SUPREME COURT.

Tuapeka Times, Volume VII, Issue 367, 24 June 1874, Page 5

SUPREME COURT.

tfr BANCO. Tubsdatf; JtrNE 16. {Before Mr Justice" Chapman.) v. MAOAiroBiBW.-This was an an plication for a, rule nm moved for by Mr Ma cassey, directed to the. defendant, wdto FwTT W ° f Td P»l?lM«. call**- upon S^f to cause why there should not produce.} all telegrams which had passed between the defendant, the General GtoVernmenl the Provincial Government, Mr D. L. Mu£ doch manager of the New Zealand ESi W J t^ nC ?i,- Companjr ' and MeB8 « Proud foot and Oliver, respecting the aale and transfer of the Port Chalmers railway SIS?* 1 * rOoms ' . Tho exact term » of tb* apft n to show cause why the telegiaS should not be produced at the trial of the cause and why befog the takl the plaintiff or hu solicitor (M* J. X Harris) shoufi not be at bberty to inspect and take copies of them upon such terms as are defined by the Telegraph^ t* gulabons or as the Court may think pw?er to SSH t U ? o™g0 ™g f<» the rule Mr Mac*ssey E5 he i ouari > on examination of the CourT n2 ™ «»*, six different occasions orders had been made ex parte in Chambers callmg on and requiring the officer in charge of &c Telegraph Department in Dunedin to produce telegrams at the trial of a cause and to F ve th ® P* rty applying the option of inspectlae and taking copies of them before the trial. Those cases were Burke v. Anderson and S"^ w*w? - V ' Prf t chard . Gutter v. PritnSf* S eD^ eUn T - BelL The dtffewnees between those cases and the present application might be summarised thus— the former were ex parte, «nd called ?P° n - a _* abordui *te officer of the Telegraph Department to produce the telegSS. Any mischiefs arising from the orderbeing made expartt ; and directed to a subordinate officer of the Telegraph Department, would be met by tbe way in which the present application was, made. With regard to the appKcatiS itself, there were three questions whioh would present themselves- to- the mind of the Court, «i? sp -s? fc °f which it was necessary to satisfy the' Court. He would be willing to assume in the first place that it was incumbent U £° tt t. Z e P laintiff to show that the evidence wniph; he by his application sought to obtain was material and necessary to support and prove hwoase-^n other w/ords. should be covered, by, those rules which regulated the granting of interrogatories or the, production of cadence which lay more.^immeffiately under - the control of the opposite -party. 'The second point was that telegrams had no privilege wbichany other correspondence hadnqt : and the third was that- the circumstance "that the Telegraph Department waslinder the controlofthe Government made no difference, unl«&, it involved a disclosure of State seoret*. At the outset, it might be fan-ly assumed that if the application should not be made em park, the defendant at all- events should hare notice of it; therefore ja© question would arise in the mind of tbe Court, or-oould Wurged by^courisel in showing cause that the defendant should not be made a party to. the present application. Leaving that matter he had a hw words to say, supposing he succeeded in showing the three points he had undertaken to establish were established to thesatisfaction of the Court, as to the Commissioner of Telegraphs being the. proper officer. His Honor : It is necessary to make him » party to the rule because of lie public element, I suppose. .. M"" Maoassey * Not so much that as jbecause, lX tPa *-«»^ M"»u Ini mulnrcnrorihir''LL.i|iilili|^ - an officer- to produce these telegrams, '-the head of, bjs, department could give instructions, to. l the contrary, and thus the Court would beremediless, and its processes, set at defiancev The, authorities were clear ; on that point, tha most recent case being Crowther v. Auplebr. 29, L.T,,N.5.,580: As' merely touching on tha question that the Commissioner being* tha head of the department, and having toe control of the subordinate officers, was the.only properperson who could bebre«ght before the Court, he cited Thornhill v. ThornhiU, 2, Jacobs and Walker, 347, and Austin v. Evans, Manning and Grainger, 430. Mr Lubccki, the officer in charge here, might say he must obey Bis superior, ana decline to produce ; therefore hft (Mr Maoassey) had to come back to the position that the Telegraph Commissioner was the proper person to show cause.. He; felt himself under the obligation of establishing affirmatively that this evidence which was dejdred te> be secured was calculated to help the fllaintiff in proving his Case/ To a certain extent it might no doubt oe said in showing- cause that the application was a roving one ; that it wa» going [ intotheenemy'aoAtnjxtonfldoutwhat had passed 'between the. General and Provincial Govemmentg,' the, N^ew Zealand Loan Agen«y v >'and Messrs, Proudfoot and Oliver;' 'butifi'fc helped the plaintiff, and enabled him to establish his claim, be was entitled to have that evidence pro^ i duoed. A strong caae-jn point was HodsoU v. Taylor, 29 L. J.," N. S., 534. What would the production of the telegrams establish t [Tha declaration set forth that plaintiff had been lessee, under Proudfoot and Oiivej, of the Port Chalmers railway refreshment rooms at a rental of L 251, payable quarterly.;, that after the tenancy commenced the Provincial Government purchased the railway, and accepted plaintiff as a tenant, and that shortly afterwards the rooms were let to G. ProudfooVand plaintiff forcibly turnsd out of possession, -despite a eeodition that any incoming tenant should take tha stocky furniture, and • fittings,, at valuation.] Plaintiff, and hjs solicitor^ by theif affidavits, declared thatthe production of certain telegrams was necessary to establish and support plaintiffs claim, for damages, arising out of the breach of that oovenant. Application had been ' niadp to both. Mr Lubecki and the General Manager of Telegraphs for their production, and the former replied that to do so was contrary to the regulations, and Mr Lemon simply that the application could not be granted. OnJune 6 defendant's-solioitor wrote that "if the Telegraph Department was willing to produce . the telegrams, (if any} for inspection, -the de* • fendant will raise- no objection to- your- doing ■ so." Hi« Honor : That, reduces it almost to » question of the regulations. Mr Maoassey : Thequestion is one of pnn- . ciple, and it is for the Court to determine whether a litigant has the right of compelling the production of telegrams, whioh He believes - are necessary to support' his .action. His Honor : It seem* thatthe.d#fendejithimself makes no objection. " ' '' ' ~ ' Mr Macassey had no. further need to ■ trouble his Honor in showing the materialahip. of thetelegrams. As to the second point,, that tele- ? grams, were not more privileged than any othercorrespondence *. |, His Honor: You will admit that they, are *• subject ta the same privilege as letters have *, been for the purpose of .reference. •'•'• - - '-• ' "' Mr Macassey : Entirely so, but to nofartkeE ' privilege. . . v ' ' His Honor ! That is the rule-as to letters, ' and in the absence of any express decision upon telegrams thegeneralanalogy—lwiU notsayrulo —is that the privilege applying to correspondence sent through the post should apply to telegrams. There are some very patent distinctions : and one of the most conspicuqus.'u this : When I drop a letter Into the post it ceases to be mine, and when the personate widm it is addresed gets it there is an end of it, so far as the Post Office is concerned. ! But'the Telegraph Department keeps copies ef all telejrramst 'You cannot make application to the PostmasterGeneral, who has no. knowledge of- them**aad never sees their contents, because Hx&. answer to you may. be to apply to tEe parties exchanging them, and to bring them into CottrCwilu their telegrams in their haads. The mere-acci-dent that copies of telegrams are necessarily kept in the 'office dees not really; alter the case as between the Telegraph andPbeiroffiee D«partmeats. It mast be taken that the Telegrajih .Department has no knowledge, ha» ne record- of them. Mr 'Macassey observed that the distinction drawn- by his Honor waa an un^gniftbl'fl' aami but it had existed for years, «•-»■»

