Chapter XVIII: Conclusion (6)

In a large port like Melbourne where important shipping cases are often before the law courts, it is certainly a serious drawback that there are so few lawyers who are possessed of nautical experience. Of course many of our Victorian legal luminaries have been out on yachting excursions, and perhaps now and then got wet both _outside_ and _inside_, but this kind of experience, like the “little learning,” is really worse, and therefore more “dangerous” than if they knew nothing at all! Whenever I hear, or read of, one of these would be “sea-lawyers” floundering through a shipping case, I am always reminded of the story told of the seaman who was a witness in an assault case. When Jack entered the witness-box, he was asked by one or the lawyers whether he (Jack) appeared for the plaintiff or the defendant. Jack replied that he did not understand the terms, and therefore did not know whose side he was on. To this the lawyer sarcastically remarked: “A pretty kind of a witness you are not to know whether you are for the plaintiff or defendant.” As the case proceeded Jack detailed that the scrimmage took place just “abaft the binnacle.” “Where is that?” asked the lawyer, sharply. “Don’t you know where it is?” queried Jack. “I do not,” replied the limb of the law. With a broad grin on his face Jack interjected, “A pretty kind of a lawyer you are not to know where abaft the binnacle is!”

The new trial, which had been ordered by the Full Court, commenced on Wednesday, Oct. 23, 1895, before Mr. Justice Hodges and a fresh jury of six. Mr. W. Williams and Mr. Meagher, instructed by Messrs. Ebsworth and Wilson[3], appeared for the plaintiff (Mrs. Kilpatrick), and Mr. Coldham with Mr. Schutt, instructed by Messrs. Malleson, England, and Stewart, appeared for the defendant company. On both sides fewer witnesses were examined than on the first trial, and the evidence, so far as it went, was almost a repetition of that given in the previous case with the exception that the position of the cargo was more fully dealt with. At the close of the evidence on the fifth day of the trial, both Mr. Coldham and Mr. Williams delivered very able addresses to the jury. His Honour, Mr. Justice Hodges, then summed up. He dealt with all the points of the case, and his charge to the jury, in brief, amounted to this: “If they determined that the _Alert_ was sea-worthy there would be an end to the matter, for in that event they would at once give a verdict for the defendants. On the other hand, it was for the jury to say whether reasonable precautions were taken to ensure the sea-worthiness of the ship, and if they found that such was not done, they would then consider the measure of damages to be awarded to the plaintiff because of such neglect. With regard to this neglect the defendants had a strong answer seeing that they had Lloyd’s and the Marine Board’s certificates of sea-worthiness, yet it might be that Lloyd’s and the others were all wrong. If the jury found a verdict for the plaintiff, then in assessing damages, they (the jury) were to remember that the plaintiff would only be entitled to receive pecuniary compensation for pecuniary loss; but the mother or the child could not be compensated for the grief or pain they suffered. The jury were to throw all sympathy out of the question, and deal with the matter as one requiring simply cold justice to be dispensed.” After retiring for about an hour the jury returned into court with a verdict for the plaintiff. Damages £791, to be apportioned thus, £666 to Mrs. Kilpatrick and £125 to the child.

I quote the following from the _Age_ newspaper of November 26, 1895:—

“The S.S. _Ethiope_, which was placed in the Alfred Graving Dock,
Williamstown, for the purpose of ascertaining the leakage in her
hull, which occurred during her passage down the Bay on leaving for
London with a full cargo of wool, was floated out yesterday and
berthed at the railway pier, Williamstown, where she will receive
on board the portion of her cargo that was landed prior to her
entering the dock. Whilst in the dock a thorough examination was
made of the vessel, and the cause of the leakage was discovered
under the engine room. The bolts in several of the seams had
started, and allowed sufficient water to inflow to cause the
vessel’s return to port for examination and repairs. The repairs
were speedily carried out, and on the reloading being completed
Captain Miles feels confident that the cargo by the ship will
arrive in London in time to catch the January wool sales. During
the stay of the _Ethiope_ in dock her bottom was cleaned and coated
with Rahjten’s anti-fouling composition. The _Ethiope_ will leave
again for London during the week.”

