issued to the creditors in the insolvent estate a printed circular, giving his version of his dealings with the insolvent, and of the circumstances under which he became assignee of the bill of sale, and asking them to sign a document declaring that they disapproved of the action, and to cause all further proceedings in it to be stopped. Held, that defendant was not, by his action in sending the circular, guilty of a contempt of court, and that the circumstance that the creditors might also be witnesses made no difference. MOTION to make absolute an order nisi calling on John Roessler to show cause why he should not be committed for contempt of court. parties. Take for instance the case of a man injured in an accident, who sets up that amongst other injuries he is liable to lose his sight. Doctors and experts are called in and give evidence, and the jury find that he is not liable to lose his sight at all, and therefore they only give him £500 instead of £1000. Would it not be the height of absurdity to say that in that case the judge has, not discretion to give the defendants part of the costs of that trial? It is the same here. In this case £647 40s. was obtained on the first trial. The evidence has been gone over again; it may be fresh evidence was given; it may be that The plaintiff, William Castles, as the trustee of counsel conducting the appeal case conducted it the insolvent estate of Gustavus Hirsch, brought in a different manner; and the effect of that this action against the defendant to set aside a appeal was to reduce the amount to £518- bill of sale given by Hirsch to B. K. & Co., of practically by a fifth. The judge, under these which bill of sale defendant was the assignee. circumstances, says that he considers the respon- The defendant resisted the claim, and pending the dents are entitled to the whole of the costs of the action, issued to the creditors in Hirsch's estate a action; and then he says that in his opinion the printed circular, setting out his version of his defendants have succeeded as regards the reduction dealings with Hirsch, and of the circumstances of damages, and that being so gives to them the under which he became assignee of the bill of sale, costs they incurred in conducting that part of and asking them to sign a document, enclosed the case which had the effect of reducing those with the circular, expressing their disapproval of damages. I think he had power so to do, and the trustee's course of action, and to stop all therefore I agree with my brother judges that this further proceedings. It appeared on the affidavits appeal should be dismissed, with costs. filed by the plaintiffs, that all the creditors to whom Solicitors for plaintiffs: Chambers, Bruce & the circular was sent were intended to be called as witnesses in the action. The plaintiff obtained Solicitors for defendants: Tozer, Conwell & from Cooper, J. an order nisi, calling on the M'Nab. Tozer. MARCH SITTINGS OF THE FULL COURT. CASTLES V. ROESSLER. Contempt of court-Comment on action sub judice creditors. Plaintiff, who was the trustee in an insolvent estate, brought an action against defendant to set aside a bill of sale given by the insolvent, of which defendant was the assignee. While the action was pending, defendant 1 defendant to show cause why he should not be committed for contempt. Lilley, for plaintiff: The circular, which is published while the case is sub judice, is addressed to persons who hold the dual position of creditors in the insolvent estate and witnesses in the action. On the authority of Coats v. Chadwick (1894, 1 Ch., 347), any attempt pending a cause to influence a witness, or even a party in the cause, is a contempt of court. The defendant has no locus standi in the insolvency, as he has not proved in the estate, and his attempt to influence the creditors was quite unwarranted. The defendant, in person, was not called upon. F GRIFFITH, C.J.: This is an application to commit the defendant for contempt of court for issuing a circular commenting on the action. The plaintiff is the trustee of the insolvent estate of one Hirsch, and the defendant is the assignee of a bill of sale given by Hirsch before his insolvency. The action is brought to set aside that bill of sale. The defendant defends the action, and alleges in his defence the existence or two other bills of sale in his favour. He has issued a circular, which is the circular complained of, to the other creditors in the estate, requesting them to sign a document declaring their disapproval of the action, and asking them to stop any further proceedings. If this were a question of defamation, the circular would be called a privileged communication. The term "privilege" is generally used with special reference to cases of defamation, but I think that the underlying principle is a general principle of common sense, -that if a man has an interest in having the truth told to some one else, he is entitled to tell him the truth himself, and will not be blamed if he does so. MARCH SITTINGS OF THE FULL COURT. GRIFFITH, C.J., COOPER AND REAL, JJ. REGINA 2. WHITEHOUSE. Criminal law-Embezzlement-Proof of incorporation of company-Crown case reserved. On the trial of W. for embezzling moneys, the property of The New York Life Insurance Coy., evidence was given that a company carried on business in Brisbane under that name. No other evidence was given of the incorporation of the company in Queensland or elsewhere, nor was the name of any member of the company proved. W. was found guilty. Held, on a Crown case reserved, that there was no evidence of the existence of the company as a corporation as distinguished from a partnership, and that, as no evidence had been given of the name of any partner, the conviction must be quashed. CROWN case reserved by District Court Judge Miller. On the case stated by the learned District Court Judge, it appeared that the prisoner was I think, applying this principle, that the charged before him at Rockhampton with the embezzlement of £10 10s., the property of the New York Life Insurance Coy. No evidence was given at the trial of the incorporation of the company in Queensland or elsewhere, but it was proved that a company was carrying on business in Brisbane under that name. The learned judge allowed the case to go to the jury, but reserved, (among other points which were not decided by the court), the question whether there was any proof of the existence of the company as an institution. The jury found the prisoner guilty. defendant, if he considered that he was being COOPER, J. I am of the same opinion. I The prisoner, in person, submitted that there was no proof of the existence of the company as a corporation as distinguished from a partnership, and that, as there was no proof of the name of any partner, the conviction should be quashed. Byrnes, A. G., and Blair for the Crown. The fact that the company was carrying on business under the name stated, and the nature of that business, is some proof that it was not merely a partnership. They cited R. v. Langton (2 Q.B.D., 296). REAL, J., referred to R. v. Connell (6 Q.L.J., 209). GRIFFITH, C.J. The first question reserved in this case is whether there was any proof of the existence of the New York Life Insurance Company as an institution, and that the