THE COURT OF APPEAL.

Dominion, Volume 5, Issue 1272, 30 October 1911, Page 3

THE COURT OF APPEAL.

J. R. LUNDON'S CASE. SUSPENDED FOR TWELVE MONTHS. "HIS DESIGN WAS FY DEVIOUS METHODS TO OBTAIN CONTROL OF A SENSATIONAL CRIMINAL CASE." On Saturday morning the Court of Appeal delivered reserved judgment on the motion by tho Auckland Law Society, under the Law Practitioners Act, 1908, calling on John Raphael Lumlon to show cause why he should not be struck off the barristers' and solicitors' rolls on tlie ground that he had been guilty of professional misconduct. At the hearing tho bench was occupied by SiT Joshua Williams, Mr. Justice Denniston, Mr. Justice Edwards, Mr. Justice Chapman, and Mr. Justice Sim. Mr. T. Cotter appeared for the Auckland LawSociety, and Mr. C. B. Morison for Lundon. In delivering the judgment of the Court, Sir Joshua Williams said:— The enso has been fully and minutely argued by Mr. Cotter for the Auckland District Law Society, mid by Mr. Morison for Mr. Lumlon. 31r. Cotter contends that the District Law Society has established against j.undon that he has been guilty of acts which amount to serious professional misconduct, and which bring him within .the disciplinary jurisdiction exercised by this Court over the officers of the Supreme Court. On behalf of Lundon, Mr. Morison, who has argued his client's case with great earnestness, and has nut before the Court every ground which ft is possible to suggest can induce tile Court to take a lenient view of his client's conduct, contends that though that conduct was, as ho admits, a gross breach of professional etiquette. it did not involve the commission of any offence known to the law, and that it could only be met by the reprobation of the reputable members of (he 1-gal profession, expressed by a condemnatory resolution of the District Taw Society. It is necessary closely to examine the evidence before tho Court in order to determine which of the views urged by counsel is correct.

After a very lengthy review of the whole of the affidavits placed before the Court,, his Honour continued: "Looking now at the whole of the evidence, as we necessarily must, and finding that at every stage of the matter the acts of the parties are consistent with ITadden's evidence. and inconsistent with Lnndon's explanation, we are driven to tlie conclusion that Hadden's evidence from first to last is, in substance, true. ... At almost every stage Hadden's evidence is corroborated by the evidence of Hall Skelton. It would bo impossible to disbelieve the evidence of these two witnesses, without coming to tho conclusion that thero was a concerted conspiracy between them to ruin Lundon by false charges; and that that conspiracy was so well dovised that it has escaped detection when the matter was inquired into by the District Law Society first, and subsequently by its solicitor. It is extremely improbable that any solicitor would bo party to such a conspiracy. On the contrary, upon the only occasion as to which we have the evidence of a nerson who has not been an actor in the proceedings, wo find that tiie evidence Iwth of Hadden an! Hall Skelton is eorrolxiratcd by Hendry, whose truthfulness it is impossible to doubt. Most important of all, that evidence is corroborated by tho actions of the parties.