And hereby hangs a tale. Here it is: In the matter of the survey of the S.S. _Ethiope_ “I, Robert Barclay, chief engineer of the S.S. _Ethiope_, solemnly and sincerely declare that we sailed from Melbourne on Sunday, November 17, 1895, bound to London with a cargo of wool and preserved meats. During the passage down Hobson’s Bay my attention was drawn to the fact that there was a leak somewhere in the ship, and by measurement I ascertained there were five feet of water in the bilges. I reported the matter to the captain; then we rigged the pumps and put on the donkey engines to work them. As the state of affairs looked serious, the ship was brought to an anchor inside the Heads on Sunday afternoon. We kept the pumps going all night and next day (Monday), until they became choked with coal-dust. I then advised Captain Miles to return to Melbourne, and have the ship docked and examined. He, the captain, at first was under the impression that it was only the water ballast tank that was leaking, and he demurred to go back with the ship. I was so convinced that the ship was leaking that I told the captain that I declined to risk the men’s lives, and my own, in going to sea before the ship was surveyed. Captain Miles told me that if there was nothing the matter with her, I would have to be responsible for detaining the ship. I undertook the responsibility, and the vessel was accordingly brought back to Williamstown on Tuesday, Nov. 19, 1895. After discharging a portion of the cargo into lighters, the ship was taken into the Graving Dock on Thursday, Nov. 21. One of Lloyd’s surveyors, Mr. Watson (and others, I believe), examined the ship, and reported to the captain, and through him to me, that there was nothing the matter with the vessel, and insinuated that the whole affair was simply a scheme to get the ship’s bottom cleaned, in order to make a quicker passage, at the expense of the underwriters. It was further stated that I would have to pay all the expense of the survey and delay; that I was an incompetent man, and in all probability my certificate would be taken from me. Being ill and weak—through exposure in the water while previously trying to find the leak when the ship was down the Bay—I was confined to my bed by order of Dr. McLean of Williamstown, who was tending on me. When the survey report and comments were given to me, they did not help to make me feel any better; but ill as I was, I determined that I would search for the leak myself. On Monday morning, Nov. 25, the ship being then painted over and ready to be taken out of dock, I went under the ship’s bottom with a table-knife, and had not searched many minutes until I discovered—about ten feet distant from the place where I suspected the leak—an opening where the plates overlap each other. I inserted the knife, and found that only the handle stopped the blade from going in further. I ran on deck, and came back with a long piece of tin, this I inserted in the seam with the result that it went clear in to a depth of eight inches. Still keeping the tin inserted, I found I could carry it along the edge of the plate for a distance of eighteen inches. I then went and brought Captain Miles down to see for himself. He said he felt very glad that I had discovered the cause of the leak, and desired me to leave the knife and tin sticking in the aperture until he telephoned for the surveyors to come from Melbourne. On being sent for Mr. Watson did not come, but Mr. McLean, the Marine Board Surveyor, came down to Williamstown, and on his arrival he at once acknowledged that the whole mystery had been solved. He thanked me for pointing the matter out, and stated that everything would have to be done to make the ship sea-worthy before she was allowed to proceed to sea.

During the past nineteen years I have been engineer on board some of the largest steamers afloat, and have also superintended the building of a number of these ships, and it is not pleasant, after my experience, to have my competency questioned in the offensive manner in which it has been. The above statement is, to the best of my belief and knowledge, true in every particular. And I make this solemn declaration, conscientiously believing the same to be true, and by virtue of the provisions of an Act of Parliament of Victoria rendering persons making a false declaration punishable for wilful and corrupt perjury.” Robert Barclay, Chief Engineer. Taken at Williamstown this 29th day of November, 1895, before me, J. A. Reid, J.P.

As a sequel to the foregoing it may not be out of place to give the subjoined extract from the proceedings of the Marine Board, as reported in the _Argus_ of November 30, 1895:—

“The steamer _Ethiope_, having returned to port in a leaking
condition, was detained for repairs, and was to be examined on
November 30 before receiving the permission of the board’s engineer
to proceed to sea. Captain Clark stated that he heard a rumour that
since the vessel had left the dock she was leaking worse than ever.
Mr. McLean, the board’s engineer, said there was no foundation for
the report, and it arose from the fact that the water which was
in the vessel ran aft as her trim was altered. He had given great
attention to the pumps and bilges and was satisfied that she was
now quite dry and watertight. His report was adopted.”

Containing eight Halls of Justice.]

The _Ethiope’s_ case requires no comment from me. It speaks volumes for itself! And now my self-imposed task is done; and in bidding good-bye to the readers of this little book, I may state that in writing it I have endeavoured to effect a twofold object. Firstly, to aid Robert Ponting, the _Alert_ survivor, in earning a living, and, secondly, to aid in drawing public attention to what I believe to be important matters, affecting not only the safety of ships, but the lives of men. If I succeed in either of these objects, I shall feel that my labour—which to me has been a pleasure—has been put forth in a good cause. My long experience at, and connection with, the sea have given me at least some little warrant for dealing with subjects relating to seamen and shipping; but whether the ideas I have given expression to will please or not I cannot tell. Under the impression that _some_ good might be done—to use the language of Burns:—

“Sae I begun to scrawl, but whether
In rhyme or prose, or baith thegither,
Or some hotch-potch that’s rightly neither,
Let time mak proof.”

Seamen are not saints by any means, but if there be one class of men beyond another who should, in the exercise of their calling, have things made for them as safe and as comfortable as possible, surely it is those “who go down to the sea in ships.” I use the term “seamen” in its broadest sense, including “skipper” and all, for I am not altogether a believer in the witticism of the Irishman who said, “There’s but one good billet on board of a ship and, be japers, the captain always takes it.” The latter’s position is a responsible one, and his duty, where rightly performed, is by far the most important of any. Various circumstances have caused this book to remain “on the stocks” for a considerable time, and now that I launch it out on the great sea of PUBLIC OPINION, I cannot give it a better “send-off” than by heartily re-echoing the prayer of the poet:—

“When wilt thou save the seamen,
Great God of mercy—When?
Not shipping kings, but seamen,
Not property, but men!”

AMEN.

FOOTNOTES:

[2] For obvious reasons the declarant’s name is kept back from publication.

[3] It is but an act of “cold justice” to mention that Mr. Ebsworth, in addition to being an able lawyer, is a practical seaman who has passed through eight years’ experience, and holds a chief mate’s certificate from the Board of Trade.

Final Battle with the Lawyers.

