for a rule nisi to set aside a rule dated 4th June, which was as folows : On reading the notice of motion filed herein, and the several affidavits filed by the parties, and on the application of Mr. OUivierof counsel for tho defendants, and on tho plaintiff failing to appear in person or by counsel to move tho motion referred to in the said notice.—The Court doth order that tho plaintiff do pay o the defendants tho costs incurred by them in consequence of the service unon them of notice of the said intended motion as soon as such costs shall have been taxed by tho Registrar of this Court. —By the Court. The circumstances under which counsel failed to appear were not such as should have caused that rule to be made. The case was not iu the list, not properly in the list ; if it was put down in the list, it ought not to have been. Under these circumstances I make this motion, upon the affidavit of Elliott L’Estrange Barton, which says,— I, Eliott L'Estrange Barton, of Petone, near'Wellington, in tho Colony of Now Zealand, law clerk, make oath and say:— 1. lam a clerk in the employment of Georg© Elliott Barton. Esq., solicitor, and of the late firm of Barton and Fitzhorbert, in liquidation. 2. On Wednesday, the loth day of May, 1873, a sitting of this honorable Court was held in banco, and the motion for decree in this cause stood in the list for the day. When the Court was about to adjourn to the for tho purpose of delivering judgment in a rule nisi In tho case of Peters v. Joseph, Mr George Elliott Barton, who appeared os counsel on behalf of the plaintiff in this cause, asked his Honor the Chief Justice whether the Court would be adjourned to the next day, merely for tho purpose of delivering the said judgment, or whether the other cases on the list would bo taken; to which his Honor the Chief Justice replied that it was impossible to say anythingabout the other cases on tho list, as he had received no communications from the West Coast during tho last day or two. and that ho knew therefore nothing as to where Mr. Justice Richmond was, and that he could not hear argument in the other cases in the list in the absence of Mr. Justice Richmond. His Honor the Chief Justice then said that it was of course to be understood that due notice would bo given to all parties of the fact of Mr. Justice Richmond's return. 3. That tho said George Elliott Barton had important business to attend to in the Gisborne District on tho East Coast, and had several times postponed his journey there in consequence of this case and others being in the list. 4. That I am informed and believe the said George Elliott Barton informed Mr. Frank Morton OUivier that he was obliged to leave Wellington for Napier, and requested him to consent to tho motion for decree in this cause standing over until after his return, which would be in about a fortnight or throe weeks ; to which request Mr. Frank Morton OUivier consented, stating that it might stand over so long as suited vlr. Barton’s convenience.

