Fire Board Appeal Dismissed

Press, Volume CIII, Issue 30451, 27 May 1964, Page 5

Fire Board Appeal Dismissed

(New Zealand Prese Association) WELLINGTON, May 26. The Court of Appeal, in a reserved judgment this morning, dismissed an appeal brought by the Dunedin Metropolitan Fire Board against an order made by Mr Justice Henry in the Supreme Court at Dunedin on December 6 last.

Arthur Barnett, Ltd., whose premises, plant and stock were destroyed in a fire on December 9, 1959, had sued the Dunedin Fire Board for £652,774 damages bn the ground that the loss was caused by breaches of duty on the part of the board. “The appellant has not yet pleaded to this action,” said the judgment of the Court of Appeal today, “but filed a motion in the Supreme Court seeking an order that the action be dismissed or, alternatively, that paragraphs five and six of the company’s amended statement of claim be struck out.” Delivering the judgment, Mr Justice North said: “This is an appeal from the judgment Mr Justice Henry, refusing to exercise the inherent jurisdiction of the Court to dismiss an action on the ground that the statement of claim did not disclose' any reasonable cause of action in law, and a cross-appeal by the respondent against the order of the judge striking out paragraph (5) (A) of the amended statement of claim dated June 10, 1963. “Misconceived” “As the argument on the appeal proceeded, it became apparent the motion seeking to have the action dismissed under the inherent jurisdiction of the Court had Iseen misconceived. “What both parties really desired was to have two questions of law determined before trial in order to avoid the very considerable expense which on one view of the relevant statutory provisions would be needlessly incurred. “When this difficulty was referred to, counsel joined in inviting the Court to treat the present proceedings as if an order had been made to have questions of law argued before trial.” . The judgment said counsel had submitted two questions for determination by the Court, which, however, had declined to adopt this course for two principal reasons. “First, the appellant, the defendant in the Court below, has not yet pleaded and in our opinion it is inappropriate to have a question of law argued before the course

lof the trial has been determined. “Second, this case comes before us as an appeal from the judgment of Mr Justice Henry, who has considered the matter very properly in our opinion, in ' the way he was asked, namely that in the main the appellant was seeking to invoke the inherent jurisdiction of the Court to dismiss the action. on the ground that.it was frivolous, vexatious or otherwise an abuse of Its jurisdiction. Questions Of Law “In our opinion both the questions proposed by counsel raise serious questions of law. We think that Mr Justice Henry was perfectly right in refusing to dismiss the action on the present motion. “For these reasons, we are of opinion that the appeal fails and must be dismissed.” The judgment recorded that the cross-appeal had been withdrawn by counsel for Arthur Barnett, Ltd. Costs of £7B 13s were allowed to Arthur Barnett, Ltd. In the Court of Appeal Mr A. H. Jeavons, with him Mr J. P. Cook, appeared for the appellant and Mr C. I. Patterson. with him Mr D. R. K. Gascoigne, appeared for the respondent. The Court of Appeal comprised Mr Justice North, Mr Justice Turner and Mr Justice Hutchison.