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Tuesday, 21 June 1904


Mr LONSDALE (New England) - To disallow the charging of costs against either party will not prevent the employment of counsel ; but it has been suggested by the Minister of External Affairs that the secretaries of organizations might appear in place of lawyers. No doubt, if such persons were continually employed in the . Court, they would become even better versed in the provisions of the law, and in the procedure of the Court, than any barrister or solicitor who might be casually employed ; but, inasmuch as the organizations of employers do not generally have paid secretaries who devote the whole of their time to their work, it would place them at a disadvantage to have to be represented by their secretaries. Whatever we agree to should be fair to both sides. If we determine that counsel or solicitors shall not appear before the Court, the organizations of employers will be compelled to employ professional secretaries ; and I think that the result will be that the proceedings of the Court will be protracted quite as much as they now are. T do not think that it will shorten the proceedings to exclude counsel.


Mr Watson - Practical experience shows that it does. In New Zealand both sides agreed to the exclusion of counsel.


Mr LONSDALE - The arrangement suggested may shorten proceedings at the start; but I do not think it will do so afterwards. Whatever law we make should be absolutely fair to both parties.

Paragraph agreed to.

Paragraphs j to p agreed to.

Paragraph q verbally amended,' and agreed to.

Paragraph r agreed to.

Paragraph s -

To summon before it the parties to the dispute, and witnesses, and to compel the production before it of books, documents, and things.

Mr. GLYNN(Angas). - I wish to make a suggestion to the Prime Minister. My attention has been called' to this paragraph as requiring the production of books, and, in some cases, perhaps permitting the secrets. of firms to be exposed. In reply to suggestions, I said that the permission to examine books could not well be confined to the President ; for I recognise that it would not be proper to allow one member of the Court to examine the books produced in a dispute, and to refuse to allow the other members to do so. A compromise might be effected bv providing that there shall be no scrutiny of books except in regard to matters actually relating to the case in dispute. As a rule, when books are produced in Court, they are open to scrutiny from end to end, and we can readily understand that unions, whether of employers or of employes, would naturally be anxious that their trade secrets should not be open to the scrutiny of every one.


Mr Watson - We propose that the Court shall consist of one Judge.


Mr GLYNN - The lay members and assessors will be members of the Court ; they will have equal jurisdiction. A suggestion was made to me that the power to make this scrutiny should be confined to the President, but the objection to that proposal is that it would be unfair to have three persons adjudicating on a case, and only one cognisant of all the facts.


Mr Watson - Will the honorable and learned member look at clauses 92 and 93.


Mr GLYNN - I am aware that under those clauses provisions are made for penalties for improper disclosure of evidence ; but the penalty might not adequately cover the injury. The exposure of a trade secret might be far-reaching in its effect. I have no desire to move an amendment unless the Prime Minister can see his way clear to accept the spirit of my suggestion; but by way of further direction to the Court, I think it would be well to add at the end of the paragraph the words - for the purpose of reference to such of the entries or matters only as directly relateto the dispute.


Mr Watson - I think that that is a very fair proposal.


Mr GLYNN - In the majority of cases a Court will not allow a general reference to be made to the books produced in evidence, but the power exists to practically examine them, from end to end.


Mr Watson - If we added the words, " relating to the dispute," would not the honorable and learned member's object be served ?


Mr GLYNN - No. The production of the books must be for the purpose of reference to such entries or matters only as relate directly to the dispute. I am prepared, however, to omit the word " directly " if the Prime Minister desires it. That would give the Court a very wide power of investigation, while, at the same time, operating as a ban against the examination of books from end to end by any agitator.


Mr Watson - I think that if the words, " relating to the dispute," were added, the examination of books would be limited in the way desired-

Mr.GLYNN. - But books brought before the Court may contain many entries other than those relating to the dispute. The rule is that when a book is put in as evidence, any part of it may be examined, lt is hard to determine what is relevant and what is not, and therefore books are often examined from end to end. Rules can be made to secure that books shall be examined only in regard to entries relating to the dispute in question, and when they come before the Court no other entries will be inspected ; but if my proposal were adopted it would make the Court all the more careful.


Mr Watson - I am prepared to accept the suggestion.

Amendment (by Mr. Glynn) proposed -

That the words " for the purpose of reference to such entries or matters only as relate to the dispute" be added.

Mr. LONSDALE(New England).- It seems to me that even if the paragraph were amended as proposed, it would still allow books put in as evidence to be examined from end to end. The moment the Courtwas called upon to deal with the question of whether an employer could afford to pay a certain wage or not, the whole of hisbusiness arrangements would necessarily be submitted to it.


Mr Watson - But clause 93 provides against any improper disclosure.


Mr LONSDALE - In the New South Wales Arbitration Act there is a provisionsimilar to that in the proviso to clause 93.


Mr Watson - It is true that t'heproviso is the same; but under clause 93. a penalty of£500 may be imposed for disclosure of information obtained from the examination of books and papers without the permission of the Court.


Mr LONSDALE - I simply wish to be assured that this provision will not allow every matter to be examined. There have been many complaints in New South Wales, and I fear that under this paragraph it might be possible for a man to ascertain the trade secrets of his opponent. As long as the provision is safeguarded, however, I think that the provision will be a safe one.


Mr Watson - I think that, in view of clause 93, it is perfectly safe.







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