DOHERTY V. THE WELLINGTON EDUCATION BOARD.

New Zealand Times, Volume XXXIII, Issue 5397, 15 July 1878, Page 2

DOHERTY V. THE WELLINGTON EDUCATION BOARD.

The following is the summing up by Mr. Justice Bichmond in this case; delivered on Friday afternoon : ■ His Honor : Mr. Foreman and Gentlemen of the Jury,'—l have to draw your attention as shortly as I-can to the questions which you will have to decide. In consequence of my ruling as to what .we call the counts for libel and conspiracy your duty will be narrowed to the consideration of the first and second • counts in the declaration, and of the issues which relate to those counts. The issues which you will get rid of altogether, in consequence of the ruling I have mentioned, are numbers 8,9, 10, 11, and 12. To the Bth to the 12th issues, gentlemen, you will return negative answers, on the ground that there is nothing to go to you—nothing in law which will warrant a finding for the plaintiff upon those heads. Many of you are aware, Xdare say, that whilst it is the duty of the jury to weigh the evidence, there is a preliminary duty’ in the Judge to say whether there is any evidence. to weigh. It may be that a case is such that there is no proof adduced which would warrant a verdict in favor of plaintiff, and it is then the duty of the’Judge to state that to the jury. I was of opinion there was no libel, because the libel charged is that the defendants had caused to be printed and published of the plaintiff, in relation to his profession as a schoolmaster, a minute that he was, dismissed for gross misbehavior; and no such minute has been proved. "With regard to the other four counts, I will only say that they are of an extraordinary character, and in my opinion there is not a tittle of evidence applicable to anyone of them, ■ The real question arises'then upon the'second count, and upon matters relating to it. r The most important question is the 13th issue—“ Was the defendant guilty of gross misbehavior warranting his peremptory dismissal?” We shall have to refer to the second plea to see what it involves. Now, gentlemen, I think that an undue importance has been given to this, because it has been supposed that it involves matters which, according to the decision I have given, it does not involve. The action is said to be brought on one ground—one great ground—to clear the plaintiff’s character. I should be exceedingly sorry certainly, whatever the result of the action may if .it did not have that effect. If there be the least belief on the part of the public that the plaintiff has been discharged for immoral conduct, or conduct disgraceful to him as a man or as a teacher, I hope and believe that the result of the present action, will be entirely to dispel any such opinion. The action of the Board was not intended to have any such effect, or calculated to have any such effect. The plaintiff has told us that his situation in Marlborough is dependant upon .the result of the present action ; meaning that if he does not succeed in his action he will be dismissed. I should think it a very unfortunate result if the Marlborough, Board of Education, or whatever the authority may be, took any such view of the matter. Whatever the result may be, narrowed as the issues may be, there is nothing at all reflecting j upon this gentleman’s character as a teacher, or upon his moral conduct, in any shape or way. The charge is simply one of insubordination, rendering it impossible to continue him in a post the subordinate duties of which he, in the opinion of the Board, repudiated. We have heard a very high character given of him by Victorian authorities, and although that may not bestrictly evidence, there is no doubt at all that he is a gentleman of high qualifications as a teacher, and that*is not called in question. His efficiency as a professor of the art of education—than which there is no more important art—is not in the least degree in question; and counsel for the defence expressed his regret that he had, in a part of bis examination, seemed to call Mr. Doherty’s character and attainments in that respect into question. They are not really in question at all. The whole question, gentlemen, is whether or not—whatever he be, or however qualified—he has conducted himself properly in' the subordinate position in which he found himself here; whether he has done anything grossly inconsistent with that position. Of course, we"all know that in any organised body a certain degree of, discipline is required to enable it to fulfil its functions properly. Counsel for the defendants referred to the army. Of course, that is an extreme instance. We all know that in the army and in the navy, or even in an ordinary; merchant-ship, discipline is of extreme importance; and among human beings,'when they are called together in this kind of organisation, it is essential that there should be subordination. It is better, for instance, on board of a man-of-War, that the views of the commander should rule, although he may be, after all, a very iuferior person, than that every Jack Tar on board should be assuming t the command. Of course, organisation in civil bodies is not so strict, but they do require organisation, and there must be subordination in respect to official business. Gentlemen, iu a country like this. the mode iu which power of any. kind has been exercised is open to the freest inquiry. Abuse of power will certainly not fail in a tree country like this to bring down upon it’ ! the censure or punishment it deserves. No one can suppose that there is the least bar to the assertion against any person whomsoever of a private right, whether he bo an official superior or not. There are proper, ways of asserting private rights. In New Zealand, a man who has a grievance, or the shadow of a grievance, has somewhere where he can take it, and get it listened to, and, I believe, redressed. I am very glad that the teachers are organised, and that there is rising aniong them an esprit de corps. The future is greatly in the hands of otir teachers, and I yield to no one in my estimate of the extreme importance of that body, or in my desire to see them thoroughly organised and keenly alive to their professional rights. I won’t say a single .word, against the proper assertion in a proper time and a proper place of the professional rights of the body of teachers. I am only happy to hear they are beginning to organise themselves, and are cultivating what is called an esprit dc corps. All that, . however, in my judgment, is consistent with their perfect discipline, and obedience, in their official sphere, to their official superiors. Now, the question is whether this gentleman has properly comported himself iu the position in which he found himself hero, a position very likely not adequate to his merits. Ho. found himself iu a position - which carried with it certain duties towards his official superiors. I am going to leayo this cpijjstion to you, gentlemen. You have heard it harped upon and harangued upon enough, i The most important document in the whole affair is the letter of the 4th March, 1878. 1 won’t read it again ; there is only one point in it to which I shall draw your attention, and most likely you will read it for yourselves.„ Clearly it was an act of insubordination—nobody can doubt that the tone of it was insubordinate. Insubordination is, of course, misbehavior, but will you call it, taking it with other matters, gross misbehavior. That this letter is insubordinate is obvious. I asked more, than one witness at what time Mr; Doherty left the infant school at Mount Cook, and it appeared that he only had that school

