SUPREME COURT.

Otago Daily Times, Issue 13210, 17 February 1905, Page 7

SUPREME COURT.

DIVORCE AND MATRIMONIAL CAUSE Thursday, Pebruakv 10. (Before his Honor Mr Juslico Williams.) DOWDALL V. DOWDALL. Husband's petition for dissolution of mar age, on the ground of desertion. Air I\ J. Stilling appeared for the petition! William DoWaall, ol Berwick, sheep-fkruii Thero was no appearance of the respondoi Ellen Dowdull (lornierly JFlylm). Mr Stilling said that the parties we married at l'ort Chalmers in 1803. The i Bpondent was formerly a factory operatic Tho newly-married couple went north for ■week, durmsr which time the bride kept recu ling to tho fact liiat the bridegroom ought change the prosaio life of sheep-farmer f ' that of on hotelkceper. When they can hack to Duuodin they went to the petitions homo at Berwick, but dirootly the wife g thero she refused to stop, on the ground th she did not like tiio place—in fact, she lc the next morning. The petitioner and h brother bolh tried herd to induce her to sto but without effect. She was accompanied ( this occasion by her sister. About a wei after she had left the. petitioner got a lett from her asking that her boxes Ebould 1 sent. The petitioner sent the boxes, and wro to her saying that as she had gone,,am against his wishes ho would not give her ai more money. This brought her back to Be wick, when she was accompanied by the pel turner's sister. The marriage had taken pliu from the houso of tho petitioner's siste and it might be presumed the sisti was naturally anxious to see" a moi happy result from the marriage of a'fe weeks before. The wife, however, was quil obdurate, and after a few days she left. I the hope of getting her to change her inin the petitioner went to Port Chalmers, but si: point-blank refused to go back. His Honor: Where is she now? Mr Stilling said she seemed lo be movin about. She was in Timani once, and sli was in Duncdin when s-be was served. Froi inquiries at different times it would appea that the'respondent was quite earnest in lit request that they should go in for an hotel, a during almost the wfiole time she had bee away—some seven years—she had been earnin her living as a barmaid at different hotels i Dunedin, Oamaru, and Timaru. Evidence was given by the pelitioner an Robert Bain (private detective). In answer to his Honor, {he Kegistra stated that no appearance of tho responden had been entered. ~ Decree nisi granted, to become absolute afte three months. IN CIUMBERS. (Before his Honor Mr Justice Williams.) MX V. EQKRETT. Motion for leave to issue a writ of attach ment against George R. Waddel, of the Bluff merchant, for refusing to produce his book: before a commission which sat recently at tin Bluff to take evidence in the suit brongh against John Robert Borrett, fish importer a Melbourne, by tho Commonwealth in connec lion with cortain alleged short-weight return! of frozen fish made to tho Customs authoritiei at Melbourne, the said fish having been pur chased by Borrett from Waddel. Mr Hosking, instructed by Mr J. F. M Praser, appeared for tho Crown; and Mi Woodhouse, instuctcd by Mr T. M. Mao appeared for the defendant. _ In this previously-heard case his Honor gav; judgment as follows:— An ex parte order was made by me, undei section 1 of the Imperial Act 22 Vict., C. 20, for the attendance of ouo Waddel as a witness beforo a commission sitting at the Bluff, appointed by the High Court of Australia, to lake evidence in a case of Rex v. Borrett, depending in that court. The order also directed the production by Waddel before the commission of " nil books of account and documents containing any entries referring to the defendant or to any shipments of fish made to tho defendant during the years 1901, 1902, 1903." The orcter was made on tho motion of counsel for the Crown,, the plaintiff in the action. Waddel attended and gave evidence before the commission, but refused (o produce tho ledger of tho firm of which he was a member, which contained entries relating to these matters. The Crown, tho plaintiff in the action in the High Court, now moves for an attachment against Waddel. An order for production under section 1 of 22 Vict., C. 20, is equivalent to a subpteua duces ' tecum! Generally a witness called upon to produce documents under a snbpcciia cannot refuse io producothein on tho ground that they are immaterial to the issue (Doe. d Butt v. Kelly, 4 Dov/ling's P.C. 273). The person summoned, although not a party to tie action, is bound io attend as a witness and bring tho paper called for in obedience ■ .to the writ. Whether ho would be bound to submit it, when produced, to examination is a question altogether different (The Queen v; Greenaway, The Queen v. Carey, 7 Q. 8., 135). The documents must bo in court for production, and then it is open to the judge to say that tho witness is not bound to produce for examination the documents which he has there (Per North J. in ic Smith, Williams