The facts, as we find them, establish that Lundon, in obtaining from Hadden an order for payment of money, van guilty of a false pretence which brought him within the criminal law. We aro satisfied, however, that his primary design in making that false pretence was not to obtain money from Hadden. We think that it is plain that that design was, by devious methods, to obtain the control of a sensational criminal case, and that tho obtaining of the money was an incident which in the course of his ordinary practice, as he has himself deposed, naturally followed upon tho temporary success of that design. Therefore, we do not think that it is nccesrary that a criminal prosecution should follow. The offender will bo sufficiently punished by the result of tlieso proceedings. . . . His counsel asked the Court to believe that ho obtained payment of this small sum 011 tho joint account of himself and of Hall Skelton. This is contrary to his own evidence. Ho says: "Whilst writing, I asked Hadden what money he had when arrested. Ho replied: .£3 18s. Gd. I asked how ho came by it, and he said it was money ho had earned as wages. I said it was my practice to take an order on moneys in tho hands of the police towards my fees, and asked if he had any objection giving me an order. He had none, and I wroto out an order." No doubt when so acting Lundon intended to give Hadden good value for his money, and this distinguishes the case from an ordinary case of falso pretences. There is, however, no doubt that this was an aggravated caso of professional misconduct, apart from its criminal character. That niisconduct was accentuated by his retention of tho money after 110 knew ho would havo 110 opportunity to -give valuo for it. His initial misconduct in obtaining a retainer from Hadden by falso pretences is further accentuated by tho repetition of the samo malpractice on July 13 at tho gaol. We regret also that we are compelled to come to tho conclusion that Lundon's defence in these proceedings is founded upon statements which are wilfully false. "Treating this as a case of professional misconduct, tho loast penalty which the duty of tho Court to the public allows it to impose is that Lundon be suspended from practice as a barrister and also as a solicitor for tho period of twelve calendar months from the expiration of fourteen days from tho date of this order. Wo allow that period to him in order that ho may have a reasonable time in which to close his office business, but he must not hereafter appear in any C«urt until the period of his susjieusion has expired. There must also be an order that 110 shall pay to the Auckland District Law Society for the costs of these proceedings tho sum of UNDER WHAT LAW? INTERESTING POINT DECIDED. Reserved judgment was also delivered by the Court of Appeal iu the case of J. G. A. Baird and others v. Githa Euid Fergusson and others. The case first came before Mr. Justice Edwards in the Supreme Court, Auckland,, last August, and, by his direction, had been moved into the Court of Appeal. 011 the Bench at the hearing were Sir Joshua Williams, Mr. Justico Edwards, and Mr. Justice Chapman. Tho plaintiffs in the action were John George Alexander Baird, gentleman, of Muirkirk, Scotland; George James Ferguson Buchanan, gentleman, of Auckentorlie, Bowling, Scotland; and Georgo Bectham, of South Keiiiington, J/ondon. Tho defendants aro: Githa Enid Fergusson, of Auckland, wifo of James Andrew Fergusson, a captain in H.M. Navy; Thomas Coldham Williams, gentleman, of Auckland; and Captain Fcrgusfon. Mr. - H. D. Bell, K.C., with him .Mr. H. P. Richmond, appeared for tho plaintiffs, and Jlr. J. R. Reed, of Auckland, with him Dr. Bamford, appeared for the defendants.

The matter before tlie Court was an application in regard to tho transfer of certain lands in tho Wairarapa, and as to how they are affected by a marriage settlement entered into by Githa Enid Fergusson and her husband in Scotland in November, 1901, beforo tho former was 21 years of ago.

The legal argument iu tho case rested on two main lines:—Firstly, on tlio assumption that Jlrs. Fergusson was affccted (in regard lo the repudiation of allirnialion of the settlement) by her Scotch domicile; secondly, 011 tho assumption that, because the settlement affected real estate iu New Zealand (which was acquired by Jlrs. Fergusson after the settlement was made) therefore the question, as to her capacity to affirm or otherwise, was governed not by the law of Scotland, but by tho law of Now Zealand.

If the former assumption were corrcct, it was submitted that it would bo necessary for tho Court of Appeal to refer to tho Scotch Court, tho question as to what was esactly Mrs. Fergusson's ctuacity (as a resident o£ Scotland) to af-

firm or disaffirm the contract entered into by her when an infant.

If, on the other hand, the second assumption was held to bo corrcct, tho question for Iho four: to decide was whether she. had disaffirmed her settlement within reasonablo time after her coming of age.

Mr. Justice Edwards lead a lengthy judgment of tho Court, holding that tho question as to Mrs. Ferguison's capacity to aifinn was governed by the law of New Zealand, in regard to the sccond question, his Honour said: "There can be no doubt that the actual fact is that Mr.-. Fergusson repudiated the covenant at tlie earliest time that it was possible for her to do so. It appears, therefore, impossible to sav that she has not repudiated it within a reasonable time. Judgment must, therefore, bo for tho defendants in the action." The question of costs was referred to the Supreme Court. Mr. Bell asked leave to appeal to the Frivy Council, and applied for _ tho motion to bo adjourned until next sittings. Tho neccsary leave was granted.