LAW REPORTS.

Dominion, Volume 6, Issue 1779, 18 June 1913, Page 5

LAW REPORTS.

DRAFTS OF ACTS. BLUNDER OF A DRAFTSMAN. DEFEATS HIS PURPOSE. JUDGE'S STRONG COMMENT. An extraordinary situation created by an amendment to a statuta was revealed in a judgment of tlio Court of Arbitration filed yesterday. The points arose in connection with two appeal cases in which the appellant in each case wa9 tho City Council and the respondent tho Inspector of Awards. When the case 3 were boforo the Court last week, the City Solicitor (Mr. J. O'Sliea) appeared for t"he council, whilo Mr. A. W. Blair appeared for the Inspector of Awards. Judge Sim Reviews the Position. .. The exact nature of the flaw in the Act' is best seen from the remarks of the President of the Court (Mr. Justice Sim). Ho said:—"These are two appeals-from decisions in. tlio Magistrate's Court at Wellington in cases brought by the Inspector of Awards against the City Council to.' recover penalties for breaches of an industrial agreement made between tho council and the Wellington Tramways Employees' Union. The penalty claimed in one action was iilO. ?n tho other, two penalties of <£10 cach wero claimed. The appeals were brought on point of law and matter of fact, and the material brought before this Court consisted of a copy of - the proceedings in each case, and of tho notes of evidence taken by the magistrate. It was contended by tho Inspector of Awards, as a preliminary objection, that an appeal on matter of fact could only ba brought where the amount claimed in the action exceeded .250, and that these appeals bad not been properly • brought. It is clear that this would have been so under Sec- i tion 19 of the Industrial Conciliation and Arbitration Amendment A'ct, 1908. That section was repealed by Section 9 of the Amendment Act of 1911, and another section substituted therefor. The question is: What change (if any) has been made in the law by this amendment? Tho ■ substituted section provides that, in any 6uch action—that is, an action to recover a penalty—any party may, if tho amount of tho claim is not less than jEo, appeal to the Court of Arbitration against the judgment of the magistrate in that action. Sub-section 4 provides that, in tho event of any such appeal, Sections 153 to 158, and Sections IGO and 161 of the Magistrates' Courts Act, 1908, shall (subject to the provisions of that section) apply, and shall be read as if tho references to tho Supreme Court therein were references to the Court of Arbitration. The Act of 1911 makes it a condition of the appeal that the amount claimed in the. action is not less than but it does not specify any other conditions affecting the appeal, or indicate the nature of the appeal, or the procedure to be followed. To ascertain these things referenco must be made to the provisions contained in Sections 153 to 158 of the Magistrates' Courts Act, 1908. Under Section 153 an appeal from a Magistrate's Court to the Supreme Court on matter of fact can be brought only where the amount of the claim exceeds J650. This provision applies, therefore, to appeals from Magistrates' Court's to the Arbitration-.. Court, unless a contrary intention is'indicated in-.the Act of--1911. Tho Draftsman's Blunder. "There'is nothing, in our opinion, to' indicate any such intention, and we must hold that an appeal on matter of fact from the Magistrate's Court to tho'Arbitration Court can bo brought only where the amount of the claim in the action exceeds .£SO. "It seems fairly certain that the purpose of tho draftsman responsible for the Act of 1911 was to enlarge the right of appeal in these cases. Tho result of his labours, 'however, lias been to curtail, instead of enlarging, the existing right of appeal. Ho has taken away the right of appeal on point of law in. cases where the amount claimed was below. »£5. In such cases an appeal might be brought on point of law, with tho leave of the Magistrate's Court. That has been taken - away, but, in other respects, tho subject of appeals has been left exactly where it was before the Act of 1911 was passed. The case is an illustration of how an incompetent draftsman may produce a result exactly tho opposite of that which he set himself to achieve. "Wo must hold, therefore, that the City Council has no. right of appeal on matter of fact in these cases. The council had a right of appeal on point of law, subject to the leave of the Magistrate's Court. But the appeals have not been