SUPREME COURT.

Dominion, Volume 4, Issue 1085, 25 March 1911, Page 14

SUPREME COURT.

INTERESTING UABOUR CASE, £50 DAMAGES AXD COSTS. An interesting judgment was given in t!io Supreme Court yesterday morning by Mr. Justice Cooper, in the ease James I lowers, wharf labourer (Mr. Blair)' v. Tlio Wellington Wharf Labourers' Union (Mr. O'Regan). Plaintiff claimed that, on Mav 8, 1908 ho became a member of the defendant union, was a member in April, 1010, and was still a nieinber. Ho complained that (in that month) the union, through its officers, notified the employers "of ivharf labour at Wellington that*lie had ceased to bo a member, and had becomo ineligible for employment, except in breach of an award of the Arbitration court, dated March 2-1, 190S, under which preference to unionists was given, ™ 'J l ' the defendant union had unlawfully excluded him from the union, and had prevented him from obtaining employment locally. Altornutlvu caiucs ac tion were sot out in the. statement of claim, but tho above short statement was substantially the plaintiff's cause of action. Tic claimed the issue of a writ of mandamus commanding the union to recognise him as a member of tho union, an injunction to restrain it from representing that lie was not a member, and a sum of £175' damages. 'ilio substantial defence set- up was that the plaintiff bad (by virtue of ■an alleged failure to pay the contributions to the union provided for in tho union's rules) ceased to be a member at the time that the notices given by the union to employers of labour, referred to in the plaintiff's statement of. claim, were given. His Honour said that the question which the Court had to decide were mixed questions of law and fact. In setting out tho facts, and 1 bis interpretation of the position at considerable length, his Honour stated that, in his opinion, it was ■unnecessary to determine the interesting question argued by counsel as to whether or not a 'person who bad been- a member of a workers' union, but who had ceascd to be a member in consequence of being twelve months in arrear with'his payments, could, under the preference clause, settled by the Arbitration Court, insist on becoming a new member without first paying up his twelve months' arrears. The question to bo determined in, tho case under review was whether or not the payment made by the plaintiff, and received by the union, could (under tho circumstances proved in tlio present case), be legally appropriated by the union to the arrears due by the plaintiff. Tho Court was of opinion that it could not. The rules as to the appropriation of payments were well settled. Tho first rule was:. That the person making the payment had, in the first instance, the option of making it declare the purpose to which it was to bo appropriated, and that this intention might be sufficiently collected, either from his conduct at' the time the payment was made, or from tho circumstances under which the payment was madg. The second rulo was that, if the debtor did not make the appropriation, the creditor might do so; and tlio third rule was thnt where money was paid generally without any appropriation it ought to bo .applied "to the first items in the account due by a debtor to his creditor. The payment- made by the plaintiff in May, 190S, clearly came within , the first rule. He declared that the purpose for which it was made, (aiul his intention lint meroly.proved '• by his express statement at the time/ but from tho surrounding and subsequent circumstances. From that tirao ho Tvas treated as a member of the- union. Ho could not havo been so treated •unless he had acquired a fresh status by-virtue of a'now admission as a member. His name was returned as a member of the union for tho year 1909,:-.nd he could not havo been legally so returned'unless ho had acquired this new status. He was allowed to work as a unionist without objection, from time, to tir.'.o up to April, 1910, and, during the period from May, 1908, to January, 1909, lie was allowed (under the rules of the union) a remission of five months' dues, owing to his absence for ' that period "from 'work. This was undisputed. .. He also paid- in cash to the union, subsequent to tho payment made about May 8, 1908, at least six separato payments of Is., the last being mado on December 24, 1909. In his Honour's opinion, these puymcnts we're made by -liim in respect of contributions accruing due, since lie was re-admitted to the union, and could not bo properly appropriated by tho union for any other purpose. He was, therefore, an effective member of the union on April 20, 1910, vis ho was not, on that date, twelve months in arrear with his dues accruing due since.-ho was admitted as a member of the union on May 8, 190 S. On April 20, 1910, the defendant union, acting, in his Honour's opinion, in a mistaken view of tlio plaintiff's legal position as a member of the union, guvo a written notice to tho principal employers of wharf labour on tho Wellington wharves that the plaintiff had ceased to be a member of tho union, and could only be employed under special circumstances which allow non-unionists to be engaged. After detailing the endeavours of Flowers to get n statement of his alleged liabilities from the union, and his written application to bo re-admitted, his Honour concluded as under: —"I have, upon the facts which I have stated, come to tlio. conclusion that plaintiff _ has established a cause of action against the defendant union. He had ceased to be a member of the union hefort tho award of the Arbitration Court was made in April, 1908, and he was, therefore, .when tho award came into operation, n non-unionist within the provisions of tho preferenco clause, and was properly treated as such by tlio union. He was admitted a member of the union in May, 190S, and although ho made no written application for such admission, tho necessity for such was waived by tho union, for lie was accepted as a member, and treated as a member throughout' that year and the year 1909. His subscriptions accruing due upon such membership were not twelve months in arrear When tho union warned the employers that lie was a nonunionist. By such warning and representation the union wrongly .interfered with tho plaintiff's status as a member of the union, and deprived liim of tlio benefit of such status, and by its continual refusal to recognise .him as a member, prevented him from being employed upon the wharves as a member of tho union, and thus deprived him in derogation of his legal right of tho benefit of the preference clause in the award. As ho has from time to time tendered to the union the subscriptions becoming due he has never since his admission to tho union in 190S been twelve months in arrear and bo is still a member of tho union. "Ho is, therefore, entitled to an order for tho issue of tho mandamus asked for. Counsel for tho defendant union lias intimated that the union will, if tho Court declares that tho plaintiff is entitled to ho recognised as a member of tho union re-"onrol his name without the necessity for the issue of the writ, but tho plaintiff is. nevertheless, entitled to an order for its issue. "In my opinion lie is also entitled to damages. Tlio action of tlio union in refusing to recognise the plaintiff ns a member was wrongful, and warning employers not to employ him was a breach oF duty which it owed to him as a member and has resulted in injury ti tho plaintiff sounding in damages. His counsel has submitted that be is ( entitled to punitive damages. I do