“Law was design’d to keep a state in peace,
To punish robbery, that wrong might cease;
To be impregnable: a constant fort,
To which the weak and injured might resort,
But oft, perverted minds its force employ,
Not to protect mankind, but to annoy;
And, long as ammunition can be found,
Its lightning flashes and its thunders sound.”
_Crabbe._

When I wrote the word “Amen” on the last page of the second edition of this book, I believed that my task had come to an end. Fate, however, has decreed otherwise; and in view of surrounding circumstances it is absolutely necessary that this (the third) edition should be considerably enlarged. Moreover, to have kept silent with regard to the after-transactions—which hinge on the events already related—would have been, in my estimation, a sort of moral cowardice, displaying a lack of duty to my readers, and also to myself as a faithful chronicler. Having given the above brief remarks by way of preliminary, I now proceed to relate the incidents in the order in which they took place.

Mr. Robert Ponting sued Messrs. Huddart, Parker & Co., shipowners, for £500 as damages for loss of health and property caused by, as alleged, the sinking of the S.S. _Alert_ through unsea-worthiness; and on July 26, 1896, law proceedings were commenced in the County Court, Melbourne, before Judge Chomley and a jury of four. Mr. J. Ebsworth, solicitor, conducted the case for the plaintiff, and Messrs. Coldham and Schutt, barristers (instructed by Messrs. Malleson, England & Stewart, solicitors), acted on behalf of the defendants. The trial lasted four or five days, and the evidence on both sides was almost a repetition of that given in the two previous trials of “Kilpatrick _v._ Huddart, Parker & Co.” At the close of the case on Monday, August 3, the jury brought in a verdict in favour of defendants, and accordingly judgment (with costs) was entered against Ponting. In all probability the case would have ended here but for a singular circumstance which ultimately completely altered the position of affairs. It came about thus: I (the present writer) took a good deal of interest in the case and attended the court daily. During the address of Mr. Coldham to the jury—on the Friday prior to the conclusion of the trial—I heard one of the jurymen (McGregor) call out to Mr. Coldham these words, “Your argument is absurd.” I know not whether the judge heard the remark. I only know that he did not rebuke the juryman. After adjourning the case till the ensuing Monday the Court rose, and as I passed out of one of the Little Bourke Street entrances I heard Mr. Coldham remark to Mr. Stewart, as they left the doorway, “I promised to meet him (or them) at Menzies’.” No attention was paid by me to what I deemed a casual remark until a few minutes afterwards, when an acquaintance said to me, “If you want to see Huddart Parker’s barrister and solicitor talking to the jury, just go into the bar of Menzies’ Hotel.”

Though believing my friend had made a mistake, I, out of curiosity, went into Menzies’ bar, and there saw, sure enough, Messrs. Coldham and Stewart and three of the jurymen (including McGregor) drinking, smoking, and talking together in the most friendly manner, so far as appearances went. The matter seemed so incredible that I, on reflection, deemed it best to go and bring in some person, as a witness, to the bar. Accordingly I went out, and happening to meet Mr. Ebsworth (solicitor for Ponting) on the street, I succeeded in getting him, somewhat reluctantly, to go with me to the bar. It is almost needless to add that, the moment the five gentlemen saw Mr. Ebsworth, they did not wait for a ceremonious introduction; but, on the contrary, took a hasty departure at once. Immediately after their disappearance I asked Mr. Ebsworth, “What are you going to do about this affair?” “Oh,” he replied. “I can do nothing. Mr. Coldham is at the top of the profession; I am only, so to speak, a new beginner, and it would be against professional etiquette for me to take any notice of these people having a drink together.” To this I rejoined, “And so, rather than break through ‘professional etiquette,’ you would stand by and see your client, Ponting, suffer an injustice. If this be the view you take of what I call a serious matter, I may as well tell you what I will do. In the event of this jury bringing in a verdict in favour of the defendants, and of your drawing no attention to what you, as well as myself, have seen, I will, in the public press, expose the whole affair, including the conversation I have had with you on the subject.” This had the desired effect; and when the jury brought in their verdict against Ponting—as before related—Mr. Ebsworth ventured to draw the Judge’s attention to the hotel bar proceedings. Judge Chomley, however, “pooh-poohed” the incident, and remarked that “in all probability the gentlemen concerned had met by chance in a public bar, and were only taking a friendly glass together.” Nevertheless, he added that if affidavits were brought to him showing that serious wrong had been done, he, the Judge, would consider the matter, and give a decision at a future time. Affidavits were taken by myself and others detailing the whole of the circumstances, and these sworn statements were considered by Judge Chomley about six weeks after the trial; but he saw nothing serious in them, and finally refused to grant a new trial. Notice of appeal to the Supreme Court was at once given by Mr. Ebsworth; but, notwithstanding this notice, a demand for costs was served on Ponting, and because it was returned unsatisfied, the defendants’ lawyers applied for, and obtained, an order _nisi_ to make Ponting compulsorily insolvent. Mr. Justice Hood, however, refused to make the order _absolute_ until after the appeal case had been heard.

Matters remained in this state of suspension till March 3, 1897, when the hearing of the case commenced. The following is an abridged report, culled from the columns of the Melbourne _Age_ of March 4 and 6:—

LAWYERS AND JURORS—THE PONTING APPEAL CASE.

CONDUCT OF COUNSEL AND SOLICITOR
“HIGHLY INDISCREET AND IMPRUDENT.”
MAJORITY OF THE COURT FAVOUR A NEW TRIAL.