during January, leaving it on the Ist of February. I asked that because Mrs. Francis was to Come to that school, and if Mrs. Francis was to be subordinate to him os organiser, and she toTie under him in any way, some inquiry into her qualifications, made in a proper tone and spirit, might be justifiable on his part as something really concerning him. But it seems that before this .letter; was written he had ceased to have anything to do with the Mount Cook school, and therefore it was not written in his official capacity. What he or other teachers may do in their private capacity as private citizens, and what they may do in their professional capacity, are different things, Mr, Doherty had no possible relation to Mrs. Francis that could justify the demand he opens this letter with. Moreover, there is; another point, with regard to Mr. Girr. Then comes this, which seems to me to' be perhaps the worst part of the letter : —“ Either you are indifferent to my interests, or you are incompetent to judge my work.” Well, gentlemen, is that or is it not an imputation upon the secretary that ho was unjust or incompetent, one or the other? Is’that the alternative the letter opens? If that be the meaning, it no doubt is a very strong remark. Gentlemen, through the decision I have come to—if it is wrong it can be set right, but at present I can entertain no doubt—the case is free from any consideration whether the Board acted without due regard to the feelings of the plaintiff, or whether they maliciously outraged them and attempted to destroy his reputation. The evidence shows to me that the Board did what they did very reluctantly ; whether it Was legally justifiable or not, they did it very reluctantly. Mr. Pharazyn said the words gross misbehavior were not entered in the minutes as much to spare Mr. Doherty’s feelings as anything. In Mr. Pharazyn’s evidence I discover no grain of malice or improper feeling. I shall not refer to Mr. Gisborne’s evidence or to Mr. Toomath’s. It is not a question of feeling, it is a mere dry question of law. Now with regard to the question, was it or was it not gross misbehavior.? It it was such conduct as rendered it impossible to continue the plaintiff in his then position, I think you ought to say it was gross misbehavior. , Unfortunately, I cannot assist you with any very definite authority upon such a subject. Thereis an instance in thehooks,Bidgeway v. the Hnngerford Market Company, in which a case something like this Was left to a jury. Ido hot put it as an authority to you. You must apply your minds to the facts of the case. In determining whether or not this amounts to gross misbehavior you must have regard to the words of the statute. It is not the question whether it is gross misbehavior in the abstract, or standing alone, bat gross misbehavior within the meaning of the 47th section of the Education Act, 1877- I think, under that, gross misbehavior is something different from immoral conduct. No doubt if the words immoral conduct had not been there the jury might have said—“We do not think a man grossly misbehaves himself unless he does something criminal, misconducts himself with the pupils, or otherwise.” But here you must look upon it as something different from immoral conduct. Therefore, if-you find it was gross misbehavior yon will not stigmatise this gentleman as being guilty of immoral conduct. It is in fact grpss misbehavior within the meaping of the statute., I must alter the issue to this effect, by adding the words “ within the meaning of the Education Act, 1877, section 47.” That will make it perfectly plain. I have to consider now the measure of damage, supposing you should be of opinion that this dismissal was a wrongful one. I have given this question some < consideration, and on the