Not to protect mankind, but to annoy;
And, long as ammunition can be found,
Its lightning flashes and its thunders sound.”
Crabbe.
When I wrote the word “Amen” on the last page of the second edition of this book, I believed that my task had come to an end. Fate, however, has decreed otherwise; and in view of surrounding circumstances it is absolutely necessary that this (the third) edition should be considerably enlarged. Moreover, to have kept silent with regard to the after-transactions—which hinge on the events already related—would have been, in my estimation, a sort of moral cowardice, displaying a lack of duty to my readers, and also to myself as a faithful chronicler. Having given the above brief remarks by way of preliminary, I now proceed to relate the incidents in the order in which they took place.
Mr. Robert Ponting sued Messrs. Huddart, Parker & Co., shipowners, for £500 as damages for loss of health and property caused by, as alleged, the sinking of the S.S. Alert through unsea-worthiness; and on July 26, 1896, law proceedings were commenced in the County Court, Melbourne, before Judge Chomley and a jury of four. Mr. J. Ebsworth, solicitor, conducted the case for the plaintiff, and Messrs. Coldham and Schutt, barristers (instructed by Messrs. Malleson, England & Stewart, solicitors), acted on behalf of the defendants. The trial lasted four or five days, and the evidence on both sides was almost a repetition of that given in the two previous trials of “Kilpatrick v. Huddart, Parker & Co.” At the close of the case on Monday, August 3, the jury brought in a verdict in favour of defendants, and accordingly judgment (with costs) was entered against Ponting. In all probability the case would have ended here but for a singular circumstance which ultimately completely altered the position of affairs. It came about thus: I (the present writer) took a good deal of interest in the case and attended the court daily. During the address of Mr. Coldham to the jury—on the Friday prior to the conclusion of the trial—I heard one of the jurymen (McGregor) call out to Mr. Coldham these words, “Your argument is absurd.” I know not whether the judge heard the remark. I only know that he did not rebuke the juryman. After adjourning the case till the ensuing Monday the Court rose, and as I passed out of one of the Little Bourke Street entrances I heard Mr. Coldham remark to Mr. Stewart, as they left the doorway, “I promised to meet him (or them) at Menzies’.” No attention was paid by me to what I deemed a casual remark until a few minutes afterwards, when an acquaintance said to me, “If you want to see Huddart Parker’s barrister and solicitor talking to the jury, just go into the bar of Menzies’ Hotel.”
Though believing my friend had made a mistake, I, out of curiosity, went into Menzies’ bar, and there saw, sure enough, Messrs. Coldham and Stewart and three of the jurymen (including McGregor) drinking, smoking, and talking together in the most friendly manner, so far as appearances went. The matter seemed so incredible that I, on reflection, deemed it best to go and bring in some person, as a witness, to the bar. Accordingly I went out, and happening to meet Mr. Ebsworth (solicitor for Ponting) on the street, I succeeded in getting him, somewhat reluctantly, to go with me to the bar. It is almost needless to add that, the moment the five gentlemen saw Mr. Ebsworth, they did not wait for a ceremonious introduction; but, on the contrary, took a hasty departure at once. Immediately after their disappearance I asked Mr. Ebsworth, “What are you going to do about this affair?” “Oh,” he replied. “I can do nothing. Mr. Coldham is at the top of the profession; I am only, so to speak, a new beginner, and it would be against professional etiquette for me to take any notice of these people having a drink together.” To this I rejoined, “And so, rather than break through ‘professional etiquette,’ you would stand by and see your client, Ponting, suffer an injustice. If this be the view you take of what I call a serious matter, I may as well tell you what I will do. In the event of this jury bringing in a verdict in favour of the defendants, and of your drawing no attention to what you, as well as myself, have seen, I will, in the public press, expose the whole affair, including the conversation I have had with you on the subject.” This had the desired effect; and when the jury brought in their verdict against Ponting—as before related—Mr. Ebsworth ventured to draw the Judge’s attention to the hotel bar proceedings. Judge Chomley, however, “pooh-poohed” the incident, and remarked that “in all probability the gentlemen concerned had met by chance in a public bar, and were only taking a friendly glass together.” Nevertheless, he added that if affidavits were brought to him showing that serious wrong had been done, he, the Judge, would consider the matter, and give a decision at a future time. Affidavits were taken by myself and others detailing the whole of the circumstances, and these sworn statements were considered by Judge Chomley about six weeks after the trial; but he saw nothing serious in them, and finally refused to grant a new trial. Notice of appeal to the Supreme Court was at once given by Mr. Ebsworth; but, notwithstanding this notice, a demand for costs was served on Ponting, and because it was returned unsatisfied, the defendants’ lawyers applied for, and obtained, an order nisi to make Ponting compulsorily insolvent. Mr. Justice Hood, however, refused to make the order absolute until after the appeal case had been heard.
Matters remained in this state of suspension till March 3, 1897, when the hearing of the case commenced. The following is an abridged report, culled from the columns of the Melbourne Age of March 4 and 6:—
LAWYERS AND JURORS—THE PONTING APPEAL CASE.
Conduct of Counsel and Solicitor
“Highly Indiscreet and Imprudent.”
Majority of the Court favour a New Trial.