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June 21, 1909.]
ALLEGATIONS OF MISCONDUCT AGAINST A SOLICITOR.
The Full Court (consisting of Sir Francis Piggott, Chief Justice and Mr. Justice Gompertz, Puisne Judge) were occupied on the 14th, 15th, 16th and 17th inst. hearing an appli- cation calling upon C. F. Dixon, a solicitor of the Supreme Court, to show cause why he should not be removed and struck off the roll of solicitors.
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CHINA OVERLAND TÉADÉ REPORT.
be listened to.
517
The Chief Justice-In the first two cases you pointed out that the proceed- ings were disciplinary, not criminal. You now point out that the evidence in two cases might not be the same, and the suggestion occurs to one that evidence would be admissible in disciplinary proceedings which would not be admissible in criminal proceedings.
Mr. Potter-I was going to deal with that point.
The Chief Justice-Unless you have very strong authorities, I don't think that that will hold water. The admission of books is allowed in certain circumstances under the Evidence much whether disciplinary proceedings are civil Ordinance in civil proceedings. I doubt very preceedings for the purpose of that Ordinance.
Mr. Potter-I think it is evident from these procedure. If this is not a jurisdiction in a two cases that the procedure is purely a civil criminal case or matter, evidence cannot be of a criminal character, and the rules of evidence is simply a case where you are the master and cannot be such as apply in a criminal court. It
absolutely the same as in the conducting of a he is a servant. The whole procedure is civil case.
The Chief Justice-The argument scems to preting the Evidence which begins" In all Civil me to be still as strong. Supposing, in inter- proceedings", the Court said, “this is not a civil proceeding, it is a disciplinary proceeding"?
Mr. Potter-My answer would be, this is not what it is? a criminal proceeding, and if not criminal,
Society had been substituted for the Master in sending the defendant to a criminal jury conld chambers; that the Court could direct the Committee of the Incorporated Law Society in the first instance, and then the committee reported to the High Court, and the High Court acted accordingly. This was all laid down in sections 12 and 13 of the Act. His next step was to prove to the Court that their jurisdiction in a case of this character was a disciplinary jurisdiction, and not criminal. In other words, a solicitor being an officer of the Mr. E. Potter, instructed by Mr. C. D.
Court, the duty of the Court was to decide; Wilkinson (of Messrs. Wilkinson and Grist)
whether any person was a fit and proper person made the application, and r. H. G. Calthrop,
to continue as an officer of the Court, It did instructed by Mr. J. Scott Harston (of Messrs.
not find whether he had been guilty of a Ewens and Harston) represented Mr. Dixon.
criminal offence or not: the Court was not concerned with that. Mr. Potter said he thought it would be better charges might be made which amounted to It was true that if,, at the outset of these proceedings, he dealt
a criminal offence, but all the Court de with an important matter, namely the rided was whether the Solicitor was, or Was jurisdiction of their Lordships Court in not, a fit and proper person to continue as a case of this kind. This was a motion calling
an officer of the Court. His authority for saying upon one, Clive Fletcher Dixon, to show cause
that the Court's jurisdiction was disciplinary and why he should not be struck off the roll. He
not criminal was found in 12 Q. B. D., page thought he could make the question of jurisdic- 148. Their Lordships would h that the tion perfectly clear to their Lordships if he defendant in that case appealed from the dealt with the old procedure and the new pro-decision of the Court of Appeal. The Incor. cedure in England. He meant by the old porated Law society said he could not appeal procedure, the procedure in vogue before the because the proceedings in the Court ofppeal passing of the Solicitors' Act of 1888, which
had been criminal. The High Court of Appeal must apply in this Colony. By the new procedure said they were not criminal proceedings, as the he meant the procedure now in vogue in En Court was only in disciplinary jurisdiction. gland. Before the passing of the Solicitors Act Solicitors, as officers of the Court, were persons of 1888 the procedure was this: a motion was who were in a position of trust, and it was their made to the High Court and an affidavit was Lordships duty to see that no fit and proper put in by the plaintiff in a matter of this kind. person continued as an officer of the Court. If that affidavit contained any charges of a criminal nature the Court, in fairness to the defendant, alway said: "We will not compel your to answer that affidavit by another affidavit." Counsel thought the reason obvious because if the court made an order that! the defendant should answer by affidavit he was really in a dilemma, because he must answer the affidavit or be guilty of contempt of Court. On the other hand, if he answered and was guilty of the charges, then he had put in a false and lying affidavit. Counsel would submit to their Lordships that this was the only indulgence the Court would show towards the defendant, But what the Court would do, and what their Lordships would find in all the decided cases was this: The Court would say We will make an order that you should show cause why you should not be strick off the rolls. That gives you an option of answering the charge or not as you shall think fit." The Court did not compel him to put in a false statement or any statement. But if he did put in a state- ment or file an affidavit, and on the face of that affidavit there was a prima facie defence -that was to say, for instance, if there was a total denial of the charge as in this case-then the Court referred the whole matter to a Master. The Master heard the evidence on both sides viva voce; he heard counsel on both sides; he reported his findings on the evidence to the High Court, and the High Court acted accordingly. That was to say, if the High Court considered that on the findings of the Master they were justified in striking the solicitor off the rolls, they struck him off. If they thought it was sufficient punish- ment to suspend him for a certain time they did so. If they thought the matter ought to go no further, it went no further. That was the old Common Law Procedure, and must apply to this Colony. The only difference was that there were no Masters here, and of course what happened was that their Lordships fulfilled all the functions of Masters.
was
The Chief Justice-I do not know that there
are no Masters here. There are certain func tions of a aster which are performed by an officer who is called the Registrar.
matter.