The Full Court, consisting of Mr. Justice Williams, Mr. Justice Holroyd, and Mr. Justice A’Beckett, yesterday commenced the hearing of an appeal by the plaintiff in the suit of Ponting _v._ Huddart, Parker & Co., Limited, against a decision by Judge Chomley refusing to grant a new trial of the action. The first ground of the appeal was that the jury, or some of them, did not act fairly and impartially; but were biassed or influenced by reason of the fact that they, or the majority of them, had had conversations with defendants’ senior counsel, Mr. W. T. Coldham, and the defendants’ solicitor, Mr. Gordon R. Stewart, with reference to the action and the matters in dispute therein. That three of the said jury were for a period of at least fifteen minutes drinking and smoking with defendants’ senior counsel and solicitor at the bar of Menzies’ Hotel, and conversing with them with reference to this action, such interview having been made by arrangement and appointment. That a written communication passed between one of the jury (McGregor) and Mr. Coldham, and the contents thereof were discussed at the Law Courts, and afterwards at Menzies’ Hotel, such communication having reference to a point in connection with the action, as to which McGregor had from the jury-box expressed himself as being unfavourable to defendant. That the learned Judge exercised a wrong discretion in refusing to grant a new trial on facts as detailed and set forth in the several affidavits filed in support of and in opposition to the summons. The other ground on which the appeal was based was that certain documents were improperly admitted as evidence at the trial.

Mr. Leon, instructed by Messrs. Ebsworth & Wilson, appeared for the appellant plaintiff; and Mr. Box, Mr. Coldham, and Mr. Schutt, instructed by Messrs. Malleson, England & Stewart, for the respondent defendant. It will be remembered that in July last Ponting, the sole survivor of the wreck of the _Alert_, brought an action against the owners of the vessel, Messrs. Huddart, Parker & Co., Limited, to recover damages for injuries sustained by him as the result of the disaster. The case was tried before Judge Chomley and a jury of four, and resulted in a verdict for defendants. On August 20 last plaintiff applied for a new trial on grounds similar to those of the present appeal, but his summons was dismissed with costs.

MR. LEON, in support of the first ground of appeal, read the affidavits that were used at the application for a new trial made to Judge Chomley, full particulars of which have already been published. The effect of the affidavits made on behalf of the plaintiff was that on July 31, while Mr. Ebsworth, in the course of his address to the jury, paused for a moment to look at some documents before him, Mr. Coldham came into court, leant on the railing of the steps leading to the jury-box, and smiled and winked at the jury. Mr. Mitchell, one of the jurors, gave him a significant glance, and smiled in return. Immediately after the Court adjournment, at 4 o’clock, and while the case was still part heard, Mr. Coldham was heard to say to Mr. G. R. Stewart, “I have promised to meet them at Menzies’ Hotel,” and about the same time was seen to run, with his wig and gown on, towards Goldsbrough’s Lane. He called out to a juryman, Mr. McGregor, “Don’t go away, McGregor, I want to see you. I will meet you at Menzies’.” About 4.20 p. m. the foreman, Mr. Hopkins, and Messrs. Mitchell and McGregor, two other jurors, were seen standing before the bar at Menzies’ Hotel with Messrs. Coldham and Stewart, talking earnestly and drinking and smoking. It was also said that as the jurymen left the box on the afternoon in question, one of them (McGregor) handed Mr. Coldham a written communication. In answer to these allegations affidavits were filed denying that Mr. Coldham told Mr. Stewart that he had “promised to meet them,” or that he had said anything to that effect. While standing at the barristers’ table immediately after the adjournment, Mr. Coldham was handed a piece of blotting-paper, on which was a sketch and figures relating to the _Alert’s_ funnel, concerning which the juryman McGregor had spoken in the box while the case was proceeding. He ran after McGregor to give it to him back, and on meeting him accidentally at Menzies’ handed it to him, saying, “Here is your beautiful production.” He, with Mr. Stewart, then accepted McGregor’s invitation to have a drink. Nothing whatever was said about the case, and the allegation that counsel winked at the jury was false, and a grotesque invention.

MR. BOX said the whole point of this matter was whether there was any pre-arranged meeting at Menzies’. His client said there was no pre-arrangement, and that the meeting was purely accidental. Who cared twopence about a glass of wine?

MR. JUSTICE WILLIAMS: I would say it was very imprudent, to say the least of it, of counsel and solicitor, to go drinking with three of the jury during the hearing of the case.

MR. BOX: Whether they had a drink or not, it was not by pre-arrangement. Mr. Coldham swears that he made no such statement as that alleged relative to a promise to meet any of the jurymen.

MR. LEON said he did not care whether there was a conflict of evidence on that point or not. He did not rely on that. In his opinion Mr. Coldham supported Mr. Reid’s statement, because he said in his affidavit that he called out to McGregor that he wanted to see him. The main feature of this affair was the agreement of all the deponents, and the admission by Mr. Coldham and Mr. Stewart that they were drinking with three jurymen in the bar of an hotel before the case had been concluded. He had not got to prove that there was actual impropriety, but there could be no doubt about the principle that even the appearance of wrong-doing must not be shown in the administration of justice. In the first place, it was a gross impropriety on the part of these three jurymen to drink and smoke and converse in a public bar with counsel and solicitor for one of the parties in a case being heard by them. It was very improper for counsel and solicitor to be seen with members of the jury in a public bar in the presence of people who knew that litigation was going on, and that the judges of the facts in that litigation and the advocates for one of the parties to that litigation were “hobnobbing” together. He had no hesitation in saying it was most indiscreet and improper, and if there was the appearance of impropriety in connection with the case the trial must be void. The public must feel satisfied and rest content in their minds that not even the shadow of suspicion could be cast on the administration of justice. That principle had been laid down by the Court, and such being so, this occurrence was such an impropriety as would vitiate the proceedings. It was admitted that the juryman McGregor was a friend of Mr. Coldham’s, and had passed him a paper relating to the case.

