SOLICITOR OR TRUSTEE?

Auckland Star, Volume XXV, Issue 69, 21 March 1894, Page 2

SOLICITOR OR TRUSTEE?

MR HUGH H. LUSK, CALLED UPON

TO EXPLAIN.

A SYDNEY CASE,

A* the Supreme Courb. Sydney, on Tuesday, March 13th, in Banco, before the Chief Justice, Mr Justice Windeyer and Mr Justice Stephen, in re H. H. Lusk, ex parte S. J. Hockley, Mr Hugh H. Lusk appeared in person in compliance with a requesb of the Court that he should answer certain statements contained in the affidavit of Samuel Joseph Hockley of Druitt Town, labourer, and show cause why he should nob be struck off the roll of barristers. The affidavit in question contained the following allegations :—Hockley, as administrator of the •state of the late John Samuel Hockley, ia the plaintiff in an equity suit against one William Archer, and owing to bho solicitor Who had been retained by him declining to act further in the matter he was desirous of obtaining an adjournment of the caso, as he waa unable to conduct the case himself. On being recommended to go to Mr Luck, he called upon him and asked him to take the necessary steps to obtain possession of the land which was the Bubjecb matter of the suit. On the 30th May, 1892, Mr Lusk was paid £50, for which the following acknowle_Kt_enb was given:—"Mrs Harwell: Dear Madam,—l am prepared to guarantee that the sum of £50, which you aro about to advance for fees in the matter of the Hockley family and Archer, shall be repaid to you as soon as arrangements are made for carrying the case to a hearing. And on behalf of tho family I engage thab I will see this done.— I am, yours faithfully, Hugh H. Lusk." On the 30th June of tbe .ame year, Mr Lusk was paid a further sum of £150, and gave the following receipt: —"I have this day received from Mr Samuel Joseph Hockley the sum of £150 sterling, to be applied by me bo the payment of fees of Court and legal expenses in proceedings to b8 at once seb on foot for the recovery of the land ab Burwood formerly owned by Mr John Samuel Hockley, now deceased. And I undertake, on condition bhat the entire control and managemenb of this mabter be left to me, to have this cause broughb, into the Supreme Court and decided by a jury, or by judge sitting aa a jury, without calling upon him or the family tor any further sum for fees or costs.— Hugh H. Lusk." On the Ist March Mr Hockley received from Mr Lusk a letter in the following terms :— "I cannot geb the subpoenas from Mr Blunden to send you, as he sayß he will do nothing more unless he receives £20. I agreed to give him this amounb in addition to what he has had, but I find I cannob raise money in any way, and he will nob acceDt the costs out of pocket for the subpoenas. My money from England and New Zealand, on which I have been counting, for montha past, has nob yeb come to hand, and I am quite helpless of course if he won't go on. 1 cannot do it without him, and the case will have to be withdrawn. In thab case, I will of course return the money as soon as my own money arrives, and will also pay anything in excess needed to bring ib on again. I have offered Mr Blunden an endorsed promissory note at a short data for the £20, but he seems determined to demand the money and to take nothing else and nothing less. I am more sorry than I can cay for this business, which has upset me more than anything I can remem ber to have happened to me in the whole of my experience as a lawyer. I have written to him again to-day. and shall know finally in the morning." Mr Lusk having now declined to act further for him withoub the intervention of a solicitor, he was unable to prepare hia case and geb his witnesses together. , _ . In reply, the respondent road an affidavit, in which he made the following statements : —It was not true thab the plaintiff instructed bim to take the necessary steps to obtain possession of the land ; bub it was true thab, ab bhe earnest and repeated solicitation of bhe plaintiff and other persons interested as members of his family, he accepted the task of disbursing a sum of £150 for the purposes and on the conditions mentioned in the receipts given by him. For several months prior to the date of the receipt of the £150 he had taken a deep interesb in bhe case, and had become strongly persuaded thab a grievous wrong had been done bo the family of Hockley in respect of certain land situated ab Burwood, and he had also spent much time and some money in investigating the circumstances attending tho alleged sale of the same more than twenty years previously, and he had never aaked for nor received »ny fees for Buch investigations, or even the return of any money paid by him in the course of the same. Ab the time when the money was received by him he fully explained to the plaintiff and the other members of the family bhab he could only act for them through a solicitor, directing him to the besb of his ability as to tho course to be pursued, and his reasons for accepting the responsibility of acting for the family were his strong desire to ccc justice done in the matter and the refusal of bhe member of bhe family to advance the money to do so at all unless it was administered by him (Mr Lusk), and unless he would personally guarantee him againsb further expense. Both before and after the receipt of the money he expended a very large amounb of time and labour upon bhe subjecb matber of bhe suit, bub neibher then nor ab any subsequent time did he appropriabe any parb of bhe money for himself or on ancounb of his own services. The cost of the suit had for a variety of reasons greably exceeded the estimate formed by bim at the, time he gave tho undertaking of bhe 30tb June, 1892, owing to cerbain contingencies arising which ab the time were not contemplated by him. When he nndertook to guarantee bhe solicitor acbing in the suit a further sum of £20 to which he was erftibled, he was, and remained for a considerable time af berwards, in a financial position which would have rendered it easy for bim to meet any extra charge cast upon him in consequence of bhe guarantee, but since bhat time he had suffered serious losses, and had been delayed in the recoipt of money which he regarded as certainly available in case of need, and he had consequently found it impossible to meet bhe claims made upon him on various accounts during bhe lasb three months. He had ab no timo regarded himself as acting as counsel for tho plaintiff or the Hockley family, but rather in bhe capacity of a brusbee for bhe expendibure bo bhe besb advantage of the sum of £150 placed in his hands, and while he had on one or two occasions done counsel's work in connection wibh the suit, Buch work had been bub slight, and had not been made the subjecb of a charge againsb the fund committed to his care. Throughout the whole of the proceedings in the suit he bad been actuated by a Btrong desire bo benefit bhe plaintiffs and to promote the ends of justice, and nothing but bhe position of financial difficulty in which he had temporarily been placed had prevenbed the undertaking given by him on the 30th June being complebely carried oub. Respondent, addressing the Courb, said that that was the affidavit which he had filed in compliance wibh the order of bhe Court calling upon him to answer an affidavit of which it had taken official notice, and to show cause why the extreme penalty which under any possible circumstances the Court could exercise in its presenb jurisdiction should not ba visited upon him. He did not wish to say very much in the matter. Their Honors would see thab the only person who had made any complaint in the matber had been himself, because the affidavit- upon which their Honors bad called" upon him to address tbe Courb was entirely based upon