5. On the clay before the said George Elliott Barton was to leave for Napier he remained away from his office at his private house at Petone, engaged in preparing for his journey, and in arranging certain matters of business, and during the afternoon of that day I received notice from the Deputy-Registrar that the Judges intended to sit on the following Saturday to hear t'jo motion for decree in this cause. 6. That in the evening I, at Pet me, informed the said George Elliott Barton of the said notice ; whereupon he wrote and I sent to the said Deputy-Regis-traraletter, of which the following is a copy “ Wellington, May 22nd, 1878. “ H. C. Wilmer, Esq., “ Deputy Registrar. “Sir, —I am informed that you sent over a memorandum to ray office to-day, which the messenger ■)id not leave, stating that the Judges would sib on Saturday to hear the case of Gillon v. Macdonald. “ I told Mr. OUivier that I should be obliged to go to Napier on Thursday (to-morrow), and he stated his willingness to let the argument stand to my convenience. •» j presume their Honors will accede to this postponement. I have already twice put off my business at Napier through my cises being thrown over to suit Mr. Travers’ arrangements, and aiterwards through the Judge’s absence.—l am, sir. “ Your obedient servant, •* George E. Barton." 7. At the time I so delivered the said letter the said George EUiotb Barton was on his way to Napier via Palmeratou. 8. On the twenty-third day of May, 1878, the messenger of the Court brought over to me a letter of which the following is a copy “ Supreme Court Office, “ Wellington, May 23rd, 1878. “ G. E. Barton, Esq. “ Barristsr at Law, Wellington. “ 5ir f —The notice sent round to yourself and others yesterday was to the effect that the Court would sit in banco on Saturday, M>iy 25, at 10.30, to heir Joseph v. Peters, rule, and Gillon v. Macdonald, motion for decree. “Should you desire these matters postponed, will you be kind enough to send with regard to Joseph and Peters the memorandum mentioned in rule 402 with regard to enlargement of rule to fix in ifegistrar’s book to Gillon v. Macdonald, will you kindly send me a praecipe requesting the motion to stand over, &c., to put with the papers.—l have. &c. t “H. C. WXLMKB, " Deputy-Registrar.” 9. Whereupon I wrote and caused to be delivered to Mr. Wilmer, the said Deputy-Registrar, a letter, of which so much as relates to the case of Gillon v. Macdonald is as follows: — “ Before the rule to set aside order of 22nd February came on for argument, you will remember Mr. W. H. Travers and Mr. Barton arranged verbally with you that the argument of that rule should be adjourned till some day before the Court of Appeal should sit, Friday or Tuesday, &c., &c. For the purpose of obtaining that adjournment no memorandum such as is mentioned ia rule 492, nor was any memorandum or praecipe required by you or given by either of tho parties—no document whatever was filed rel iting to it. Neither memorandum or praecipe has ever been before required by the Court or its officers before adjournments. As it has not been the practice hitherto, we must decline to be treated exceptionally.” 10. On the eighth day of June I received from Mr. Ollivier a copy of a rule, dated fourth day of June, striking out this motion from the list, with costs. Elliott L’Estranoe Barton. Sworn at Wellington this twenty-fourth day of June, 1878, before me, Lewis, a solicitor of the Supreme Court of New Zealand. Yours Honors, I respectfully submit that it was not a proper course to have been taken. Mr. Olliver had agreed with me—that is not disputed, and will not be disputed on the return of this rule —that the case might stand over ou account of my going away. The Chief Justice : Mr. OUivier stated the opposite when he was here, Mr, Barton : I have the printed report of what Mr. OUivier said, in the newspapers. Of course I cannot say what he actually did say ; but I state what the reporters say he said. Judge Richmond ; On the 25th May ? Mr. Barton : On the 25th May. The report ia in the New Zealand Tuxes of the 27th. That was Monday, and was a report of Saturday’s proceedings. Mr. OUivier, who appeared for the defendant, said: “I feel bound to state to the Court that Mr. Barton intimated to me some two or three days ago that he would probably be leaving for Napier before this motion could come on ; he apparently being under tho impression that it rested with him to move at any convenient sitting day. I have since heard that Mr. Barton has gone to Napier.” The Chief Justice : There is no statement that Mr. Ollivier consented to a postponement. It would have been highly improper for Mr. OUivier to have asked the Court to give him costs if he had consented that the case should stand over to suit your convenience, Mr. Barton : I can only say he did so, your Honor. The Chief Justice : I say if Mr. Ollivier consented in any way to the case standing over to suit your convenience, it would have been highly improper for him to have asked for costa.

Judge Richmond : Mr. OUivier stated the matter to us in such a way as clearly showed ho did not consider himself bound by any agreement. That is quite plain. I have this note :—“ Mr. Barton, on behalf of the plaintiff, not appearing to move, the Chief Justice asked if, under the circumstances, Mr. Ollivier made any objection to the case standing over. Mr. Ollivier said he would make no objection, but he would prefer to have it struck out.” We ordered it to stand over. Mr. Barton : This is tbe way it stands in the Times’ report. The Chief Justice : Of course wo cannot accept the Times’ report. Mr. Barton : I was not here, and was not represented by anybody. I was away altogether. At all events it is not stated upon the affidavit that such was the arrangement made with Mr. OUivier. It really was that he was quite willing to allow it to stand over to suit my convenience. Of course, that would not bind the Court.

Tho Chief Justice : It does not bind the Court; but supposing there was a consent it would have been highly improper for Mr. Ollivier to ask for coats. The Court, of course, was perfectly free to strike the case out of tho list, notwithstanding any arrangement that might have been made.

Mr. Barton : According to the report in the New Zealand Times Mr. Ollivier said: “I would naturally prefer that the Court should strike it out of the list, as it would relieve me from a pending motion; but I do not ask for anything under the circumstances.” Before that Judge Richmond said: “It will stand thus—there wiU be no order made, and Mr. Barton will give you fresh notice.” Judge Richmond : We thought it would be better. Ultimately it was settled that it should stand over to the 4th June. We thought that was just to the plaintiff. The course Mr. OUivier suggested was to strike it out of tbe list.