MR. BOX: In open court.

MR. LEON did not care whether it was in open court or not. It was a most improper thing to do. Communications had no right to be passed between the judge of the facts of the case and the advocates of one of the parties in the case. Nothing of that kind could be tolerated, because people would say, and be justified in saying, there was a very fine understanding between defendants’ counsel in the case and that juryman; that they seemed to be on excellent terms with each other. To allow such a thing to pass would be intolerable, and bring the administration of justice into contempt, The principle for which he contended had been laid down by Mr. Justice Hood in a considered judgment.

MR. SCHUTT said that before the Court proceeded to deliver judgment on the first ground of appeal, he would like it to consider a point of law raised as a defence at the trial of the action in the lower Court, but not then argued, as the jury found in defendants’ favour. He believed the point was absolutely fatal to plaintiff’s case, and even if the Court were of opinion that a new trial should be granted, it would be useless in the face of this point to order a new trial to go on.

MR. JUSTICE WILLIAMS said the Court would deliver judgment, and the point could be argued after.

MR. JUSTICE A’BECKETT said he had the misfortune to differ from his learned brothers as to the course which should be taken with regard to this appeal. The ground on which he thought a new trial should not be ordered, was that beyond all question it would inflict a great hardship on the defendants, who had succeeded in the action, and who were in no way to blame for the indiscretion which had occurred. He thought the duty of the Court in dealing with litigation between the parties was to do justice between the plaintiff and defendants, and not to make an order subjecting to injustice one of those parties in vindication of a principle, unless it was absolutely necessary that they should proceed to that vindication; nor should they make it for the mere purpose of marking strongly their disapproval of that which had occurred. Viewing the case in that aspect, it appeared to be that they were not called upon to vindicate any principle, or to express their disapprobation of what had occurred (disapprobation that both sides admitted must be expressed), in a way which would produce the very serious results that would follow the granting of a new trial. What occurred was done openly, and, as Judge Chomley had said, it was the very last mode of approaching a jury improperly that any man in his sober senses—in his “glass of wine” senses—would attempt. The evidence did not show that there was the slightest attempt made to influence the jury, and when it was known what really occurred, he did not think the conduct would convey to a rational mind any cause for suspicion. The drinking of this glass of wine at the invitation of one of the jurymen was a matter which people might observe upon. They might say it did not look well to see counsel treated by that juryman. He thought that observation would be quite right; it was conduct which the Court would not sanction or countenance, and if the Court had called upon those engaged in this matter for an explanation, it would express its disapprobation and make them pay. But he did not think they should go beyond that, particularly as the judge who tried the case thought it was not a matter in which it would be right to order a new trial. Being convinced that the jury were not influenced, and that the fact that counsel and solicitor had accepted sixpennyworth of hospitality from one of the jurymen would not induce anyone to suppose they would be influenced, he thought this new trial should not be granted. The impropriety, such as it was, did not require such an expression of disapprobation by this Court as would be expressed by granting a new trial.

