MR. BARTON AND THE JUDGES.

New Zealand Times, Volume XXXIII, Issue 5470, 8 October 1878, Page 2

MR. BARTON AND THE JUDGES.

The following important letter by Mr. Justice .Richmond to the Colonial Secretary, in reference to the above matter, was laid on the table of the House of Representatives by the Hon. Mr. Sheehan, Minister for Justice, last night:— Judges* Chambers, Wellington, 3rd October, 1873. Sir, —In the recent debate on the Judicial Commission Bill several members of the House of Representatives appear to have founded their opinions upon a report contained in the “New Zealand Jurist” for February last of the cases of Spence v. Pearson and others and Gillou v. Macdonald and others. (3, “ N.Z. Jurist,” N.S., p. 25.) This has for the first time called my attention to the report in question, and I feel it to be my duty to point out tothe Government certain misstatements therein, which materially affect the merits of Mr. G. E. Barton’s case. 1. It is made to appear that iu the case of Spence v. Pearson the Judges declined to inform Mr. Barton pn what ground they were refusing leave to appeal to the Privy Council. This is contrary to fact. The Chief Justice and myself sitting in the Court of Appeal distinctly decided that we had no power under the Order in Council of IGth May, 1871, either to grant or refuse an appeal. Our reason was clearly stated, namely, that the case in question was one removed for argument from the Supreme Hourfc into the Court of Appeal, under section 19 of the Court of Appeal Act, 1862, and thatjthe Order in Council applies only to cases in which the Supremo Court has given a decision, aud there has been an appeal from that decision. There was no possibility of mistake upon this point. The whole argument turned upon the terms of the Order in Council, and the decision was expressly based upon the authority of a prior decision of the Court of Appeal, which was cited (Brogden v. Miller.) Just before the application in Spence v, Pearson, Mr. . Gordon Allan had applied for leave to appeal in a case similarly situated, viz., that of Calder v. Duff. The Court had given leave to appeal, but when Mr. Bell, who was opposed to Mr. Barton, raised the objection that the Court of Appeal bad no jurisdiction, and cited the prior decision of the full Court of Appeal, the Judges revoked their determination in Calder v. Duff, and told Mr. Gordon Allan that his leave to appeal must depend upon the decision in Spence v. Pearson. It. is therefore absolutely untrue that the Judges declined to t»ay whether their refusal of Mr. Barton s application was on the ground of want of jurisdiction. It was fully allowed that both cases were proper cases to take to the Privy Council, and the only question was as to the power of the Court of Appeal. 2. The offensive language used by Mr. Barton during the morning bitting of the 30th January was in reference to a different matter. After the Court had intimated that it had no power to allow an appeal, Mr. Barton applied, in the same ca>e of Spence v. Pearson, (or leave to plead. Here again the same difficulty occurred, arising out of the peculiar provisions of the Court of Appeal Act in reference to cases removed from the Supreme Court under sections 18,19, aud 20 of the Act. It appeared that the Registrar of the C< >urt of Appeal had already remitted the pleadings to the Supreme Court, along with a note of the decision of the Court of Appeal. The Chief Justice intimated a doubt whether the matter was not now out of'the hands of the Court of Appeal, and whether the application ought not therefore to be made to the Supreme Court, at Dunedin. I remarked that we must, if possible, avoid the inconvenience to the applicants of being bandied about between the two Courts ; because *it seemed possible that the Supreme Court at Dunedin might also doubt its power to give leave to plead after a decisi n of the Court of Appeal. Therefore the Judges informed Mr. Barton that he might take an order -for.leave to plead on the usual terms for what it was worth, leaving him to make a similar application to the Supreme Court at Dunedin, but securing his clients so far as we could against the consequences of a refusal of jurisdiction by the Court at Dunedin. Our purpose was to secure the leave to plead qudcumqnc vid datd. It was upon this that Mr. Barton demanded from the Court an absolute decision whether they bad or had not power to grant the leave to plead. Of this demand we took no further notice than to say that he might take or leave the order we had given him as he pleased. The particular ca-e was fully provided for by the order we had made. On the general question it would have been inexpedient to give' a decision, -as the Chief Justice and myself were merely sitting to dispose of the residuary formal business of the Court of Appeal. 3. Next, as to the report of Gillon v. Macdonald. This report is a onesided one. It state* that Mr, Travers had admitted, that Saunders had ceased to be a partner in the Argus Company. I his indeed was Mr. Barton’s contention, but was, and has always been, absolutely denied on the part of .the defendants. On the part of the defendants it was .stated that Mr. Travers had said, “He. made no point of the non-joinder of Saunders as a defendant, aud would consent-to his being made a party to the suit.” This of course implies that Saunders really was a partner. The notes taken by the Chief Justice on the first trial'were referred to, and confirmed that statement, as to the nature of tho consent given by Mr. Travers. The plaintiff never did add Saunders as a party to the 'suit, and it became in the subsequent ■ proceedings a serious question whether the Court could issue orders purporting to affect the co-partnership and its property without insisting that all the partners should be before the Court. Some of Mr. Barton’s numerous interruptions of the Court whilst delivering judgment- related to this question respecting Saunders, On these occasions he was not calling the attention of the Court to any matter which could possibly have been overlooked, but was contradicting and protesting against the conclusions of the Judges upon one of the main questions before them, and renewing passionate assertions which he had already made over and over again. ■4.1 need scarcely add that it is quite a misapprehension to suppose that the Chief Justice refused to refer to his notes of the first trial I do not know that there is any ground for'this mistake in the “Jurist” report, which, so far as it is based on the report of the New Zealand Times, is fair enough. His Honor’s note-book and my own were bath produced, and the entry in the former of the consent given by Mr,'Travers was one of the chief subjects of discussion. ■ The Chief Justice did at-one point in the discussion observe that where th* question related to the state of the record, it must be determined by tho record, and not by bis notebook. Some reporter must have misunderstood the observation. Such mistakes are continually occurring, 5. It does not appear to have occurred to any one who rdied upon the report iu the “Jurist,” to enquire into tho origin of that report. I declare it to be quite untrustworthy so far as it is original. I have reason to believe that it was not furnished to tho “ Jurht” by either of the barristers who are announced as the re* porters for this district. Tho report in the New ZEALAND TIMES of 31st January is a fair report so far as it goes ; but it fails, as almost any report must do,' to convoy an adequate idea of the scene in Court. It also fails or rather it does not attempt, to show the nature of the questions before the Court, Without some apprehension of theso questions it is not possible for any one to understand how thoroughly without ground of complaint Mr. Barton has been. , I respectfully submit that-It is desirable to lay this letter on the table of tho House of Representatives. It will be understood that I have confined myself to noting a few. important mis-statements iu a report which some members have relied upon.—-I have, &C., (Signed) C. W. Richmond. To the Hon. the Colonial Secretary, Wellington.