sbabements made by himself. The circumsbance which he freely admitted and deeply regretted, that tbe family of Hockley had .uifered from the delay in obtaining justice, which he very firmly believed they were entibled to, and the fact that they had sutlered bhis loss, were probably much more regretted by himself than by any other person in the world. Ab the same time, the question he was called upon to answer was as bo how far be had in any way been morally responsible for this unfortunate state of things. Their Honors probably knew without their attention being called to the facb bhab tbe jurisdiction bbey were now exercising was one which, as far as he could learn, was exercised under bwo sets of circumstances. Of course, the circumstances differed in these colonies from those in England, and therefore it would be difficult to find an exact parallel in such a case as this, because in the mother country the Inns of Courb would probably take cognisance of matters which were • here necessarily taken cognisance of by the Full Courb. In a case where a barrisber or solicitor had been guilby of some disgraceful crime he did nob deny thab the Courb was justified in purging the roll of such a person ; but when he read the affidavit served upon him, he was at a loss to understand exactly what their Honors had in their minds as to bhe grave misconduct which he was alleged to have been guilty of in the mabter. That he had been guilty of a grave indiscretion he admitbed in that he allowed his judgmonb bo overcome him in bhe matber, and bo leftd him bo underbake a certain responsibiliby which might have proved exceedingly onerous, and which had actually proved more onerous bhan his shoulders could bear. He did nob mean bo cay thab ho did nob underbako ib wibh his eyes open, bub he thought the money would bo sufficient for the purpose, and he said in his letters thab if the money were not sufficient he agreed to make ib good. The Chief Jusbice : The complaint made by this plaintiff is thab you havo been paid bhe sum of £200 as a solicitor for the purpose of carrying on the suib, and no ono knows—and you have nob yeb told the Courb—what you did wibh ib. Mr Lusk : 1 have told the Courb in the firsb place bhab 1 did nob receive bho money as a solicitor.

The Chief Justice: Of course not, bub you'received bhe money as if you were a solicitor.

Mr Lusk said bhab he did nob say so, bub bhab ho received ib for bhe purpose of aiding bheße people by admini9bering bhe money to bhe besb advanbage in bheir behalf. He admibbed freely bhab he was pracbically in bhe posibion of a brustee of bhab money, bub not bhab he was in any sense undertaking the suit as a solicitor, or that he had any such idea. In the second place he had stated bhab he did nob have £200. Fifby pounds of bhat amount was nob available, excopb bernporarily, and it was only paid to him until Mr Justice Windeyer : Was it available to you ? Thab is bhe question. Mr Lusk : Oh, no, your Honor. The Chief Justice : Whab has become of tbe money—where is it ? Mr Lusk : I could earsily go into that question on affidavit, bub I Bay ib is nob in my hands for bhab purpose. The Chief Justice : You have bo sabisfy bhe Courb whab has become of bhab money. You received £150 in your hands after you received bhe £50. Mr Lusk: Jusb so, for a certain purpose. Tho Chief Justice : Where is the money ? Mr Justico Windeyer: What is the purpose and did you apply ib bo bhab purpose ? You could have pub that in bhe affidavit. Mr Lusk: No; I had no means of knowing what was in Your Honors' minds. The Chief Jusbice: The charge against you is a disbincb ono, and there are two receipts under your own hand—one being for £50 and the other for £150. Mr Lusk : And it is nowhere alleged that I have nob expended bhe money in the way intended.

