STRUCK OUT

Hokitika Guardian, 8 November 1930, Page 3

STRUCK OUT

CASE AGAINST MAGISTRATE. FRIVOLOUS AND VEXATIOUS ACTION. DUNEDIN, November 6. Proceedings of an unusual tincture were heard in the Supreme Court today, when the Crown made application before Mr Justice Kennedy to have struck out on the ground that it was frivolous and vexations, an action brought against James Rankin Bartholoinew, Stipendiary Magistrate, by John Frederick Hammerley, For damages of £75 for alleged slander. Mr F. B. Adams claimed that the words set out by the plaintiff in the statement of claim were uttered by defendant in the exercise of his judiual duties. Counsel quoted a case in support of his contention that ti e iefendant had absolute privilege. The action was merely ail attempt to get away from that rule, and it was right and proper that it should be sti uck out. There was- a further ground in respect to the time in which the action was commenced. The plaintiff alleged slander on February 12th, which meant that the action shauld have been commenced by August 12th. That had not been done. The Court was asked, however, to deal with the application upon the substantial ground that the defendant was immune from liability and that it. was vexatious and improper to subject him to the action. Hammerley said he did not doubt that the Magistrate used the words of which he complained in liis judicial capacity, but he contended that the Magistrate exceeded his duty. The words spoken were published in the Pi ess and read all over New Zealand. When the Magistrate said that he was a man who had no control over himself, the Magistrate was wrong-.., He was amenable to legislation and was not an irresponsible person, but exercised the control over 'himself that normal people exercised. In regard to the time limit, he claimed that a letter which he wrote to Mr. Bartholomew on July 7th, gave notice qf what was coming. Mr Adams said the Magistrate stated that the words used were really in mitigation as a reason why a heavier penalty shrould not be imposed. There was no intention to injure Hammerley in any way whatever.

Hammerley contended that he had been injured by the words. His Honour said the Court had jurisdiction to dismiss an action on the grounds of the present application, blit such jurisdiction was sparingly exercised and only in very exceptional cases. He was of opinion that this was a case in which the jurisdiction should be exercised. There could be no dispute about the facts which were disclosed in plaintiff’s statement of claim and in a letter written by the plaintiff to the defendant. In convicting Hammerley of behaving in a disorderly manner in a public place, the Magistrate used the words in respect to which damages were asked. There could be no doubt these words were spoken in open Court by the Magis-

trate in the exercise by him of his judicial functions as a Justice of the Peace. His Honour made an order that the statement of claim be struck out and the action dismissed. Costs of £lO 10s were allowed against Hammerley.