Action ruled vexatious

Press, 17 November 1976, Page 3

Action ruled vexatious

Ruling as vexatious an act . lion against a former presi- i si dent of the Court of Appeal, I r Sir Thaddeus McCarthy, for i - §129,184 damages for alleged I 3 negligence in dealing with t an appeal, Mr Justice Roper. . in a judgment, in the Su- I Jpreme Court at Wellington, i .'has struck out the statement. 1 , of claim on the ground that l : it disclosed no cause of ac- i -■cion. 1 51 The judgment staved the i slaction. 1 -i The plaintiff was Edward t F Francis Nakhla, a casual • I worker, whose appeal 1 } against conviction in the Su- ( r preme Court a; Wellington j ’ on a charge of frequenting a public place with felonious . intent was dismissed by the j s Court of Appeal t J The conviction however, ; was subsequently quashed □ on appeal to the Pr'vy , i Council. t , “The plaintiff has two < • basic criticisms of tne rea- I . sons for judgment as deliv- < Feted by Sir Thaddeus,” Mr J Justice Roper said. j 'I “First, that •here was noli | reference therein to the, (issue of ‘frequenting’ pnj] (which counsel had made ( detailed submissions; and second, according to the i I plaintiff, that it attributed to ; : his counsel a ‘final’ submis- j j sion which had never been i (made, namely a general sub- < t mission that the verdict was ' I unreasonable or unsuppor-p (table on the evidence.” 5 His Honour said that sub-;' ! sequently, plaintiff’s counsel j J were called to the judge’s' : chambers where it was; ' indicated to them by Sir Thaddeus — in the presence! of the other two members of ’ the Court, Mr Justice Richmond and Mr Justice Beattie! i— that through an admijnistrative error, a page had I . been missed from the judg-l iment delivered, the page); dealing with “frequenting.” . ? “What is alleged, in short, | ■ is that when the appeal was|] 5 dismissed and when the ‘fur- h ' ther reasons for judgment’!, were delivered, Sir Thaddeus! .'acted and knew he was act-1' jling without jurisdiction and' l ,I failed on each occasion to;I 31 act bona fide. II

“The statement of defence is, in essence, a denial of the plaintiff’s allegations and ’ asserts that everything done ' by Sir Thaddeus in relation ' to the appeal and the 1 plaintiff’s motion was done by him in the exercise and performance of bis judicial ’ function as the president efn the Court, which Court was!* performing its function »>f|; hearing or determining an;] appeal by the plaintiff and his motion relating to the appeal. “After the best consideration of the matter that I am capable of giving it, 1 can reach no other conclusion but that this claim could not possibly succeed, and that to *■ permit it to go further would ' indeed be an abuse of the c processes of the Court,” his • Honour said. “On the evidence of Mr t Justice Beattie, there was an 1 adjudication on the ‘fre- ‘ quenting’ issue, and the ( failure of the Court to in- S corporate its finding in the judg. tent was in no sense an < act cl me with jurisdiction—(l and allegations of malice orp lack of bona tides on the it ' part of Sir Thaddeus add 11 nothing to the plaintiff’s'; case. 1 “My view is that the Court!; had jurisdiction to decide ii the case before it. and its < immunity is complete, if indeed there is any need to i call in aid that long- ' established immunity,” said * ;his Honour. “For my part, I do not think there is such i j a need. I

“At best, there was an irregularitv within jurisdiction, a regrettable irregularity and one that should not have occurred but not such that could possibly supply the basis for an action.” he said. The Solicitor-General (Mr R. C. Savage, Q.C.), with him Mr D. P. Neazor, appeared for Sir Thaddeus and Mr W. | V. Gazley, with him Mr D. S. C. Deacon, for the plaintiff. Mr Nakhla.