MR. JUSTICE WILLIAMS thought there should be a new trial. It was said that they should not grant a new trial, because their so doing would be a hardship upon the defendant. That such was not an objection to the granting of a new trial was decided by authority. In the case of Costa _v._ Merest (3 B. and B., 272), some one, a stranger to both the parties, circulated in the Court handbills reflecting on the plaintiff’s character. Defendant was absolutely innocent of any connection with the distribution of these handbills, and the Court that heard the application for a new trial assumed that the jury had not been unduly influenced. But, taking the defendant’s statement as true, the Court made the rule absolute for a new trial. If any case would be a hardship on a defendant he thought that would have been. There was a defendant entirely innocent, yet because it might be alleged with reasonable suspicion or belief that the administration of justice had been influenced by the distribution of the handbills, the Court on that ground granted a new trial. In this case, so far as the question of hardship was concerned—with which he thought they had nothing to do—the defendant was not so entirely innocent. The parties to litigation lost their personality in their counsel and solicitor, and the persons who did these acts which gave rise to reasonable suspicion in the minds of plaintiff and others who witnessed them, were the defendants’ own counsel and legal adviser. Therefore, in the circumstances, he did not think the argument of hardship applied. Then it was said the learned Judge of the County Court had already decided the matter of this application; that in the exercise of his discretion he refused a new trial. In his opinion, however, the learned Judge had not dealt with the application on the grounds upon which it now came before the Court on appeal. He had apparently gone on the aspect of what was the intention of the defendants’ solicitor and counsel, whether they were actuated by any corrupt motive, and whether the jury were in point of fact influenced by what they did. Those were the grounds on which Judge Chomley dealt with the case; and, speaking for himself, he did not differ from the view taken by the learned Judge on that aspect. The principle upon which the Court should exercise its discretionary power in granting a new trial on an application of this kind was, that if from the acts of the jury or the legal advisers of one of the parties in connection with the jury, there were reasonable grounds for suspicion that the administration of justice was being improperly influenced, the Court should, in order to preserve the administration of justice from that stain or taint, grant a new trial. It appeared to have been established on authority that where acts had been committed such as to give reasonable ground for suspicion, in the minds of the litigating party and his advisers or the public, that there had been an attempt to bias and influence the proper administration of justice, the Court, for the purpose of placing the administration of justice as far as possible above reasonable suspicion, would grant a new trial. Another case had been cited (Hughes _v._ Budds, 4 _Jurist_, p. 156), where some of the jury managed to get out of their room on more than one occasion while considering their verdict, and two of them went to an hotel, where they were seen drinking beer and eating bread and cheese in the company of the plaintiff’s attorney. The Court there held that these were acts of impropriety on the part of the jury sufficient to awaken a reasonable suspicion that the administration of justice had been tampered with. In the Victorian Court the same principle seemed to be observed, according to decisions by Mr. Justice Hood and the Chief Justice. He accepted every word of Mr. Coldham’s affidavit, and from the undisputed facts it was apparent that he knew the juryman (McGregor) before. This was all the more reason why he should have kept him at arm’s length. It appeared that McGregor handed Mr. Coldham a piece of paper just as the Court had adjourned. That fact alone would be calculated to excite suspicion. The learned counsel thoughtlessly and indiscreetly took this piece of paper, and looked at it, when his proper course would have been to hand it back at once, and say to the juryman, “You must not communicate with me.” This piece of paper contained, in the shape of a drawing, the juryman’s views on the construction of a portion of the vessel. That was an improper act. Mr. Coldham ran out into the street, and called out that it was of no use to him. Getting as a response “That’s all right,” he shouted out that he intended to take it down to him. Learned counsel could not remember whether he said “at Menzies’ Hotel,” but what was present in his mind was that he would bring it to the Menzies’. Therefore, he must have known the juryman was going there. He did meet the juryman there, and together with the defendants’ solicitor had a drink with him after handing the paper back. Such conduct on the part of both the counsel and the solicitor was highly indiscreet and highly imprudent, or, as Mr. Box admitted, “heedlessly indiscreet.” Coming back to the principle he had enunciated, what would these undisputed facts give rise to in the minds of the plaintiff and the public generally? They would naturally give rise to the suspicion that plaintiff’s case, so far as the administration of justice was concerned, was not receiving fair play. He would go further and say that the facts would reasonably give rise to the suspicion that there was some underhand work going on which was calculated to influence the jury in favour of the defendant. Upon that ground, and acting on the principle he had referred to, he thought there should be a new trial, and in coming to that conclusion he did not think it was in the slightest degree contrary to that on which Judge Chomley relied. Upon these grounds, and the principle he had named, and with the view of keeping the administration of justice free from reasonable suspicion or taint, he thought this Court was acting wisely, if he might say so, in following authorities, both ancient and modern, and saying that there should be a new trial.

MR. JUSTICE HOLROYD said he concurred with his learned brother, Williams. He considered Mr. Coldham’s affidavit, on the very face of it, bore the stamp of truth; but he felt that he was absolutely constrained, by authority, to arrive at the same conclusion as his brother, Williams. He would be directly contravening English decisions, and decisions of this Court, if he were to decide otherwise. No doubt it was a great hardship to the defendant that he should lose the fruits of his victory because of an indiscretion upon the part of jurymen or his counsel or solicitor. At the same time that was a necessary condition of the relationship which existed between counsel and solicitor and client. Some people, not familiar with the great caution that both bench and bar, he believed, exercised in maintaining the pure administration of justice, might fancy that the Court in coming to this decision suspected some foul play. Speaking for himself—the other members of the Bench had spoken for themselves—he suspected none, but he cordially agreed that the administration of justice must be free from suspicion. Therefore he concurred in the judgment pronounced by his brother, Williams.

MR. LEON: Then your Honour will make an order allowing the appeal, with costs?

MR. JUSTICE WILLIAMS: Before doing so we will hear what Mr. Schutt’s law point is.

MR. LEON said he was not instructed as to the point, and the Court, therefore, adjourned the case until Thursday next, the understanding being that subject to the point of law involved a new trial should be ordered.

* * * * *

The Menzies’ Hotel incident, as a matter of course, created a good deal of stir in the Melbourne Press. It is impossible in these pages to give all the comments; but the following well-argued article front the leading columns of _The Age_ of March 10, 1897, is worth quoting:—

“‘A highly indiscreet and highly imprudent act’ on the part of Mr. Coldham, the barrister, has involved Messrs. Huddart, Parker. & Co., and Mr. Ponting, in pretty stiff law costs. So says Mr. Justice Williams; and Mr. Justice Holroyd adds his verdict that this is ‘a necessary condition of the relationship between counsel and client.’ If counsel blunder clients necessarily suffer, while the advocates may reap advantages from their own mistakes. This is one of the delightful aspects of the administration of the law, as distinguished from every other kind of profession. The ship captain who commits a ‘highly indiscreet and highly imprudent act’ runs the risk of being disrated for his rashness or carelessness. The surgeon who carves his patient like a butcher may be sued for improper and unskilful treatment, and if unsuccessful in his defence loses cash and credit at the same time. The carpenter or plumber who builds unskilfully must repair the damages of his default. But the lawyer who gives unsound advice, or conducts his case with imprudence and indiscretion, may simply shunt the consequences on to his client, and is as merry as before.

