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Colonial Cases

The Glamorganshire, 1885

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The Glamorganshire

Supreme Court for China and Japan

Rennie CJ, 16 September 1885

Source: North China Herald, 19 September 1885
 

LAW REPORTS.
IN H.B.M.'s SUPREME COURT.
Shanghai, 16th September 1885
Before Sir. R. T. Rennie, Chief Justice.
ON APPEAL FROM H.M.'s COURT FOR JAPAN.
Between
The owners of the British Steam-ship Glamorganshire, Williams, Master, Defendants and Appellants,
And
The Master, owners and crew of the American Ship Clarissa B. Carver, Plaintiffs and Respondents.
  Mr. H. S. Wilkinson, Crown Advocate, appeared for the Appellants.
  The Respondents were not represented.
  The Chief Justice delivered the following
JUDGMENT:
  This is an appeal from an order of the Judge of the Court for Japan made on the 6th July last in so far as the Court give leave to the Plaintiffs to prosecute their action without giving security to answer Judgment on the Defendants' counter-claim against the Plaintiffs.
  The hearing of the appeal was commenced on the 29th of August before the full Court, but was adjourned in consequence of the court considering it necessary to ascertain from the learned Judge in the Court below his reasons for making the order appealed against.
  At the adjourned haring on the 12th instant, the Assistant Judge was unavoidably absent, and the appeal was heard before me alone.
  The learned Judge of the Court below, whilst partially answering the enquiries I made of him, seems to have thought that the Court of Appeal cannot enquire into and take into consideration the reasons which influenced the Judge of the Court below in coming to the decisions he did, unless such reasons were stated by him at the time of giving his Judgment and embodied in the Record of Appeal.
  It is quite clear, however, that a Court of Appeal is fully entitled to inquire into and does frequently ask the Judge who has presided at the original trial for the grounds of his decision.  In the case of Chatterton v. Cave, reported on Appeal, L. R. 10 C.P. 572, Lord Coleridge, C.J., being the Judge, published his findings in certain terms, and the case of Appeal was argued upon a rule to enter a verdict for the plaintiff.  When the rule came on for hearing Lord Coleridge was present, and explained the grounds upon which his finding proceeded, and this was held to be correct, in the House of Lords, to which the case was carried on further appeal. Lord Blackburn stated the practice in such cases be as follows: The usual way in which a Judge communicates to a Court (of Appeal) what he has rued  is by a statement which, if he is a member of the Court, is generally verbal, and if he is not a member of the Court is generally in writing; but in either case, if it is not sufficient, the statement is supplemented, and Cark v. Wood, 9 Q.B. Div., 272, is another authority on the same point, and to the same effect; but even had I not these clear precedents to go upon, I entertain no doubt that I should have ample authority to make the enquiries I did, and take into consideration the answers I receive under our own Rule of Procedure, 172.
  I should then have been better pleased had the learned Jude given me more fully the grounds of his decision than he has done.  He, however, states as follows:
  I first pointed out that the Court had, in my opinion, the power of ordering security to be given.  I then pointed out that the ordering of this security was a matter in the discretion of the Court.  I then went into the facts, as appearing on the record, which led me in the exercise of this discretion not to order the security to be given; my main reason being that I was convinced it would practically amount to a denial of justice to order it.
  The affidavit of Leroy Dow, dated the 22nd of June, showed, in my opinion, that it would be impossible for the Plaintiffs to raise the a mount f security required, and I was of opinion that whether the motion was refused or granted the owners of the Glamorganshire would obtain any redress in this Court even if they were blameless, whereas if their ship was to blame the granting of this motion would derive the Plaintiffs of any chance of recovery; and as the owners of the Glamorganshire had security for their costs if they succeeded, the further pecuniary loss would be refunded  them.  I thought therefore that grave injustice might arise from granting the motion, but no further injury would be done to the owners of the Glamorganshire, if their ship was blameless, by my refusal to make the order prayed for.
  It was contended for the Appellants that the judge had exercised a judicial discretion - that the Court of Appeal has ample power to review the exercise of discretion by the Judge of a lower Court - that security ought to be, as a matter of course, ordered in a case of the kind, and that the discretion of the Judge had in this case been wrongly exercised.
  The learned Crown Advocate, who appeared for the Appellants, did not, however, press that first point, after hearing the statement of the learned Judge.  With regard to the second point there is no doubt.  In the case of The Queen v. The Mayor of Maidenhead, L.R. 8, Q.R. Div. 994, Jessel, M.R., said "Whatever the law may have been, under the Supreme Court of Judicature Act, 1873-1875, the exercise of discretion is now the subject of Appeal." And the case of Bredan v. Greenwood, L.R. XX, Ch. Div., 764 (note), is another strong and clear authority on the point.
  As regards the 3rd point, it is not to be denied that since the passing of the Admiralty Court Act, it has been the practice of the Court of Admiralty at home to order security to be given in all cases of this kind, and this whether the "Res" was capable of being arrested or not.  On this the case of the "Charkien," L.R. 11, A. & Eh. 60, is distinctly in point.
  It remains then for me only to deal with the question of whether or not the learned Judge has, in this case, wrongly exercised the discretionary power vested in him.  The principles which govern this question are clearly laid down in the case of the Queen v. The Mayor of Maidenhead.  Jessel, M.R., there said, "It has been truly said that a very strong case must be made out before the exercise of discretion can be ordered; the Court of Appeal must be satisfied that it has been wrongly exercised" - and also in Bedan v. Greenwood, where Cotton, L.J., said, "It is impossible to lay down any absolute limit as to the cases in which the Court of Appeal will interfere where there is a discretion, but as general rule the Court will not interfere unless a wrong principle has been applied in exercising that discretion, or there has evidently been some serious miscarriage."
  The Crown Advocate urged that the learned judge had exercised his discretion wrongly, and that a miscarriage had ensued upon the ground, principally, as I understood him, that the practice being to order security to be given, the evidence upon which the learned Judge has exercised his discretion and decided not to order it in this special instance was insufficient; and he therefore urged that I, sitting as a Court pf Appeal, was in a position to weigh the evidence equally well as the Court below, seeing that upon the learned Judge's own showing he had relied upon Affidavit only.
It is, no doubt, clearly settled that a Court of Appeal has before it the same evidence as the court below had, it is the duty of the Court of Appeal to exercise its own judgment on the evidence; but a perusal of the Record of Appeal in this case shows that the deponent Leroy Dow, upon whose affidavit the learned Judge relied, was only cross-examined before him in regard to the matter, and it also appears on the Record that in a prior proceeding in the same suit the Court below had heard evidence as to the ability of the plaintiffs to give security for costs.  I therefore apprehend that, had the learned Judge considered himself at liberty to state more fully than he did the grounds of the judgment now appealed from, he might probably have told us that his mind had been influenced by this further evidence.  In any case, however, I am satisfied that he had much better opportunities of forming an onion as to the ability of the Plaintiffs to give the security asked for than I have, and on that ground alone I should be unwilling to reverse his decision.
  But taking the evidence as it stands, how can I properly say that I am satisfied that the Judge's discretion was "wrongfully exercised?" It may be that had I been sitting as a Judge of the first instance I might have considered the evidence to be unsatisfactory or insufficient, and required further evidence before I would have made such an order as that now appealed from; but the evidence, such as it was, goes to the point and is uncontradicted.
  Sitting as a Court of Appeal, I do not then think that I should be justified in interfering with the decision of the court below, and, as I have already intimated, the Appeal must be dismissed; but under the special circumstances of the case, and considering that the Respondents were not represented by Counsel on the Appeal, I shall not give them costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School