v. Frere, 1891, 1 Ch., 323). The documents, therefore, must bo in court to abicfe tho decision of the presiding judge as to whether they aro to bo submitted to examination or not, and tho judge only has a right to inspect them in order to enable him to decido whether they aro to be submitted to examination. Until the judgo has decided that they must be so submitted neither the parties nor their counsel have any right to inspect them. But in the present case the commissioners are not in the position of a judge. They have no jurisdiction to decidfc whether a witness before thein who brings a document with him in obedience to an order and who objects to submit it to examination is to be compelled to submit it. If a, person not a party to the action served with an order for the production of documents were bound to have the documents with him and allow them to be inspected by the commissioners and t'ho parties, although he objected, and whether or no the documents were admissiblo in evidence, the result would he that a party to the action would by virtue of tho order bo entited to discovery against a person not a party. Tho section of the act which empowers this court to make an order only empowers it to make an order which is equivalent tea subpoena duces tecum, which gives no right to discovery. (See Elder v. Carter, 25 Q.8.D., 191; in ro Smith, Williams v. Prcrc, 1891, 1 Ch., 323; Burchard v. Jiacfarlane, 1891, 2 Q. 8., 211.) If Waddel, instead of refusing, as he has done, to bring his firm's ledger before the commissioners at all, had brought it before them but had refusedl to let them look at it, tho plaintiff would have been in no better position. The mere-bringing the ledger with him when he came before the commissioners would have been an idle' ceremony. If in fact the entries in the ledger arc inadmissible in evidence in (lie case, then, as the commissioners have no authority to decide as to their admissibility, Waddel would have been justified .in refusing to allow tho ledger to be inspected. Section iof 22 Vict., C. 20, expressly provides that no person shall bo compelled to produce under such order any writing or other document that he would not be compellable to produce at the trial. If this court is moved under section 1 of 22 Viet.,-C. 20, to punish Wadde] for disobedienco of the order, it must be satisfied that the entries in the ledger are relevant to the inquiry and ought fo havo been disclosed. If they were not, then Waddel has not been contumacious in not disclosing them. The ledger itself was not produced for my inspection, nor was it suggested that it should be produced. It, was admitted, however, that it contained entries relating to sales of fish made by the firm at tho Bluff of which Waddel was a member to Borrett, the defendant in the action, who resided in Melbourne. There was no suggestion that Waddel's firm were Borretl's agents, or that there was any other relation between them than that of seller of the fish on the one hand and purchaser on the other, the seller being in New Zealand and the purchaser in Melbourne. In such circumstances it is impossible to suggest that these entries are admissible in evidence against the defendant Borrett, Tho proposal made by counsel for the plaintiff before the commissioners that a statement should be prepared by an accountant from the books was quite unjustifiable. But it is said that although theso entries in the ledger are not admissible in evidence yet that they could be properly looked at by AVaddel fo refresh his memory, and that he refused fo look at them. It was relevant to the inquiry to show the exact weight of each shipment of fish and the' sum paid for it, and the reclamations allowed to the defendant, Borrett, in respect of each ihinmcnt. But though Waddel did not brin* tho ledger with him b?iore the commissioners', \"I 2,. re 1" e3t of counsel, looked at it outside. The result of his answers as to the entries is, I think, that they did not refresh Ins memory, but that if they were analysed and calculations made, tho particulars asked for by the plaintiff's counsel might be obtainable. That, however, would be making the entries evidence, and not refreshing Waddel's memory. If AVaddel had hadi the ledger with hira the plaintiff's counsel would have had no right to inspect it if Waddel objected, as tho entries in it were not,evidence. He rni°ht have asked Waddel to look at it to ascertain if by any entry in it he could refresh his memory. If Waddel said.fhat he could not, the Plaintiff, whose witness he was. must take his answer. The plaintiffs counsel would have w i r ! g . lo iuenec t *he ledger and "examine Waddel upon the entries. If Waddel could not refresh his memory it was immaterial u ethe r, he looM at the ledger in the room w-hero the commissioners were or in his.own office, as it was not.for the commissioners to decide whether he ought to be compelled fo look at it or .be allowed to look at it. Of

