Mr. Justice Williams said the Court would deliver judgment, and the point could be argued after.
Mr. Justice A’Beckett said he had the misfortune to differ from his learned brothers as to the course which should be taken with regard to this appeal. The ground on which he thought a new trial should not be ordered, was that beyond all question it would inflict a great hardship on the defendants, who had succeeded in the action, and who were in no way to blame for the indiscretion which had occurred. He thought the duty of the Court in dealing with litigation between the parties was to do justice between the plaintiff and defendants, and not to make an order subjecting to injustice one of those parties in vindication of a principle, unless it was absolutely necessary that they should proceed to that vindication; nor should they make it for the mere purpose of marking strongly their disapproval of that which had occurred. Viewing the case in that aspect, it appeared to be that they were not called upon to vindicate any principle, or to express their disapprobation of what had occurred (disapprobation that both sides admitted must be expressed), in a way which would produce the very serious results that would follow the granting of a new trial. What occurred was done openly, and, as Judge Chomley had said, it was the very last mode of approaching a jury improperly that any man in his sober senses—in his “glass of wine” senses—would attempt. The evidence did not show that there was the slightest attempt made to influence the jury, and when it was known what really occurred, he did not think the conduct would convey to a rational mind any cause for suspicion. The drinking of this glass of wine at the invitation of one of the jurymen was a matter which people might observe upon. They might say it did not look well to see counsel treated by that juryman. He thought that observation would be quite right; it was conduct which the Court would not sanction or countenance, and if the Court had called upon those engaged in this matter for an explanation, it would express its disapprobation and make them pay. But he did not think they should go beyond that, particularly as the judge who tried the case thought it was not a matter in which it would be right to order a new trial. Being convinced that the jury were not influenced, and that the fact that counsel and solicitor had accepted sixpennyworth of hospitality from one of the jurymen would not induce anyone to suppose they would be influenced, he thought this new trial should not be granted. The impropriety, such as it was, did not require such an expression of disapprobation by this Court as would be expressed by granting a new trial.
Mr. Justice Williams thought there should be a new trial. It was said that they should not grant a new trial, because their so doing would be a hardship upon the defendant. That such was not an objection to the granting of a new trial was decided by authority. In the case of Costa v. Merest (3 B. and B., 272), some one, a stranger to both the parties, circulated in the Court handbills reflecting on the plaintiff’s character. Defendant was absolutely innocent of any connection with the distribution of these handbills, and the Court that heard the application for a new trial assumed that the jury had not been unduly influenced. But, taking the defendant’s statement as true, the Court made the rule absolute for a new trial. If any case would be a hardship on a defendant he thought that would have been. There was a defendant entirely innocent, yet because it might be alleged with reasonable suspicion or belief that the administration of justice had been influenced by the distribution of the handbills, the Court on that ground granted a new trial. In this case, so far as the question of hardship was concerned—with which he thought they had nothing to do—the defendant was not so entirely innocent. The parties to litigation lost their personality in their counsel and solicitor, and the persons who did these acts which gave rise to reasonable suspicion in the minds of plaintiff and others who witnessed them, were the defendants’ own counsel and legal adviser. Therefore, in the circumstances, he did not think the argument of hardship applied. Then it was said the learned Judge of the County Court had already decided the matter of this application; that in the exercise of his discretion he refused a new trial. In his opinion, however, the learned Judge had not dealt with the application on the grounds upon which it now came before the Court on appeal. He had apparently gone on the aspect of what was the intention of the defendants’ solicitor and counsel, whether they were actuated by any corrupt motive, and whether the jury were in point of fact influenced by what they did. Those were the grounds on which Judge Chomley dealt with the case; and, speaking for himself, he did not differ from the view taken by the learned Judge on that aspect. The principle upon which the Court should exercise its discretionary power in granting a new trial on an application of this kind was, that if from the acts of the jury or the legal advisers of one of the parties in connection with the jury, there were reasonable grounds for suspicion that the administration of justice was being improperly influenced, the Court should, in order to preserve the administration of justice from that stain or taint, grant a new trial. It appeared to have been established on authority that where acts had been committed such as to give reasonable ground for suspicion, in the minds of the litigating party and his advisers or the public, that there had been an attempt to bias and influence the proper administration of justice, the Court, for the purpose of placing the administration of justice as far as possible above reasonable suspicion, would grant a new trial. Another case had been cited (Hughes v. Budds, 4 Jurist, p. 156), where some of the jury managed to