September 26.

Tuapeka Times, Volume V, Issue 244, 3 October 1872, Page 6

September 26.

Coneys v. Weldost. — His Honor delivered judgment. He said he had come to the conclusion that no cause of action had been disclose J, and therefore that the demurrer must be allowed. He agreed with the principle laid down by Mr Macassey as determining cases of this kind, ami he thought the defendant as Commissioner, had no immunity from action if he departed from the duties imposed on him by law. Tbe general rule was, as Mr Macassey stated, that where the law cast upon a public officer a duty, any non-feasance, by which a person was injured, would entitle that person to a right of actian against that officer. On that ground, Custom Mouse officers were continually sued for illegal seizure. The whole question turned, therefore, upon whether Mr Macassey had succeeded in bringing the defendant within the rule, and he (the learned Judge) thought he had not. The question resolved itself into two branches : — First of all, what duty was cast upon the Commissioner ; secondly, whether tbe declaration showed a breach of that duty ? It might be granted that if the duty contended for by Mr Macassey was cast upon the defendant, then the declaration was sufficient. But that would mainly turn upon this question : whether the plaintiff was entitled to the notice or information, as it was called in the ninth paragraph of the declaration, which plaintiff claimed. Prima facie, the statute had no express requirement thatnocice of the notice to the Superintendent should be given to the person dismissed. It seemed that the Commissioner could, on any cause or complaint, summon a constable before himself, and, after investigation, dismiss ; but on dismissing the man, notice thereof must be sent to the Superintendent. There was no averment that the dismissal in the present case was not so reported. It seemed that in this case no injury occurred from the want of notice, and the right of appeal to the •^uperinfcenclenfc was given to the plaintiff whether he had notice or not. On the instant the Commissioner pronounced to him the word "go,"' the right of l appeal accrued ; but it did not appear that the appeal must necessarily be before dismissal. It had been said that the plaintiff had not been allowed to appeal ; but there was nothing in the declaration— although he (the learned Judge) had looked through it carefully — that indicated that he had been impeded or hindered by any positive act of the Commissioner. There was no such averment, nor any wonls from which he could gather that inference. " Not permitted to appeal." There was no permission or allowance rendered necessary under the statute. Plaintiff was at liberty to appeal whether such notice of notice to the Superintendent was given him or not. It was to be observed that if the Commissioner had wrongfully dismissed him without giving previous notice that that seemed to be t» condition precedent to dismissal : that itself might be a ground of appeal, and might have induced the Superintendent and Executive Council to have restored him to office, as was done by the Privy Council in the case of Mr Justice Willis, of Victoria. In that case, the Privy Council reversed the decision of the Government of the Colony, because it was a mere mistake of procedure ; but they said, " Inasmuch as the conduct of the party appealing has been such aa to justify his dismissal, we recommend the Crown to dismiss him." That was the course pursued by the Privy Council in that case. The proceedings in the Colony had been wholly irregular, he having been dismissed by the Executive Council without being called upon to urge his defence. The Privy Council allowed the appeal, which gave Mr Willis his costs aud salary up to the timo of appeal ; but on the meiits of tbe case they •recommended the Queen to dismiss him, on account of his conduct. Something of the sort might have happened here. The result might have been to restore plaintiff, which probably would have given him some title to compensation under the regulations, or might have pat him is * feriter pwition

than he now occupied, but he did not appeal ; and so far aa the circumstances were concerned he (the Judge) did not see that the conduct of the Commissioner in any way interfered with his right to appeal, or that that right was in any way affected by the absence of the information which he claimed by his declaration. He thought he could not read the tenth paragraph alone, nor that he could single out that paraeraph and say that it constituted a ground"of action, because tho paragraph itself referred to th«^ previous one, and it was impossible to keep out of sight the fact it referred to, viz., the plaaitiff having been ignorant ef the notice having been given te the Superintendent. The case seemed to turn upon that; and that he considered not a sufficient cause of action. The demurrer would therefore be allowed, and judgment would be for the defendant.