Mr. Barton: I wrote to the Deputy. Registrar stating that I could not possibly be here at that time. If the Deputy-Registrar had let your Honors know of that, your Honors

would have seen that I could not possibly be here. Ti fact, I was even beyond the reach of a telegram, in a country without roads. I could not be 1 .reached, and could not even get any information so as to be able to telegraph to ask anything to be done. I understood that the matter was not on the list at all, and therefore that it lay with me to make arrangements with the opposite party, because of course it was a matter of indifference to the Court when it should come on. I understood it to bo out of the list until Mr. Justice Richmond returned, and that it would get into the list again ; but of , course that getting into the list would be by some act of mine, or of Mr. Ollivier’s if he found I was hanging back improperly. Under these circumstances I would respectfully request jour Honors to grant me a rule nisi setting aside this rule, on the ground that the case ought not to have been struck out of the list. In fact it ought not to have been placed on the li*t at all. Judge Richmond : The difficulty is apparently, Mr, Barton, not in stating as a fact that you informed Mr. OUivier that you were going away, but iu stating as a fact that Mr. OUivier consented to anything. That is the difficulty, unfortunately. Mr. Barton : It is nworn, your Honor. There can be no doubt about it. The words used were. “ That it might stand over so long as it suited Mr. Barton’s convenience.” Of course meaning reasonable convenience. The Chief Justice : The affidavit does not say that the deponent speaks of his own knowledge. He says he is informed and believes that such is the case. Mr. Barton : I should have had to make an affidavit, because the conversation was between me and Mr. OUivier. I do not think it proper and desirable that counsel should appear reading bis own affidavit. Of course, if Mr. OUivier denies it, it is another thing. The Chief Justice : Why do you not take the course of making the motion on notice. It would be much more convenient, I should think. Mr. Barton: If Mr. OUivier has no objection to turn it into such a motion I am quite willing. He can make a verbal statement to the Court, if his recollection differs from mine as to what took place. The Chief Justice : This is not moved upon notice at all. Mr. Barton : I apprehend the proper way to apply to set aside such an order* as this is by applying for a rule nisi . The Chief Justice : So far as I am concerned I should say it is nob the proper practice. It seems to me it would ba a much more convenient aud proper practice to move upon notice. There is nothing in the rules either one way or the other. The order was simply one for costs. Mr. Barton : It is a rule ; it is drawn up as a rule. The Chief Justice : It is impossible to say it is a rule, because it is drawn up as au order. Mr. Barton : It says, “ The Court doth order”; and at the bottom it says, “ By the Court.” The Chief Justice : There is no doubt it is an order of the Court. Mr. Barton : It was made in open Ceurfe. If it had been simply a Judge’s order, I would have asked a Judge in chambers to deal with it on summons ; but being a rule of Court, made by the Court, I am compelled to ask the Court, and I cannot do otherwise. I may state that the rule itself would be objectionable upon other grounds ; but I do not like to apply upon any other ground. Nevertheless the rule ought to be amended if nob set aside. It says that the plaintiff do pay to the defendants the costs incurred by them in consequence of the service upon them of notice of the intended motion. I submit that is not proper. All that ought to have been asked was to strike it out of the list, with costs to counsel for appearing—to strike it out simply because there . was no appearance, and not to throw upon the ; opposite side the whole costs of the suit. The Chief Justice: No. Judge Richmond: No. Mr. Barton: It is pretty nearly the costs of the suit. Judge Richmond: That we know nothing about. I was in some doubt as to what the costs would be, but it did nob appear neces lary to consider that. The matter had been spoken to on two days, bub nothing was said about that, and it appeared to me to be a matter for the taxing master. Mr. Barton: The way in which the rule is drawn up gives costs of everything, whereas it ought to have been only for appearing. Supposing I had been beaten, all I ought to be asked to pay would be the costs of Mr. OUivier being brought here twice improperly, and only that—counsel's fee upon two occasions. Judge Richmond: Certainly; nobody would suppose it would be anything else. Mr. Barton: Mr. OUivier evidently thought it meant the whole costs. He was the impression that was the proper reading of his rule. The Chief Justice: You seem to misunderstand Brother Richmond’s meaning, which is, that the costs of tho motion should be paid—■ nob the mere costs of Mr. Ollivier’s appearance, Mr. Barton : I cannot see how that can be the case. The motion could be brought on again, and the other side would get costs twice if they succeeded s second time. What I submit, your Honor, is that the proper costs should have been the costs of counsel appearing outwo days,caused bymyimproper absence, supposing that I were improperly absent. The Chief Justice : The expression I used was, “ that it had been treated as an abandoned motion.” Mr. Barton : My letter was in with the Registrar. Of course it was a Court document. I presumed it would have been laid before your Honors, and it plainly showed that there was no abandonment. The Chief Justice : I hold tho opinion I have expressed formerly—l adhere to it that practitioners have no right to correspond with officers of the Court. Certainly they have no right to correspond with officers of the Court upon matters that have to he decided by the Court itself. Mr. Barton : I must not correspond with the Judges. I must correspond with the proper officer. The Chief Justice; You can correspond with the Court by appearing in Court and making an application. Mr, Barton : The matter came to me at night, and I had to start at six o’clock next morning. X had no other way than to write to the officer of the Court, I am still under the impression that the case was not on the list at all. Why the officer put it on the list I cannot conceive, or why the Court should sit on Saturday. The officer ought to have let the Court know the contents of that letter, aud I am sure the Court would nob have dealt with the matter in the way it did if it had known them. The Chief Justice : The Court could have taken no notice of it. Mr. Barton ; In this very case, or in the case of Peters v. Joseph, when Mr. Travers was away, your Honor stated that you knew Mr Travers was away, and you did not intend to go on with the case. The Chief Justice : It is hardly necessary perhaps to correct you; but what took place was this : I had already stated that a case would not be taken until Judge Richmond’s return. My Brother Richmond not having returned, I, with reference to Mr. Travers' absence, said I did not expect him to be here; tho reason being that Mr. Travers was not expected to be here until Mr. Justice Richmond was here to hear the case. Mr. Barton: On that day your Honor said that when Mr. Justice Richmond returned due notice would be given to the parties as to when the motion would come on. I did not have due notice, because I only bad notice, as you may say, when I was stepping on to the coach. The Chief Justice : What took place was this ; The case was urgently pressed forward by yourself, one reason given being that the Court of Appeal was about to sit, and the parties might desire to go to the Court of Appeal. I stated I thought that was a reason why some extraordinary course—some course out of the ordinary—should be taken for tho purpose of bringing tbe case on. Therefore I said I would consult my Brother Richmond with regard to fixing a day, even during the sitting of the Court of Appeal. The officer of the Court was directed to inform tho parties that the case could bo taken on Saturday, and tho officer seems to have obeyed his instructions. On Saturday Mr. OUivier only appeared, and he desired the case to be disposed of. Wo thought that under the circumstances it would be better if the case stood over, and it was postponed to Tuesday week. Mr. Barton : The Court of Appeal was over at that time, —at the time of which your Honor is speaking. The Chief Justice : You are quite in error. The Court of Appeal sat on Wednesday and Thursday, the 22nd and 23rd May; tbe Queen’s Birthday was on Friday; and the Court sat in the following week. Mr. Barton : Your Honor is quite in error as to appealing. 1 made no statement as to Gillon's intention to appeal. The Chief Justice : One reason you urged why several oases ia which you-werelat^reated.

