LEAVE TO ISSUE PROCEEDINGS

Press, Volume LXXXVII, Issue 26394, 12 April 1951, Page 2

LEAVE TO ISSUE PROCEEDINGS

REFUSAL UPHELD BY APPEAL COURT

AUCKLAND SOLICITORS’ ACTION (New Zealand Press Association) WELLINGTON, April 11. The Court of Appeal to-day heard an appeal brought by Jack Stuart Wiseman, of Auckland, a solicitor, from the refusal of the late Mr Justice Callan to grant him leave to issue civil proceedings against his brother, William Lyall Wiseman, also of Auckland, a solicitor, for alleged malicious proceedings in respect of applications made by W. L. Wiseman in January, 1948, and December, 1948, for reception orders under the Mental Defectives Act against the appellant. Also thoy were in respect of an application in January, 1948, under the said act, for his arrest and also to issue proceedings against Henry Burrell, of Auckland, psychiatrist, and Eric Donald Wiseman, of Kiwitahi, Morrinsville, a farmer, for allegedly maliciously conspiring with W. L. Wiseman and inducing, procuring, and authorising him to Issue the application in January, 1948.

Section 6 of the Mental Defectives Amendment Act, 1935, provides that no proceedings, civil or criminal, shall be brought against any person in respect of any act performed in pursuance of the provisions of the Mental Defectives Act, 1911, except by leave of the Supreme Court and that such leave must not be given unless the Judge is satisfied that there is substantial ground for the contention that the person against whom it is sought to bring proceedings has acted in bad faith or without reasonable care. The appellant, who is employed as a solicitor by Messrs Sellar, Bone, and Cowell, solicitors, of Auckland, in an affidavit sworn in support of his application to Mr Justice Callan, said that on January 20, 1948, on the application of W. L. Wiseman, he was arrested and taken to the Magistrate’s Court at Auckland for examination under the Mental Defectives Act and sent to Kingseat Mental Hospital, where he was detained for four weeks. On December 16, 1948, W. L. Wiseman again applied for a reception order against him, but after a hearing in the Court that application was dismissed.

J. S. Wiseman contends that the applications for his detention were taken because W. L, Wiseman and Dr. Burrell had committed certain serious offences involving the deliberate evasion of gift duty and the falsification of documents, of which offences he had knowledge and of which he had complained to certain authorities, and that the applications were designed to prevent investigation into the charges which he was making. He alleges that the accusations against his sanity and that he was delusional were deliberately false, malicious, and perjurous.

__ Leave Refused The appellant first applied to Mr Justice Callan in July, 1949,. for leave to issue the claims mentioned, but his Honour, after investigating the allegations, refused leave. The appellant did not ask for a review of that refusal by a higher Court, but in May, 1950, brought a further application to the same Judge. This was also refused, his Honour holding that the application was vexatious and the allegations not established.

The Court today consisted of Mr Justice Fair, Mr Justice Gresson, Mr Justice Hay, and Mr Justice Adams. Mr Hamilton Mitchell, of Wellington, appeared for the appellant, and Mr C. P. Richmond, of Auckland, for W. L. Wiseman, Dr. Burrell, and E. D. Wiseman.

Mr Mitchell, opening his argument for J. S. Wisoman, said that the merit of the appellant’s application to proceed against the respondents was not in dispute in the appeal, but only the question of his right to proceed with his application, which Mr Justice Callan had ordered to be struck out as being frivolous and vexatious and an abuse of the procedure of the Court.

After hearing counsel's argument, the Court retired to consider if it were necessary to call upon the respondents. When the Court reassembled, Mr Justice Fair delivered the Court’s decision. '■ Tine Court found jy’wM-urrnecessary to decide it if were competent for a person who had made one application which was dismissed to make a second application, but held that the appellant s second application had not been supported by any evidence substantially different from his first application and that the Court agreed with the decision of Mr Justice Callan, and the appeal would be dismissed. Costs were allowed to the respondents against the appellant.