brought in that way, and the provisions of Section 156 havo not been complied, with. The appeals cannot Jie entertained, and must be struck out," NORTHLAND EXPLOSjON. COMPENSATION CLAIM FAILS. A fatal explosion, which occurred in a quarry on tho west side of tho Tinakori Hills, just twelvo months ago, was recalled by an unusual compensation cose heard in the Court of Arbitration last week. The plaintiff in tho action was tho Public Trustee, as administrator of tho estate of Timot'hy John Neville, deceased, and tho defendants were tho Kohatu Quarry Company. Mr. J. W. Macdonald, solicitor to tho Publio Trust. Office, appeared for the Public Trustee, while Mr. A. A. S. Menteath appeared for the defendant company. Unusual Features In Case. It appeared that Neville had for somo years been in tho employment of the defendant company. As working foreman of their quarry, situated near Northland, it was port of his duty to attend to tho explosives, which were stored in a small shed or offico near the quarry. On Saturday, June 1, 1912. Hp had obtained leavo of absence for the purpose of being married, and he had actually arranged to be married on tho following Tuesday. -On tho Saturday mornintr on which he was to finish work, two terrific explosions occurred at the quarry, and as a result Neville was killed almost instantaneously., Tho girl to whom it was alleged he was to have been married Rave birth to on illegitimate child in December last. It was alleged that this child was a dependent of the deceased (Neville), and oa that ground tho Public Trustee sued the defendant company to recover tho sum of £500 compensation. It was submitted that the questions for the Court to - determine came under threo heads: (1) Did tho dcccased meet his death by accident? (2) Did tho accident arise out of, and in the ordinary courso of, liis employment? (3) Was ho tho father of this child? Mr. Mentfiath raised a preliminary ob- ' jec'ion Hint tho Court had no jurisdiction to hear the ease, involving, as it did, a question . which was in reality ono of paternity and maintenance. A special Court had been provided to deal with such , cases, and, from it, an order could be : obtained against an estate only if pro- . ceedings wero taken within six months - of tli6 granting of letters of administra- , tion. ' His Ilonour was of opinion that tho , Court had jurisdiction to determino tho ' question of paternity. He pointed out _ that, in regard to the timo limitation, the j nction could not have been commenced before tho child was born, as the child ! was not a dependent until it was born 1 (December IG, 1912). ' Several witnesses wore called in support 1 of tho Public Trustee's case, but no evi- 1 denco was tendered by the other side. Mr. Menteath contenting .himself with address- 1 ing thp Court. What tho Court Found. In a reserved judgment filed yesterday ,th» Court held tliat paternity tad.not I

been proved. His Honour Mr. Jnst Ici • Sim pointed out that tlio Court was en titled in eases like this to take the cvi denco of tho mother without corrobora tion. But the Legislature had attaches great importance to corroboration in affiliation cafes and, in tho opinion of th< Court, corroboration ought to 1)0 insisted upon especially in cases where tho mar alleged to be the father is dead. Judgment was (riven for the defendant: with costs, seven guineas. IMPORTANT POINT, EIGHT TO SUE IN NEW ZEALAND. An important point has been settled bj tho Court of Arbitration in a compensation case in which the plaintiff was Thomas Jolin Owen, ship's trimmer, au<l the defendants tho Shaw, Savill, and Albiou Company, shipowners. History of Case. When the case was before tho Couri last weak, plaintiff's counsel, Mr. P. J O'K-egan, stated that Owen was a coaltrimmer on tho steamer Matatua. While the vessel was anchored oil Gisborne op April 18 ho sustained an injury, by accident, as a result of wliich ho lost th< fingers of both hftiids, only tho thumbi remaining. Owen was taken ashore and placed in the Gisborne Hospital, where he remained for thirteen weeks. Tho English Workmen's Compensation Act provided that compensation should be payable in respect of any accident happening on board a British ship (meaning c ship registered and owned m tho United Kingdom) wherever that ship came from Section 11 of the New Zealand Act oi 1908 contained a similar provision with respect to a New Zealand .ship, but. il also applied to every accident in New Zealand, including