best- consideration X can give the matter I think the maximum of damage in this case wifi be three months’ salary, on the ground that upon the construction of this Act this gentleman might be dismissed without cause or reason assigned by the Education . Board, upon consultation with, but without the consent of, the school committee. There is a provision that the school committee is to be consulted, but it does not follow at all that the Board may not without the consent of them dismiss. lam of opinion that the Board has power to dismiss without the consent of. any other body. As they can dismiss upon three mouths' notice, I think that it is the maximum of damage. No doubt the jury might in estimating the damage take into consideration that the plaintiff has had the use of his time during.a part of that quarter, for he got a new situation on the 20th May, and, in very strictness , perhaps that would still further abridge his right to recover. Bat the appointment is in another province; ,it has involved the cost of removal, and supposing you come to a conclusion that the dismissal is wrongful, I think you would be warranted in giving three months’ salary. I find, as far as I can apply my mind to the matter, that in a case where there is a provision made enabling an employe to be dismissed upon a definite term of notice, that term is the true limit of damage. I have only one word to say with reference to the argument Mr. Barton has submitted as to the 'house , allowance. 1 - 1 In a pecuniary point of view it is a very' small affair. I must tell you as regards that that this gentleman is not in a position to sue as upon a proved contract for the payment of that money. The evidence is that the Board came to a ceitain resolution, and there is no evidence that the resolution was ever communicated to the plaintiff. The legal aspect of the question is this, the Board cannot he sued upon a contract by this teacher for an increase of . salary upon a resolution they have in their own minutes, hut, which they have not communicated to him. If they told him he was to have it then it would be quite another , thing, but it was competent tor the Board'to rescind a determination of-that kind after they had come to it. I think there is nothing like a contract until the resolution is communicated. That seems the proper legal view of the subject. It is a matter of a very few pounds to the plaintiff, one way or the other, and it has taken up more time than it was worth. On the one hand the plaintiff says, “ I was entitled to £IBO, besides £2O house allowance, to which the Board added £2O; that made > £220.” Mr. Leo says, “You were entitled, or the Board . allowed, you to be entitled, to £l6O, but they had agreed to give you ,£2OO, and so as to bring it within the regulations they added: £4O house allowance.” Ido not ask you which: is correct, for really no contract has been created between the parties, because the resolution wasriot communicated.

His Honor then read the issues, and directed the jury upon them. Mr. Alcorn (a juror) ; Can the jury not find a verdict tor more, than three. months* salary 1 . ' ■ • His Honor : That is my direction. Mr. Barton ; The jury cannot assume that the Board would have dismissed him , at the end of the three months unless the committee concurred. Mr. Alcorn ; I: would like to ask another question In the event of the jury coming to a conclusion that the word “gross misbehavior” are very nearly equivalent to immoral conduct, cannot they give a . verdict upon any of the other counts? ,

His Honor : According to all principles of statutory constitution gross misbehavior means, with this context, something different to immoral conduct.. • it '

Mr. Alcorn : It may mean the next thing worse.

The jury then retired to consider their verdict.