get out of their room on more than one occasion while considering their verdict, and two of them went to an hotel, where they were seen drinking beer and eating bread and cheese in the company of the plaintiff’s attorney. The Court there held that these were acts of impropriety on the part of the jury sufficient to awaken a reasonable suspicion that the administration of justice had been tampered with. In the Victorian Court the same principle seemed to be observed, according to decisions by Mr. Justice Hood and the Chief Justice. He accepted every word of Mr. Coldham’s affidavit, and from the undisputed facts it was apparent that he knew the juryman (McGregor) before. This was all the more reason why he should have kept him at arm’s length. It appeared that McGregor handed Mr. Coldham a piece of paper just as the Court had adjourned. That fact alone would be calculated to excite suspicion. The learned counsel thoughtlessly and indiscreetly took this piece of paper, and looked at it, when his proper course would have been to hand it back at once, and say to the juryman, “You must not communicate with me.” This piece of paper contained, in the shape of a drawing, the juryman’s views on the construction of a portion of the vessel. That was an improper act. Mr. Coldham ran out into the street, and called out that it was of no use to him. Getting as a response “That’s all right,” he shouted out that he intended to take it down to him. Learned counsel could not remember whether he said “at Menzies’ Hotel,” but what was present in his mind was that he would bring it to the Menzies’. Therefore, he must have known the juryman was going there. He did meet the juryman there, and together with the defendants’ solicitor had a drink with him after handing the paper back. Such conduct on the part of both the counsel and the solicitor was highly indiscreet and highly imprudent, or, as Mr. Box admitted, “heedlessly indiscreet.” Coming back to the principle he had enunciated, what would these undisputed facts give rise to in the minds of the plaintiff and the public generally? They would naturally give rise to the suspicion that plaintiff’s case, so far as the administration of justice was concerned, was not receiving fair play. He would go further and say that the facts would reasonably give rise to the suspicion that there was some underhand work going on which was calculated to influence the jury in favour of the defendant. Upon that ground, and acting on the principle he had referred to, he thought there should be a new trial, and in coming to that conclusion he did not think it was in the slightest degree contrary to that on which Judge Chomley relied. Upon these grounds, and the principle he had named, and with the view of keeping the administration of justice free from reasonable suspicion or taint, he thought this Court was acting wisely, if he might say so, in following authorities, both ancient and modern, and saying that there should be a new trial.
Mr. Justice Holroyd said he concurred with his learned brother, Williams. He considered Mr. Coldham’s affidavit, on the very face of it, bore the stamp of truth; but he felt that he was absolutely constrained, by authority, to arrive at the same conclusion as his brother, Williams. He would be directly contravening English decisions, and decisions of this Court, if he were to decide otherwise. No doubt it was a great hardship to the defendant that he should lose the fruits of his victory because of an indiscretion upon the part of jurymen or his counsel or solicitor. At the same time that was a necessary condition of the relationship which existed between counsel and solicitor and client. Some people, not familiar with the great caution that both bench and bar, he believed, exercised in maintaining the pure administration of justice, might fancy that the Court in coming to this decision suspected some foul play. Speaking for himself—the other members of the Bench had spoken for themselves—he suspected none, but he cordially agreed that the administration of justice must be free from suspicion. Therefore he concurred in the judgment pronounced by his brother, Williams.
Mr. Leon: Then your Honour will make an order allowing the appeal, with costs?
Mr. Justice Williams: Before doing so we will hear what Mr. Schutt’s law point is.
Mr. Leon said he was not instructed as to the point, and the Court, therefore, adjourned the case until Thursday next, the understanding being that subject to the point of law involved a new trial should be ordered.
The Menzies’ Hotel incident, as a matter of course, created a good deal of stir in the Melbourne Press. It is impossible in these pages to give all the comments; but the following well-argued article front the leading columns of The Age of March 10, 1897, is worth quoting:—
“‘A highly indiscreet and highly imprudent act’ on the part of Mr. Coldham, the barrister, has involved Messrs. Huddart, Parker. & Co., and Mr. Ponting, in pretty stiff law costs. So says Mr. Justice Williams; and Mr. Justice Holroyd adds his verdict that this is ‘a necessary condition of the relationship between counsel and client.’ If counsel blunder clients necessarily suffer, while the advocates may reap advantages from their own mistakes. This is one of the delightful aspects of the administration of the law, as distinguished from every other kind of profession. The ship captain who commits a ‘highly indiscreet and highly imprudent act’ runs the risk of being disrated for his rashness or carelessness. The surgeon who carves his patient like a butcher may be sued for improper and unskilful treatment, and if unsuccessful in his defence loses cash and credit at the same time. The carpenter or plumber who builds unskilfully must repair the damages of his default. But the lawyer who gives unsound advice, or conducts his case with imprudence and indiscretion, may simply shunt the consequences on to his client, and is as merry as before.