any accident happening within territorial waters. He contonde<i that under the circumstances Owen had th 9 choice of two remedies—ho might return to England and claim compensation under the English Act, or he could tal« his remedy under the New Zealand Act For the defendant company Mr. M Myers contended that the case was on< for the English Courts, and that the Zealand Court could not deal with it. A: the contract of service was entered intc in England, the claim_ should have beer made under the English Act. Furthermore, tho accident did not arise out oi employment, and therefore no compensa tion was payable. The Court's Decision. In its judgment, delivered yesterday the Court hold that the plaintiff was entitled to take proceedings to recover compensation under the New Zealand statute. The further hearing of the case was adjourned until the next sitting of thf Court in Wellington. . BUTCHER'S WAGES. AND SCALE OP COMPENSATION. . A.ji accident, which occurred on January 19, 1913, resulted in John William Wright, butcher, of Wellington, proceeding against tho' Wellington Meat Export Company to recover compensation. Mr. P. J. O'Kegan appeared for Wright whet the case came before the Court of Arbitration, while Mr. A. W. Blair appeared for tho Wellington Moat Export Company It was admitted that at the time of th« accident Wright-was in the employmeni of tho Wellington Meat Export Company, and had been in such employ for a period of two weeks. -By reason of the injury, Wright had been totally incapacitated foi a period of four weeks. In tho two weeks of his employment his earnings had been upwards of ,£l3, and ho therefore claimed compensation on the highest scale—,£2 10s per week—together with medical expenses. The Wellington Meat Export Compam denied that Wright was entitled to compensation at tho rate of £2 Ids. per week. The company was, however, prepared tt pay him compensation at the rate of *£) Bs. 9d. per. week, and an offer had- been made on this basis. The, company furthei paid into- Court the sum" of i! 6 155.. beint compensation for four weeks at £\ 8s fld., and medical expenses J!l. In a reserved judgment delivered restei;day tho Court decided that the plaintiff (Wright) was entitled to compensation at tho maximum rate of ,£2 10s. per week, Judgment. was 1 : accordingly 'given., for Wright for the-sum of ,£ll, less the amount paid into Court, with costs £3 3s, WAIRARAPA CASE. ONUS REGARDING AN ACCIDENT. Judgment for defendant was given by the Court of Arbitration in tho compensation action in which;the claimant was Neil Lamont, labourer, of Martinborough, and the defendant was Donald' Ross, farmer, of Martinborough. Mr. P. J, O'Eegan 'appeared for Lamont, whilo Mr. 1. Jordan, of Masterton,- appeared foi Eoss. Original Proceedings, It appeared from the proceedings that Lamont had been in the employment oi Samuel Mitchell, who.was carrying out a bushfelling contract for Boss.' Tho statement of claim alleged that in the course of his employment on December 15, 1911, Lamont had his legj broken through a tree falling upon him. Ho was removed fc.i Boss's homestead, where (it was alleged) Boss interviewed him, raid, agreed to pay him wages until such time as he recovered from tho effects of the accident, Later, Lamont was removed to the hospital at Greytown, where ho remained until March-18, 1912. After this lie returned to Eoss's homestead, where' ho was located until December 29, up to which date ho (Lamont) was under the 1 impression that lie would receive wages. As a result of tho accident, Lamont was totally incapacitated for a peri oil of eight months, and he had sustained permanent partial incapacity. Ross had paid .£lO -10s. medical expenses, and .£l3 19s. to tho hospital. Lamont now came to the Court to secure a lump sum as compensation for loss of wages. By way of defence, Eoss said that the two payments which he had made were ex gratia payments, made without any admission of liability. He denied that he was liable to pay Lamont any compensation. Ross further said that'Lamont was not entitled to recover compensation, tho aotion not having been commenced within tho statutory time. The Finding. In, delivering tho judgment 6f tho CJourt, Mr. _ Justice Sim said the Court was not satisfied that the promise to pay compensation had been made by defendant as alleged. Judgment would accordingly be for. defendant, with costs, 6even guineas, and witnesses? expenses to be fixed by the Clerk of 'Awards.