should be taken without waiting for Brother Richmond’s return was, that if the ''ases were thrown over until after the Court of Appeal had concluded its sittings, they would he thrown back for six months more in the event of an appeal. Mr. Barton : That is no reason for striking a case out of the list in my absence, ' The Chief Justice : These observations are in correction of a misstatement of yours. Mr. Barton : I have made no misstatement whatever of any kind. I submit that it is rather hard than the very moment my back was turned, when I went away on my business, after having got Mr. Ollivier’s consent, the opportunity should be taken to bring this case into the list on Saturday, which is not a usual sitting day of the Court, and then to adjourn it to the following Tuesday. Judge Richmond : To Tuesday week, Mr. Barton. Mr. Barton : No ; if your Honor pleases, it was from May 27th to June 4th. Judge Richmond : It was adjourned from May 25th to June 4th. Mr. Barton : I stated I could not be back. The Chief Justice: It was a matter entirely between you and your client. Mr. Barton : If your Honor will allow to correct a misapprehension of your Honor’s. You stated: “The day was fixed by Mr. Barton’s desire; not a special day, but the earliest clay.” There was no day fixed ; neither the earliest nor any other. I urged as an argument why matter should not be held over that it might be a very inconvenient thing for my client if the Court of Appeal went over without the motion being heard. I forget whether in this case, or in Peters v. Joseph, or in both. The Court of ■ Appeal had, nevetheless, very nearly gone over. I was under the impression that it was over. My business required me to go away, and I made my arrangements to go, I presume it is a matter of indifference to the Court when it comes on.

