MR. BARTON AND THE JUDGES.

New Zealand Times, Volume XXXIII, Issue 5473, 11 October 1878, Page 7

MR. BARTON AND THE JUDGES.

The following important letter by Air. Justice Richmond to tho Colonial Secretary, in reference to the above matter, was laid on the table of the House of Representatives : by the Hon. Mr. Sheehan, Alinister for Justice, on Alonday night• Judges’Chambers, Wellington, r 1 3rd October, 1878.

• Sir,—-In the recent debate on the Judicial Commission Bill several members of the Houce of llepresentatives appear to have founded their opinions upon a report contained in the “ New Zealand Jurist” for February last of. tho caae3 of Spence v. Pearson and others and Gillon v. Macdonald and others. (3, “ N.Z.. Jurist,” N.S., p. 25.) This has for the first time called my attention to tho report in question, and I feel it to be my duty to point out to tho Government certain misstatements therein, which .materially affect the merits of Hr. G. E. Barton’s case.

1, It is made to appear that iu tho case of Spence v. Pearson the Judges declined to inform Mr. Barton on what ground they were refusing leave to appeal to the Privy Council. This is contrary to fact. The Chief ■ Justice and myself sitting iu the Court of Appeal distinctly decided that we bad no power under the Order iu Council of 16th May, 1871, either to grant or refuse an appeal. Our reason was clearly stated, namely, that the case in question was one removed fov argument from the Supreme Court into the Court of Appeal, under section 19 of the Court of. : Aj>peal Act, 1862, and that the Order iu Council applies only to cases in which the Supreme Court has giveu a decision, and there has been an appeal from that decision.

There was no possibility of mistake upon this point. Tbe whole argument turned upon tho terms of tho 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 cace similarly situated, viz., that of Calder v. Duff. Tho Court had given leave to appeal, but when Mr. Bell, who was opposed to Mr. Ban-on, raised tho objection that the Court of Appeal had no jurisdiction, and cited tho prior decision, of the full Court of Appeal, the Judges revoked their determination im 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 tho Judges declined to say whether their refusal of Mr. Barton’s application was on tho ground of want of jurisdiction. It was fully allowed that;both, cases were proper oases to take to tbe Privy Council, and the only question was, as to the power of tho Court of Appeal.2. Tho offensive language used by Mr.

Barton during the morning sitting of tho 30th January was in reference to a different matter. After the Court had intimated that it had ho power to allow an appeal, Mr. Barton applied, in the same case of Hpsnce v. Pearson, for leave to plead. Here again the same difficulty occurred, arising out of the peculiar provisions of the Qoui't of Appeal Act in reference to cases removed from the Supremo Court under sections 18, 19, and 20 of the Act. ' •It appeared that tho Registrar of the Court of Appeal had already remitted the pleadings to the Supremo Court, along with a note of the decision of the Court of Appeal. Tho 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 ceemed possible that the Supreme Court at Dunedin might also doubt its power to givo 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 applicafcim to the Supreme Court at Dunedin, hut securing his clients co far as we could against the consequences of ;a refusal bf jurisdiction by the . Court at Dunedin. Our purpose was to secure the leave to plead qudcumque via daUt. It was upon this that Air. Barton demanded from the Court au absolute decision whether they had 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 case 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. this 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, and 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 the consent given by Mr. Travers. The plaintiff never did add Saunders as a party to the suit, aud 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 he 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 njt calling the attention of the Court to any matter which could possibly have been, overlooked, but was contradicting aud protesting against the conclusions of the Judges upon one of the main questions before them, and renewing passionate asseitions which ho had already made over and over again. 4. I 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 1 report, which, so far as it is based on the report of the New Zealand Times, is fair enough. -Jiis Honor’s note-book, and ray own were botlv'' 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 pqiut in the discussion observe that where the question A 1 lated to the state of the record, it must he determined by the record, aud not by his 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 relied upon the report in the “Jurist,” to enquire into the origin of that report. I declare it to be quite untrustworthy so far as it ia original. I have reason to believe that it was not furnished to the “Jurist” by cither of the barristers who are announced as the reporters foi this district. The 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 convey au adequate idea of the scene in Court. It also falls, or rather it does not attempt, to show the nature of the questions before the Court. Without come apprehension of these questions it is not possible for any one to understand how thoroughly without ground of complaint Mr. Barton lias been. I respectfully submit that it is desirable to lay this letter on the table of the House of Representatives. It will bo understood that I have confined myself to noting a few important mis-statements in a report which some members have relied upon.—l have*, &c., (Sighed) C. W. Riohmond. To the Hon. the Colonial Secretary, Wellington.