BfeltMMt i 1 wilTput this ttUft, which was in tortput to me^pme time ago, by a member of tb^SSrnSent 'Srippofe^^/ Government **ried' fell th« telegrams sent, what remedy. yon ' Um-lpaxh 1 -They, rtay. burn ' the 3tls|xata»rtmky pass's* ,*£el r that no riopiwpf telegnms^slmKl' b»-s*ftMd"ftut. of office, , hating to.«i|ti«,^he^Bame.wn(edy _as ti&ey would have in the ewe of letters. I "am very' touch imhW to think th* Government be JustmedijyjaiMsing an Aot , of that sort— to obliterate, m it were, corresponaence,' so far as the office w«s 6M»<»er»ed. i. < -^ Mr Macawey;. There, is no. occasion to pass an Act f know of, nb'tnitig to prevent the Government destroying the telegrams. . • HuHenor: I mwejy- pointed put. the distinction between letters and 'telegrams. With the Post-office na yejstjge ,of a - letter remains ; it does not impress itself upon the department, bnt telegrams are neoewariiy impressed upon the departptm&i 6ft lejig. *e .copies of them are kept , ' ) \ Mr Macassey : Anything in the Telegraphs Act or, .telegraph, regulations- which precluded the production of telegrams might be stated in answer to the rule. All. the cases laid (down Vas that no ReVion was permitted voluntarily , to disclose any. secret which occurs in connection with' the department in which he.servei Hit re WaddelL 8, Jurist, N.S., part 2, 181 ; Jte .Coventry Election ' Petition- re- Hinckes, .20L.T., N.S:, 421, and -the ..very recent case .of Beataon v. Skene, L.J. Ex., 430). and as .to the right to inspect telegrams. (Wilson v. Tbornbury, L. J.; Note*.: f»> Cases, p. 40). He. submitted he had shown sufficient ground for a - ' nle stiw ■ ttj« Honor ; A rather anomalous point is as to costs. ' Yon ask for a rule nwi on separate grounds, and that cost* should be oosts in the oaute. tThen your affidavit shows that the actual defendant has- not theslightest objection to this proceeding t- he does not object to the telegrsma being produced j, therefore 'the rule 1 »vi only raisf! ffririywhat is called the tele- , graph question j , and to have tbe, case argued. . The 4np«rinteiident does not resist, not caringabout it, and having, he thinks, nothing that should be concealed Supposing the rule is made absolute, for the production of the telegrams, or some of them* why make the costs oosta m the cause, so that if general coats go' against the Superintendent, he would have to fay for what he has sot resisted ? Mr M.a«ai)Bey replied that he merely followed the form of similar orders. The matter of costs he entirely left in. the. bands <of the Court,, thoughshe.thought as. it .was tbe first time the question "had come solemnly before the Court hit Honor would,not.be, inclined to give costs; ' ; Hi> H^nor.; Tb.erule nw^ does not bind the $ourt to grant costs. "Yott-may take a rule. ,