not think so. Tho action of the union was based upon a mistaken view of its legal rights and of tho plaintiff's legal position as a member anil there is no ground for awarding damages by way of punishment. Wiiat the plaintiff is entitled to is a reasonable sum by way of compensation. It is somewhat difficult to determine what that sum should be. Tho plaintiff says that lie was ablo to earn on tho wharves about £3 us. per week since the award canio into operation. Hut work on the wharves is casual, and it is not always abundant. Very often the supply of union men exceeds tho demand for labour, and although the action of tho union placed the plaintiff in tho position of a nonunionist so far as regards wharf labour ho could no doubt have found some employment at other unskilled labour. Ho., is not, in . m.v opinion, entitled to say. that, becauso he has been wrongly treated as a- non-unionist by the defendant union, he is entitled to damages for tho whole time lie has remained idle. He has not suggested that he lias made any attempt- to earn wages at any other class of labour. Taking tho whole, circumstances into consideration, I think a reasonable amount to award by way of damages is tho sum of £50. "There will, therefore, bo judgment for tho plaintiff for the sum of £50 damages, an order for tho issuo (if necessary) of a writ of mandamus, and judgment for costs on the lower sealo with an allowance of £7 17s. Cd. for tho extra half day over which the trial extended, and witnesses' expenses and Court fees, to ho ascertained by the Registrar of this Court." AN OLD METHODIST TRUST, A GRANT OF 1852 VARIED. Some old memories wero recalled in the Supreme Court yesterday morning when agrant made in 1552 by the late Sir Geo'rgo Grey to the Rev. Jas. Watkin, superintendent of. tho Weslevan Mission in Wellington, was dealt with by .Mr. Justice Cooper. . The application before tho. Court was for. tho variation .of an order previously made by Mr. Justice. Cooper in regard to certain property in Salamanca Koad, owned by the Methodist Church, tho parties'being .Wm. Moxham and others, as trustees of the Methodist Church, versus' tho Attorney-General. Mr. Martin Chapman, K.C., with him Mr., C. Dix, appeared for plaintiffs, and Mr, W. H. I). Hell for defendant. The uiotion"asked that an order made by tho Court on January 28, 1905, settling a scheme providing for the application of moneys held by the plaintiffs lor part thereof), for tho purchase of a site for, and the erection of, an orphanage, and making provision for the maintenance of the orphanago out of' the annual proceeds of tho land still vested iu' the trustees, be varied' by substituting in. lieu of such scheme a scheme for the establishment of a kindergarten school. Tho ground sot out for tho variation was that the scheme proposed to bo substituted was a proper one, and that the'funds at the disposal of the trustees were insufficient to establish and maintain an orphanago homo. Mr. Chapman said tho scheme had been settled, but could not bo carried out as it was. An affidavit filed by Mr. Ilarland, secretary of the trustees, stated that it had been promised to found an orphanage, but" the income available from tho property in question was only £600 per year, and this sum was not sufficient to maintain the orphanage in accordance with the provisions of the original "rant. At the same time tho £600 would be sufficient to maintain a full kindergarten svstoni, nonce-.the application. Tho whole alteration, said Mr. Chapman, was really the substitution of kindergarten schools for the orphanage. The principle was accoptecl by tho Attorney-General, who might, however, have some details to refer to. Mr. Roll remarked that tho original deed o£ grant provided for industrial ■education. Was kindergarten, industrial education? ho asked. It looked, on the face of it, as though the deed of grant' contemplated older children. His Honour said it was quito clear that the fund was insufficient for the trustees to set up a technical college. It was equally, clear that there was fiot sufficient to establish an orphanage. A kindergarten school, however, would enable tho trustees to give this class of instruction. Mr. Chapman remarked that this work was being carried on to some extent at present—children wero being taucht just-those things they would leanfat an industrial school.. Mr. Bell'said that no doubt the plan proposed was the best possible. If tho Court could hold that it was according to tho, deed tf grant there could be no objection. His Honour thought tho motion should bo passed. It seemed a pity to see the : fund practically useless for want of some proper channel into which it could bo directed. Mr. Bell said lie had no doubt tho Attorney-General would bo pleased to see the scheme as suggested go through. His Honour said he was disposed to vary tho decree in terms of the notice of motion, by ordering that tho moneys might Ijo used for the establishment of kindergarten schools. 'J'ho decree'was accordingly varied by substituting kindergarten schools for orphanage, and by declaring that tho trust shall bo administered in accordance with tho scheme now before tho Court. An order was also made that the costs of both parties bo paid out of the trust funds. A CHANCE OF NAME. An application waj made in Chambers yesterday, before Mr. Justice Cooper, for an order to change the name of Messrs. Symouds and Co., of Wellington, to Cramp an I Co., Ltd. The apJ plication was allowed. .