“Mr. Coldham’s case necessarily raises the question of what ought to be a lawyer’s responsibility in the management of his client’s concerns. Mr. Ponting, the sole survivor from the wreck of the _Alert_, sued the owners of that steamer for damages. The case was tried in the County Court before a judge and jury. Mr. Coldham acted as counsel for the defendant shipowners. One of the jury, a man named McGregor, was a personal acquaintance of the barrister. During the progress of the trial, according to one set of affidavits, certain winks and nods and smiles and by-play were indulged in between counsel and this juryman. Mr. Coldham denies the winking part of the business. However, there is something that he does not deny. This juryman of his acquaintance handed to him during the trial a private paper connected with the case, and subsequently he met his friend at an hotel bar, and had some drink and talk with him. This almost inevitably gave rise to the suspicion that the jury had been improperly influenced. A new trial was applied for, principally on that ground; and though Judge Chomley refused to grant it, and sustained the jury’s verdict, the Full Court judges have done otherwise, on the ground of the ‘highly indiscreet and highly improper’ conduct of Mr. Coldham.

“To the man of law the interest that centres in this case will be the grounds on which the judges differed from each other. To the ordinary citizen it will rather lie in the fact that the verdict of the Court mulcts the client for the lapse of the lawyer. Mr. Justice Chomley refused to disturb the jury’s verdict on the ground that, though Mr. Coldham’s conduct had been wrong, it had not corruptly influenced the jury’s minds. Mr. A’Beckett held the same opinion. Mr. Coldham, he holds, had done an exceedingly foolish act in hobnobbing with jurymen in an hotel bar during the progress of the trial. He said ‘it was conduct which the Court would not sanction or countenance; and if the Court had called upon those engaged in this matter, it would express its disapprobation and make them pay.’ But as the conduct in question was not corrupt, he refused to inflict the hardship of a new trial on Messrs. Huddart, Parker & Co. That is one view of the case. Justices Williams and Holroyd take quite another. They hold that Mr. Coldham’s acts gave rise to reasonable suspicions in the minds of onlookers. They no more say that the barrister acted corruptly than do the other judges, but they are clear that his conduct was such that any reasonable man might have entertained from it a suspicion of corruption. Mr. Justice Williams says that it was apparent that he knew the juryman (McGregor) before. This was all the more reason why he should have kept him at arm’s length. It appeared that McGregor handed Mr. Coldham a piece of paper just as the Court had adjourned. That fact alone would be calculated to excite suspicion. The learned counsel thoughtlessly and indiscreetly took this piece of paper, and looked at it, when his proper course would have been to hand it back at once, and say to the juryman, “You must not communicate with me.” This piece of paper contained, in the shape of a drawing, the juryman’s views on the construction of a portion of the vessel. That was an improper act. Mr. Coldham ran out into the street, and called out that it was of no use to him. Getting as a response “That’s all right,” he shouted out that he intended to take it down to him. Learned counsel could not remember whether he said “at Menzies’ Hotel,” but what was present in his mind was that he would bring it to Menzies’. Therefore, he must have known the juryman was going there. He did meet the juryman there, and together with the defendants’ solicitor had a drink with him after handing the paper back. Such conduct on the part of both the counsel and the solicitor was highly indiscreet and highly imprudent, or, as Mr. Box admitted, “heedlessly indiscreet.”

“On these grounds Justices Williams and Holroyd have upset the jury’s verdict, and granted a new trial. There were other reasons alleged, and there may possibly have been other reasons in the minds of the judges. The Ponting trial is almost precisely on the same lines as three or four previous trials arising out of the same wreck. The widow of a drowned sailor named Kilpatrick sued the owners of the _Alert_, and got a verdict in two separate actions, on the ground of the vessel’s unsea-worthiness. On an appeal to the Full Court she was again successful, and the action was then carried to the Privy Council, where it now remains. Ponting’s case came before a County Court jury, and was dismissed. This might possibly have supplied an additional ground for suspicion that the jury had been improperly influenced. That suspicion may be ever so ill-founded; but there it was, and there it is. Mr. Coldham’s imprudence caused a miscarriage of justice, and a wrong to both the parties to the trial. The point of immediate interest to the litigating public is as to whether in a case like this the innocent client ought to pay, and the inculpated practitioner escape. Clearly, says Mr. Justice A’Beckett, the Court has power in cases like this ‘to make the lawyer pay.’ And we know this from the action of the Chief Justice on June 28, 1894, when he dismissed a jury in a part-heard case because Mr. Field Barrett, solicitor, had been seen speaking to one of the jurymen. The Chief Justice said that if he discovered the expenses of the Crown in the suit he would order Mr. Barrett to pay them. The excuse put forward that Mr. Barrett was a personal friend of one of the jury was declared by the Chief Justice to be an additional reason for ‘keeping him at arm’s length.’ Mr. Coldham could not have been ignorant of this case nor of the strict rule from which it had its rise. He therefore offended with open eyes against one of the canons of justice. The argument arising out of this act ought to have a strictly impersonal, and not a personal, bearing. It is that when an officer of the Court commits an improper and unprofessional act which entails cost on the public at large as well as on the litigants in the trial, he should be the chief sufferer, and not go scathless whilst others carry the burdens of his culpability. It is all very well to be tender of Mr. Coldham’s feelings; but the ordinary ethics of daily life demand that every wrong-doer ought as far as possible to bear the penalty of his own wrong, and it seems something like an outrage on equity if a lawyer is to be permitted to commit ‘improper’ acts against the dignity and sacredness of justice, and then lightly throw the penalty on others.”

