COURT OF APPEAL

Dominion, Volume 11, Issue 19, 17 October 1917, Page 9

COURT OF APPEAL

J. R. LUNDON'S CASE

APPLICATION TO STRIKE OFF THE ROLLS

The Court, of Appeal yesterday commenced the hearing of nu application by the New Zealand Law Society for <1 rule absolute to strike off the rolis of barristers and solicitors John Raphael Lundon, of Auckland. The Chief Justice, Sir Bobert Stout, presided, and with him on the bench were Mr. Justice Detimston,

Mr. justice Cooper, Mr. Justice 'Chapman, and Mr. Justice Hosting, The Law Society alleged that Lundon had been guilty of professional misconduct, in that lie mado a gross overcharge of .£IOO against a client, Joseph Fletcher, of Auckland, labourer, for his services isi obtaining prepaymont from the NationaL Bank of New Zealand at Newton a 6um of .£SOO, lodged by Fletcher on fixed deposit; and in that ho persistently failed to account to Fletcher and his solicitors for moneys held by him in trust on behalf of Fletcher, "from November, 1915, to March K, 19]6, though repeatedly renuested in writing to do so. Mr. H. F. Von Kaast appeared for tho Law Society, and Dr. Fitchett and Mr. A. W. Blair for Lundon.

Mr. Von Haaat stated that Lundon had arranged to 6ubmit to cross-examination. Lundon, under cross-examination, said that he had been asked by the Law Society for a full statement of the work

tHafc had been done, all the attendances and everything else in connection with the Fletcher, affair. Ho had never furnished tho statement, becausc while he was engaged in preparing it he had a breakdown. Ho sjnt in an explanation to the society iu October, 1916. AVitness accepted tho .£IOO fee from Fletcher on the understanding; that he would act for Fletcher, without further payment, while he held any of tho ,£'loo which 110 was ob-

t lining for Fletcher from tho bank. Fletcher had himself made various attempts to get tho money, and so had witness's clerk mado an attempt, but both men had failed. Fletcher and witness were both convinced that they would have to go to law over tho matter. Witness on his first visit to tho bank met. with a very cool reception, and was told that tho bank wanted to have nothing to do with Fletcher, and that witness 9 clerk had got tho bank's anewor. Tho manager of the bank was at that timo aware that tho father-in-law of Flotcher was likely to bring an action against the latter for slander.

Askedby a membor of tho Bench why, on, obtaining the monoy from the bank, ho did not make out a statement, charging. Fletcher a proper feo, and crediting him with tho balanco, witness replied: "I told him that in Tiew ol' tho fact

that ho iiatl paid iuo- iIOO I would attend to anything connected with l.hat money while any porlion of it remained

in my control, and I have carricd out that bargain." In tho'courso of further evidence, witness said that if he had had to go to tho Supreme Court to obtain tho money, ho could not have expected a penny moro than tho 4:100, even if the action had cost moro. Witness worked for Fletcher for ten solid months, and never charged him ono dollar. Witness took the money from Fletcher in tho form of a loan to prevent its being dissipated by Fletcher. Mr. Von Haast: Wh.y did yon take lip the attitude that you wero not bound to account for tho money P Lundon: Because tho money was lent to me, and when tho demands wero made Fletclicr was away in Roto Ron. Islajid. Were you not trusteo for'the money?— "That is a question [or a lawyer. J am only an advocate."

But you did, as a matter of fact, though this -was a loan, pay out' a considerable sum of money?—" Because .1 had told him that if ho wanted any money for a. legitimate purpose, I would not mind advancing il. I paid 6ome of his expenses -when ho would not do it himself."

Examined by Dr. Fitchc'.t. witness said that Fletcher averred to- him that tho money was not intended, to bo on fixed deposit, aJid was very positivo about il. Witness thought it would probably bo necessary to sue the bank, and if the matter had uono to the Supreme Court witness would have hud to brief counsel. Fletcher had paid witness a X's2 cheque, which was afterwards dishonoured, as a retainer fee for tho slander action which ■was expected to bo brought by tho father-in-law. ■ 111 spite of the fact that the cheque was dishonoured, witness was prepared to' carry on tho dcfcnco in cont sideration of tho ,£IOO Fletcher had given him. Witness had treated tho <£100 as covering also his defence of Fletcher on a chargo of attempting to shoot his father-in-law.

Mr. justice Donnislon observed that J250 appeared to be a large retaining feo for an action which was still in the air, arid which actually was never brought. Dr. Fitchult: Undoubtedly Your Honour is right, but if tho action had been brought, and to all appearances it was goiDg to be, Lundon was going to carry it through. . I respectfully suggest that it was a I'ee to cover the whole cost of tho action. • Proceeding, witness said that when ail action agoinst h'im for the recovery or money was pending, tho solicitors for tho l>laintift" filed a motion, which was heard beforo Mr. Juslico Cooper, for an order for tho taking of accounts. H.is Honour dismissed the motion, and expressed tho opinion that, tho notion, appeared to be ono for settlement between tho parties. Witness's solicitor.promptly wrote to the other side, drawing attention to tho remark, and stating that witness was qnito prepared to- settle the matter, and to refer any dispute about the JCIOO to tho taxing master, the Registrar, _ or any practitioner in Auckland. Witness did not want the money which ho obtained from tho bank for any purposes of his own. He only purposed to protect Fletcher from being robbed by .certain. persons who w<re notorious in the Police Court at Auckland. Witness placed the money in his trust account. Mr. Von Haast proceeded to address tho Court. He said that in an explanation given to the Law Society, Lundon said that at the time the bargain w-as made with Fletcher, Fletcher admitted that the money was 011 fixed deposit, and yet Lundon told tho Court that he charged the tEIOO because he thought an action would be necessary, and ho would have to fee counsel.

Mr. Justico Hosting: Does not tlic statement moan that it was on the ground that it was a fixed deposit that the tank, rightly or wrongly, held the money? Mr. Blair: It means (hat Fletcher admitted the fact that the bank was holding the money as on fixed deposit, and the only tliinfr to do- was to upset the deposit to get it back. The heaving was not concluded at 4.30, *vhen the Court adjourned till to-day.

SAWMILL ACCIDENT CASE

EMPLOYERS' APPEAL. The Court concluded the hearing of argument upon the appeal of Booth and Co., Ltd., sawmillers, against a decision given' by Mr. Justice Hosking in favour of William Bowley, sawmill' hand. In the Supreme Court the respondent Bowley claimed damages from Booth and Co. for injuries which he had received in an accidental the company's b'ush tramway. Tho jury returned a verdict for .£sllO damages, but. tho defendant moved for judgment or a new trial. Mr. Justice Hosking dismissed the motion, awl against this decision, Booth jind Co. appealed. Judgment was reserved.