The Chief Justice: We happen to know the stabo in which bhe euib is. There ia a statement of claim and a replication.

Mr Lusk : No, your Honor. The Chief Jusbice : Have you paid any money bo your solicitor? Mr Lusk ; I have eaid that I have paid Mr Blunden. The Chief Justice : How much ? Mr Lusk : Well, if it is a question of rendering accounts to bhe Courb, and Your Honors bell me bhat you wish accounts bo be rendered, I can do so, bub in my posibion as a barrisber I submit bhab the Courb cannob ask me bo render accounbs. lam aba loss bo know why a barrieter is bo be deprived of the righb bo undertake such oubside duties if he choose to do anybhing of the kind.

The Chief Justice : I do nob think any barrisber would do it and refuse to explain what had become of £200 which has disappeared. Mr Lusk : Wibh greab respect, Ido nob think you have any righb to say it has disappeared. The Chief Justice : We have the righb to aay that on your affidavib. Mr Lusk: In a cerbain sense ib has disappeared. Ido nob cay " Here is bhe The Chief Justice : You offer in your lasb letter to return bhe money.

Mr Lusk said that the momenb he had tbe money he would be only too glad to pay these people the money and enable bhem to carry on their case. That was what he said and inbonded bo say. The lebber was written under circumstances of very greab vexation and annoyance, bub ab bhe Bame time he said without hesitation bhab in bhe whole bhing from firsb bo lasb there was no allegation thab ho had done anything wrong in regard bo bhis money. On the contrary, he claimed bhab, in his judgmenb, he expended bho money in the suib in bhe manner inbended whon he gave the receipt. Mr Justice Windeyer : Bub how ?

Mr Lusk : As I have said already, if the Court asks me to go into the details of this expendibure I decline to do so except on affidavib. I have been called upon to answer an affidavib, and I have done so ?

The Chief Justice : If you ask me I do not think you have done bo. Mr Lusk : If your Honor will point out what has not been answered I shall be happy to give an answer. The Chief Justice : lb would be a very satisfactory thing if you could show thab you handed over the wholo of thia money to tho solicitor.

Mr Lusk : I did nob do so*. Mr Justice Windeyer : Where has bho money gone ? Mr Lusk: Ib has been expended in various ways in the suit. The Chief Jusbice : What money did you pay to the solicitor? Mr Lusk: Well, I should like to be sure of my position in the matter, and 1 should prefer exceedingly that I should answer a question of thab kind by affidavit. Mr Jusbice Windeyer: Would you give us an idea of whab you paid to Blunden ? Mr Lusk : I have said already bhab I bhink ib unfair bo ask mo bo do so except by affidavit. Mr Justice Windeyer: Cannob you tell me within £10?

Mr Lusk : I think I could, bub I prefer nob bo do ib at all excepb by affidavib. 1 prefer to swear bo everything which I sbate bo the Courb, because the manner in which I have been broughb before bhe Court requires me to be moßb careful how I come before bhe Courb.

The Chief Ju3bice :No doubb you have pub yourself in/ a position which requires you bo be very/careful indeed. Mr Lusk saj?d he bhoughb bhe Court had placed him ink the position by arraigning him, as ib werlip. on a charge of grossly improper condact- That was bhe position

the Court bad pub him in, without communicating with him or giving him an opporbuniby of explaining the mabter. The Chief Justice : Yes; an opportunity was given to you before you came before this Courb. , Mr Lusk said he was aware of that, and he was glad His Honor had mentioned it, because thab was one reason why he felb exceedingly aggrieved ab bhe manner in which he had been personally treabed in bhe mabber. He received a letter from the Associate of Mr Jusbice Owen, dabed sth March, to this effecb: "I am directed by Mr Justice Owen bo forward you enclosed copy of an affidavib read by him this afternoon in this mabter, and bo request thab you will explain the matter to him to-morrow in Courb ab 11 o'clock." Thab letter and affidavib were posbed to him at 6.30 p.m. on the 6th March, hours after the time at which he was supposed to appear before Mr Jusbice Owen to explain fche matter. Ib did appear to him that after so many years of, he believed, a fairly honourable record as a man and a member of the legal profession, he should be dragged here as bhough we were a criminal, without the ordinary opporbunity which would bo given in obher cases of making an explanation. If bhe Court wanted an accounb of the manner in which he, as brusbee, expended bhe money, he would see whab could be done, bub at bhe presenb momenb ib would be a mistake on his parb bo enter inbo bhese debails, and he bhought it was scarcely fair that their Honors should ask for it. He mighb sbabe bhat he did not use the money except for the purposes of bhe plaintiffs ; bub he should nob be asked ab presenb, when he was bo a cerbain extent in a abate of excibemenb, bo furnish an accounb. After further discussion the Courb directed respondent.to file bhe affidavib with the information required by Thursday nexb, and bhe Chief Jusbice intimabed bhab under bhe circumstances bhe sbabemenb could nob be made too full.