THE LAIRA LITIGATION.

Otago Daily Times, Issue 11191, 13 August 1898, Page 2

THE LAIRA LITIGATION.

■ In tho Supreme. Court, before Mr Justic* | Pennefather, t the case of Paterson v. tlio j Owners of the Steamship Wakatipu cropped ■j up on an application, qij. behalf of the defenI dants.for an.order for an. examination, prioe i to the, trial, of certain .witnesses, on commission before the registrar. Mr Holmes, appeared pn behalf of the defendant company hi.'support of the applica- . tion, and Mr Hosking ahd'Mr Solomon ou behalf of the plaintiff. ' .Mr Solomon said he'had a preliminary objection to take which was not a technical objection. He submitted that no.summons of ■ , that sort could be entertained by the court j except upon evidence. t It was not a matter .' ;: of right. ... ... !' His Honor: That struck me on looking at -, the motion.' ' i , ii- ; i Mr Holmes said that if his Honor took that,' ■ view he would place an'affidavit pxi the file,' , for Tuesday. Mr Solomon submitted that that' was not a, proper way of dealing with the matter. This motion had been made altogether on a misapprehension. The granting by the court of such an application., was assumed in the first instance to be a matter of right. Mr Holmes: I make hp such assumption. Mr Solomon took jt that the filing of a notice paper, unsupported by evidence, must proceed on that supposition! Ho was pre-, pared to argue that the court "would rcquirn " ihe very strongest evidence before it granted such- an application as tl'is. ond . tnat it would certainly not gTant it at all in the pre--sent case. He <submitted, that there was no authority for adjourning.this application, ancl ; that the proper method \^as that it should be dismissed. "If Mr Holmes then wished to pro- ; ceed on evidence it should be laid before tho .: court in the usual way. ( ! Mr: Holmes quoted the Admiralty rules, and said it was open for tlie judg©; to order tliat a "motion Should bd heard on the state-1--.' ment-'or counsel br of-the solicitor, appearing. : ■ ' or by affidavit, or by .the- oral examination of v .. * the, parties:. In this application; the defendant- , :'l company; were asking what thoy would, rather,, do without,, and he submitted that it was'/ quite competent to" deal'with the motion On the statement of counsel or of the solicitor appearing at'the hearing. His Honor observed that the Admiralty " rules merely stated that the; evidence in eerI tain cases should be by affidavit, and in certain cases should be' oral,-;, but i they did not empower the judge'to grant any- application ' i without evidence. ;■-,'■' . , -.. -.!•■ Mr Holmes said it would be,.'open for him. |i to tender himself as a .Witness in support, of ,the application. , Mr, Hosking: You must .first.; give notice of., intention. ~: ~'" , . .'.'Mr Solomon said there was'a definite, dis-, ■ tinct authority that affidavits of solicitors as ' ; to their instructions' would, not be accepted. /i His Honor said he wais afraid that ho must . hold that certainly the proper course ona .'-,, notice paper of this kind was ,by affidavit, - ancl that Mr Holmes must come to .the court ~ with.'an affidavit showing that these witnesses", could not attend, and showing whyUt was ad- -. visable that they should.>be examined by com-' mission.. It was certainly unusual that an application of any sort should be unsupported by affidavit; and this application was contested,"ahd likely to beVcontested, and it was :, a matter in which it. ought to be made quite .clear to the court that it':was tlie best .course., that these witnesses should.be examined priorto the-trial because, prima (facie, that was not the best course. ■ Mr Holmes said there wa? a largo ground "in the case .to cover, by affidavit,', and ifc >; would.be more.convenient to cover it by oral /-evidence.,, ...' .'"; " ,-JJ.'. ~.J A'-. "':'■ _. -,'• Mr. .Solomon said that Mr Holmes-was now '-' making' a." different \ appljb&tidn frdm- that _. which was now before the court.. Mr' Holmes now -applied to the court -tp -the. "method of •'evidende'-to'f'.bb -given beforo.-the,.- r----'-court, -and ai' to what that -might, bo .the plaintiff, had-a right tp consider the. position. His 'Honor; would.understand that s this was"' really.i-.a most" important, question. ;,. It "was i. very -difficult, indeed, 'to overestimate the im- . ;pOrtanbe,of a-step of this* kind, and, he sub- : mitteditiiat.if Mr Holmes wanted to follow•his application;, the proper thing was "<to. dis- . ' pose of the motion before the court now, and " let him take the proper Steps and give the opposite sido notice of what he was^ going to. : do, so that they could consider their position. , •If his Honor made an order of any sort ijow '■ it'would be contrary to the intention of the . 'rules. Every motion must be on. notico of ; ..2V hours, and they had neyer^ had any notico ofthe present application. Thero ifwhs no valid reason why the ordinary rzdd' [ of tho.court should be departed from, and he' 'submitted that the proper course was to. dismiss the motion. It would be an injusticeto " those opposed to the motion to do otherwise.;.; What, the court was asked to do was to grant ~'-- an indulgence. •. Mr Holme 3 said he did not ask for any indulgence. ' ,-.. His Honor observed that it was a mero',-'-.- ---) waste of time and money that Mr' Holmes" .should be asked to apply,, in the first'.in-. ; Stance in Chambers, for leave to bring for-_ ' ward-oral evidence on motion, and then havo •'•• ito apply over again on motion. '■-~' ' Mr Hosking said it was a novelty to have' oral evidence on motion without notice tothe other side. . Mr Holmes wished to call a;; number of witnesses to prove some_ facts of 7: which the opposite side had no notice. The - ! other side could not go and get evidenco,-: ''■ while they were in court if- leave were, -granted to bring, forward oral evidence. His Honor said in almost every, case thei... ;',mbst convenient 'courso -of action was that' ■•■ evidence should be.by affidavit. In .'some cases.' , the rule was absolute," but in Admiralty cases' : it wasi,within, the. discretion of the judge -to ~ fallow, oral'evidence on motion. "' •.' ' ' I Mr Hosking ppinted i out that this; was: ith I interiocutbry proceeding for the purpose of t\ enabling evidence to be taken, and he ven--. tured to say that'the court would not waste its time in taking down the evidence of witI nesses on an application of this kind, where ! there was no opportunity ■to the other side. ; to meet that evidence, because they did not '■ ! know what the evidence might be. | His Honor said he was afraid the only way ! out. of the difficulty ivas that evidence in tho 'caso should be by affidavit. "The other way. might be cheaper, and he should be very glad if the parties consented to the other course, but they had not consented, and he did not seei' his way to make ar^ order in face of the hostility of the other side. Mr Holmes: We will renew the motion on Tuesday on affidavit. Mr Hosking submitted that the motion i should be dismissed With costs. Mr Holmes thought costs should hot ba allowed. His Honor said the application was not re- ■ fused on the merits, only on the ground of tliere beipg 110 evidenco. Ko was, however, afraid that it must be dismissed with costs; , costs, one sovereign.