prisoner was employed by that institution. I understand that to mean any proof of its existence as a corporation as distinguished from a partnership. The prisoner was charged before the District Court with embezzling the money of the New York Life Insurance Company, and the only evidence of its corporate existence was that a company, calling itself the New York Life Insurance Company, carried on business in Brisbane under that name. There was nothing else to show, and no other evidence to indicate, that it was incorporated by the law of Queensland, or by the law of any other country. We know that in these days there is a very large number of limited companies carrying on business in Australia, some incorporated by the law of Queensland, and some incorporated by the law of other countries. In the case of a limited company carrying on business in Queensland, the use of the word "limited" as part of its name, would, I think, in accordance with the case of R. v. Langton, be some evidence that the company is incorporated. In the case of other companies, a statement by a witness that a company was formed, say, in New York or New South Wales, or anywhere else, and was carrying on business by that name, would be some evidence that it was a foreign corporation, and entitled to recognition by the laws of international comity. But in the case of an institution as to which there is nothing to show how or where it originated, the mere fact that it is called a company does not indicate with any certainty that it is anything more than a We know that there are many partnership. partnerships, in Queensland and elsewhere, calling themselves companies, which are not incorporated. And, in the absence of any further evidence, either in the name of an institution or otherwise, than the use of the word "company," I do not think it lunatic was a partner in a firm of solicitors. The partnership was dissolved by the court, and it was referred to the Curator to take the accounts of the partnership. He employed, with the approbation of the other partners, a professional accountant to prepare a statement of the accounts of the partnership, and also employed a solicitor to assist him in preparing his certificate. is a legitimate inference that it is incorporated. Half the accountant's charges were allowed, but the costs On the evidence in this case it is equally probable of professional assistance were disallowed. REPORT by Curator in Insanity that he had expended £26 5s. in procuring a report from an accountant, and incurred other expenses for professional advice, in the estate of J. R. NewmanWilson, a person of unsound mind, and application that he might be allowed those expenses out of the estate of the insane person. Referred to the Full Court by Griffith, C.J. learned Chief Justice. Byrnes, A.G., and Bannatyne for the Curator, submitted that these expenses should be borne by the estate of the insane person, and not come out of the Consolidated Revenue. GRIFFITH, C.J.: This matter arises out of a report made by the Curator in Insanity in the estate of James Rowe Newman-Wilson. He reported to me in Chambers that he had expended £26 5s. in procuring the report of an accountant as to the partnership affairs of the lunatic and his former partners, and that he had incurred other expenses for legal costs that is, professional costs of a solicitor to advise him on various matters. He applied that those amounts might be allowed out of the estate of the lunatic. I referred the application to the Full Court, entertaining considerable doubts whether these expenses were properly incurred in the care, protection, or management of the estate within the 91st section of the Insanity Act. The question as to the first item arose in this way: After the order finding Mr. Wilson insane was made, an order was made for the dissolution of the partnership between Mr. Wilson and his late partners. By that order it was referred to the Curator as an officer of the court to take the necessary accounts and inquiries, and the order directed that this inquiry should not be proceeded with until a committee was appointed. Subsequently, a committee was appointed, and considerable progress was made in investigating the accounts. Then the committee died, and another was appointed afterwards. During the interval, the Curator, who was in point of law the committee also during that interval, made an arrangement with the former partners of the lunatic to employ an accountant to investigate the partnership affairs, and bring up a report which might assist him in coming to a conclusion in the matter. It appears to me that under those circumstances the accountant was employed jointly, and for the joint benefit of the lunatic and of the other partners. I cannot see that it would be fair to impose upon the lunatic's estate the whole expenses of that report. Technically, perhaps, no part of them was properly incurred in the management of the estate, because the order directing the Curator to take the accounts, expressly directed that the accounts should not be taken until a committee was appointed. The Curator evidently did not think that, the committee having died, he was precluded from continuing his investigation during the vacancy of the office of committee, and perhaps the order was open to that construction. In this case, what the Curator has done was, under the circumstances, an extremely sensible thing to do. It saved a great deal of time, and, I think, expense. I do not think, however, that more than half the fee of the accountant can be said to have been properly incurred in respect to the care, management, and protection of the estate of the lunatic. Under all the circumstances, therefore, I think it can be said that that portion of the fee was properly incurred. With respect to the costs of the solicitor, they are costs which may be called the costs of employing a legal assessor; that is to say, the Curator having to transact, in the performance of his office, certain business requiring legal knowledge, and not possessing that legal knowledge himself, called in a solicitor to sit by him and advise him as he went along, and to draw up a report. I think, whether the Curator is a layman or a lawyer, the duties of his office require him to have, and if he has not, to get in any way he can, at his own expense, such legal knowledge as will enable him to discharge the duties of his office. He must not obtain the knowledge at the expense of the estate; of course he may obtain it at the expense of the Government, There is a Crown Law Department, of which the Curator is an officer, and that office will of course give him such legal advice as he requires for the performance of his duties. I think that, under the circumstances, half the amount paid to the accountant-namely, £13 2s. 6d., may be allowed. The other amounts asked for cannot be properly allowed. COOPER, J. I am of the same opinion. If ss. 91 and 158, REAL, J.: I also concur. which specially provide for the instances in which costs are to be allowed out of the estate, do not give the Curator the costs, I don't see how he can get them out of the estate. If the matter does not come under those sections, the Curator can do as the Chief Justice says go to the Crown Law Office for his legal advice. END OF VOLUME VI. |