* * * * *

Notwithstanding the seriousness of the “Bar” episode, there was a good deal of the comic element involved in it, and therefore the journal (quoted below), which is edited and conducted by and for barristers, evidently for once at least, carried out Pope’s advice:—

“Eye Nature’s walks, shoot folly as it flies,
And catch the manners living as they rise;
Laugh where we must, be candid where we can,
But vindicate the ways of God to man.”

JURISPRUDENCE IN MELBOURNE.

Concerning the fact of the barrister and the solicitor for the defendants having been seen drinking in an hotel bar with the jurymen during the progress of a County Court case, the following comments appeared as a leading article in _The Australian Law Times_ of March 20, 1897:—

“A QUESTION OF PROPRIETY.

“PONTING _v._ HUDDART, PARKER & COMPANY.

“When Ponting, the plaintiff, escaped from his watery grave when the S.S. _Alert_ foundered so suddenly, and was cast upon the back beach at Sorrento, he, no doubt, thought himself a fortunate man. Most solitary survivors from wrecks would so think themselves, and would settle down to a quiet life. Not so Ponting. He started to voyage on a sea hitherto unknown to him—bestrewn with far more wreckage than sweeps to and fro in the cross seas that wash our southern coast. Ponting went to law and sued his owners for damages. Now, law in the Supreme Court is not always without its risks, but law in the County Court and before a jury is never without its perils. We all know the result—verdict for the defendants. Of course, in a case of this kind there was the inevitable new trial application, and that unsuccessful, the still less inevitable (to use the phrase) appeal. And all because the counsel for the defendants was observed, after winking at the jury—in itself a venial offence—to go across to Menzies’ Hotel during an adjournment and have a ‘glass of wine’—that is the euphemism for whisky and soda—with the gentlemen, or some of the gentlemen, of the jury.

“The counsel in question was, undoubtedly, very foolish to do so. Counsel remarked, in arguing the point for the respondents, that he was ‘heedlessly indiscreet’; instead of being, we presume, merely indiscreet, or, at worst, indiscreet with a certain amount of discretion; or, as it might be put, he should have gone to Menzies’, being discreetly thirsty, and have drunk at discretion by himself; _i. e._, failing the proximity of some fellow-counsel, whom he might have invited to drink with him, or failing such counsel accepting such invitation—two eventualities as uncommon in Melbourne as our old friend Fearne’s ‘Contingent Remainders’ are in the Mallee.

“Instead, therefore, of going ‘hatting,’ or indulging in a ‘Johnny Woodser,’ _anglicé_ drinking by himself, he, heedlessly indiscreet, or heedless and indiscreet—as one with a keen scent for good English would prefer—hobnobs with the jury. He should have known better. That is to say, he knew better and should have acted better—but did not. In the first place, the jury was probably a common jury; or, if a special jury, they were probably still more common, with whom no eminent counsel should foregather; because special juries generally consist of publicans, ex-publicans, or retired gaol-warders, or a proportion of each; worthy citizens, doubtless, good fathers, good husbands, and so forth, who paying so much rates per annum for their ‘bits of property’ are thereby and therefore pre-eminently qualified by law, reason, and common sense to decide in a jiffy all those subtle points of tort or contract in which ordinary bodies, from the Full Court to the Privy Council, find so many difficulties.

“The jury having given in their verdict in favour of the defendants, the majority of the Full Court have decided that this drinking business was a good ground of appeal. Now, although, as a rule, what everybody says must be untrue, we are inclined to agree with the majority in this case, and to disagree with the minority, consisting of A’Beckett, J. That learned Judge said ‘he had the misfortune to differ from his learned brothers as to the course which should be taken with regard to the appeal.... What occurred was done openly, and it was the very last mode of approaching a jury improperly, that any man in his “sober glass of wine” senses would attempt. They might say it did not look well to see counsel treated by jurymen.... Being convinced that the jury were not influenced, and that the fact that counsel and solicitor had accepted a sixpennyworth of hospitality from one of the jurymen would not induce anyone to suppose that they would be influenced, he thought this new trial should not be granted.’

“That is all very well, but Mr. Justice A’Beckett seldom practised on the common-law side of the Court, and, as Ulpian says (we translate):—

“‘Equity’s an evil, but common law’s the devil.’
_Pandecta_, tom. ccix., p. xviii, _passim_.

And although jurymen are sworn to give their verdict according to the evidence, and, as a rule, observe their oath so sworn on a tenpenny Bible, yet evidence seen through the medium of a tumbler full of grog with, it may be, a little lemon and sugar in it, and in company with an advocate for one of the parties only, becomes a somewhat lop-sided affair. Hospitality is a most excellent, and we fear, in these times of depression, too rare a practice, and we should be the last to say anything to discourage it; but when administered in sixpennyworths by jurymen to counsel—of one of the parties only—during the progress of a case, and before a bar counter, it is, to say the least, somewhat out of place.