The Chief Justice said it seemed to him that there was a hiatus in the argument. The question was a techuical one whether this dis ciplinary matter was a criminal matter or not. But to say that in any case the Court was not asked to find whether the solicitor was guilty of a criminal offence with which he was charged seemed to him to be quite another How could the Court say whether a solicitor was a fit and proper person to continue on the rolls, who was charged with embezzlement, if they did not find him guilty of embezzlement.
Mr. Potter-You find certain charges have been proved, and you say whether a person I shall prove to your Lordships by a long chain of cases that which the Court has refused to act, or has donied there practically never has been an instance in
that it had jurisdiction.
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Mr. Potter-He is far from being on the same footing as a Master. There are many things a Master can do that a Registrar cannot. Proceeding, Counsel said a Master could order that a judgment be entered. Regarding this procedure he submitted that what would happen in this case was that their Lordships sitting as a Full Court should refer this matter to one of the judges who sat on this bench; that he would report, and then the Full Court could decide what was to be done; or in the alternative, that the Full Court would hear the case now The new procedure was that by the Solicitors Act of 1888, a committee of the Incorporated Law
should remain on the rolls.
The Chief Justice I am saying at present is that I see no relation between the two propositions.
Mr. Potter said it went to prove that the procedure in a case of this kind wa purely civil procedure, and he would show their Lord. ships that it made a considerable difference in a case of this kind. Furthermore, suppose the Court took this standpoint: "We will not adjudicato on this case; we will see the defen- dant tried by a criminal jury." That would not relieve the Court from the onus of ultimate- ly trying this case. No matter what the verdict of the jury, whether guilty or not guilty, their Lordships would be compelled to go into the case ab initio : to go into the merits of the case to decide whether this person was a fit and proper person to be an officer of the Court. There were cases where a jury had found a person not guilty, where the Court had truck him off the rolls. Then there were cases where juries had found a man guilty, and the Court had refused to interfere, remarking that he had been punished enough.
The Chief Justice--Disciplinary. Mr. Potter-If the Court is not exercising criminal jurisdiction, then I submit it must be civil. set in which you can appeal, and one set in Cases are arranged into two classes; one which you cannot. As I have said, the person whom we may call the plaintiff can take one of two cases, ships' Court, or else he can go direct to the He can come either to your Lord- criminal court. But my submission is that your Lordships cannot compel the plaintiff to take on himself the guise of prosecutor. You cannot compel him to bear a greater onus than he otherwise would bear by sending the defendant to the Criminal Court. He wishes to come to this Court and your Lordships have jurisdiction in the matter. That jurisdiction has been ex- ercised for the last fifty years in the High
ourt at home. Another point is that one of the principal witnesses in this case, the manag. ing partner of a very important firm in Canton, is resident outside the jurisdiction. Now, sup- posing your Lordships had the power in this case to compel the plaintiff to become the pro- secutor, we have no power, and the Court has no power, to compel the attendance of this vital witness to give evidence in the criminal court. The Chief Justice-If he'd come for one, he'd come for the other.
Mr. Potter said he would probably agree to come before the civil court, but he would do no more, as it would mean so many attendances. It was quite conceivable that by sending the case to the criminal court their Lordships would be putting a greater onus on the plaintiff. It might be putting him in a position in which he could not lay the case properly before a jury, and Counsel submitted that the Court would te fnflicting a very great hardship upon him. Supposing the plaintiff would not prosecute, and that was the aspect of the case which was to be considered, there would be the extra- ordinary position that although there were indictable chargée on the affidavit the solicitor could not topped off the rolls because the High Court pred to exercise its jurisdiction from dis.That would be an absolutely anomalous position.
The Chief Justice The Attorney-General can prosecute
The Chief Justice-The procedure which you are referring to is quite well known. It obtains in the Civil Service where a givil ser vant's acquittal in Court does not print the Governor-in-Executive-Council missing him.
Mr. Potter said his next point was to prove to their Lordships beyond any doubt that the Court would never hold itself, not although a charge of a criminal nature was made against a defendant, and although the defendant did not admit the truth of that charge. The cases for the last fifty years were absolutely concla- sive in proof that although a criminal charge was imputed to a defendant, and although the defendant denied that charge, still the Court in the exercise of its disciplinary Jurisdic- tion, would investigate it. No suggestion of
Mr Potter-Then we would have the diffi. culty or getting the material witnesses, which would be compelling us to come into Court with an imperfect case.
The Chief Justice-Why should it be imper- fect? I don't think the hardship on either side goes for much.
Mr. Potter-The Courts have never considered the point of view your Lordship refere to.
The Chief Justice-I am not saying your argument on the authorities is not strong.
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