The Chief Justice: Quite. It is a question of the right of the other side that we are concerned with.

Mr. Barton: What right, or principle of a right, of the other side would be infringed by the motion being allowed to stand over? Thev had nothing depending upon it, if my client was satisfied that I should leave the place. I see no reason why this case should have been struck out. I respectfully submit it was rather hard it should have been struck out under the circumstances, especially when Mr. Ollivier stated on that Saturday that I would be leaving for Napier before the motion would come on, and X would give him notice before the motion would come on. I certainly was under the impression it was not on the list. I do not know by what right the officer of the Court put it on the list in order that it might be struck out. The officer of the Com t was within a few feet of me and Mr. Ollivier when I asked to have the case postponed. ' I think that he probably heard the conversation between us. At all events I stated in my letter to the officer of the Court that I was going away, and I received his answer, headed Supreme Court offices, Wellington. The Chief Justice : The only ground I can see that the rule granted, or the order granted on the 4th June, should be set aside is that of a breach of faith on the part of a practitioner of this Court—a breach of faith not of an ordinary kind, bub one involving a statement made by a practitioner in the face of the Court. It is asked that the Court should call in question a statement made by a practitioner, the affidavit being that of a person who does not speak of his own knowledge, but only.says he is informed, &c. (see par. 4 of affidavit). The deponent does not speak at all of his ®wn knowledge, and that being so, it seems to me it would be highly improper to attach that weight to it which it would be necessary to attach in order to call upon Mr, Ollivier to answer to this Court for having stated what in fact was quite otherwise, in the face of the Court. I think, therefore Mr. Barton : If your Honor will pardon me. It is not reasonable to put upon me that I am charging Mr. Ollivier with misconduct of that kind. I repudiate making any such charge against him. I do not intend to do that. If your Honor wants an affidavit direct from me, I shall make it. I shall make it if your Honor will grant the motion upon it. My statement alone should be sufficient to ■call upon Mr. Ollivier, who is present, to get up and say whfther my words are true or false. Ido not charge Mr. Ollivier. If the Court is willing to give him an advantage, I presume Mr. Ollivier will take it. I do nob 'charge him with impropriety. The Chief Justice : The application is bounded upon the ,4th paragraph of the affidavit. It is founded upon a breach of faith on the part of Mr, Ollivier. It states that he consented to the case standing over until Mr. Barton’s convenience would allow him to appear in it, after the lapse of a fortnight or three weeks. Notwithstanding that a motion is made by Mr. Ollivier, and the case is struck out. It seems to me that this is charging a breach of faith against Mr. Ollivier, and if that is repudiated, then there is nothiug left. If the application is not made on the ground of want of good faith, there is nothing ■for it to rest upon. As I was about to say, it seems to me that the affidavit of a person who can speak to the facts' must be made before such an application as this could be granted, and before Mr. Ollivier or any other person who can depose to the facts can be called upon to answer on behalf of the defendant in the suit. Even if a motion had been made on notice, and it had been, sought to support it upon the affidavit, there would not be sufficient to call upon Mr, Olliver, It would be improper to grant a rule nisi entirely upon an affidavit made by a person who does not speak of his own knowledge. Mr Barton : Will your Honor grant a rule if I undertake to make an affidavit in the same terms ; as to the conversation with Mr, Ollivier—in the same words.

The Chief Justice : I think an application of this kind should be made by a motion upon notice, the usual three clays notice, supported, as I have already sr.id, by the affidavit of a person who can speak to the facta. Mr. Barton : I understand your Honor’s decision to be that the application for a rule nisi is not the proper course.

The Chief Justice ; I think that a rule?H*sa is not the proper practice. It should be an application made upon notice. If it was the proper course, the affidavit is not such as would justify the Court in granting it. Rule refused.