course if Waddel had said his memory w refreshed by any partioulnr entry (he ledg would hove had to.be produced, and both ti plaintiff's counsel and the opposite couns would have been entitled to inspect it. Ti real complaint' of the plaintiff's counsel the present case is that Waddel will n let him inspect the ledger to ascertain t! transact ions recorded there, and that he ca liot, therefore, bring forward the record the transactions as evidence against Bone of what the. transactions Were. But, as Iha slid, the order gave. Mo right to discover and the record was not evidence of .tl transactions. Further, I think it is not inai out that Waddel would have had any rigl to look at the entries in tile ledger. 'iVadd himself copied the entries ill tile ledger fro, a rough day book. This day book is Tost, bi Waddel swears that he copied the entrii correctly. The rough day b'cbk was post: up by Waddel from small books kept, not 1 Waddel, but by Gilrov, his partner. The; bocks are also lost or destroyed. Now, tl: facts as to which Waddel was asked to spea were the facts recorded in the entries mac by Gilroy. It does not appear that wh= these facia occurred or that when Gilrc entered them Waddel was aware of then nor does it appear how long alter the occurred it was before Gilroy entered lliei in the small books, nor how long it was nfte Gilroy so entered (Iran that Waddel poste the entries in the rough day book. It is nc suggested that Waddel ill any way supervise Gilroy when the latter made the entries i the small books. The circumstances are alt< gether different from those in Burton \ Plmnmer (2 A and 33, 341), cited by counse for the pjaiiitiff. It iB true that Wa'ddei when nsked whether he could smr that th entries from which he copied were correct i; every detail, answered that perhaps they wer not ill all cases, but he generally satisliei himself that they were right. That, howcvei carries the matter no further. It mere!; means that when Waddel posted (lie entlie: made by Gilroy from the small books inli the rough day 'book he generally made in quiries which satisfied him that the entriei were correct. But as it does not apneor tlia he knew of the happening of the events a the time they occurred he could not havi remembered their occurrence nor have testi Bed that they did occur. If he never had an; memory of their occurrence it is obvious thn: he could not by looking at any document whatever refresh a memory which nevei ejflsied. All that he could have 'done wa; to satisfy himself hv subsequent inquiry thai the events recorded had actually occurred. He would inquire either from other persons or by investigation of the books and documents of the firm. He could not give hearsay evidence of what he heard from other persons, nor could he give the result of his investigations of documents, which were not evidence against the defendant. If it is sought to punish a person for disobedience of an order of the court, in refusing to exhibit- documents before commissioner!) appointed by a court out of the jurisdiction, it must, I think, be made to appear fhat the documents ought to have been exhibited as being relevant, to the inquiry. That has not been made out here. The motion for attachment will therefore bo dismissed. With respect to the cross summons, the order for production has the same meaning as the somewhat similar order in In re Smith, Williams v. Frere (1891,1 Cli, il-23). and has, as the order in that case was held to have, the effect of a writ of subpoena duces tecum only. It does not purport to give the right to discovery which it. was held that the orders in Elder v. Carter (25, Q.8.D., 191) and Burehcrd v. Macfarlano (IS9I, 2 V.8..2H) purported to give. The only valid objection to it is that it did not specify more particularly the documents asked for. and ro put upon Waddel, who was not a. party to the iction, the trouble and inconvenience of himself searching for documents. No doubt, as vas said by Wood, V.C., in Leo v. Angus (.15 Ei.J., Cli, 370), a witness ought not to ho impelled to answer such a general subicena, and if the objection had been taken at in earlier stage the order might have been let aside or amended. But 110 objection was aken to the order until after proceedings liad jeen taken for disobedience of it, and after t lwd been made clear that the only book iVnddel had, and the only book the plaintiff ranted, was the lcd-rer in question. It being hereforc now admitted- on all hands that tho edger is the only book sought for it is sadly an if tho order had neen limited to ho production of that particular book. Paddel has not suffered, nor can he suffer, .v reason of the order being originally too ride. I think, therefore, there is no reason ow to interfere with the order, and that the urnmous to set it aside must be dismissed. I Int. as was said bjl North J. iu In Te Smith, I'illiams v. Frere, it is open to the person nmmoned to make any legitimate objection 3 produce the documents mentioned in the rder. In the present case the validity of lis objection must bo determined by the enly ribunnl which at this stage has jurisdiction > determine it—namely, by this court, and I has been determined.

Costs (£3 3s) were allowed.