APPLICATION FAILS

Evening Post, Volume CXXII, Issue 67, 16 September 1936, Page 12

APPLICATION FAILS

LEAVE TO APPEAL SOUGHT

SEQUEL TO ACCIDENT

In the Court of Appeal today Mr. A. J. Mazengarb made an application for leave to appeal in forma pauperis on behalf of a plaintiff against a judgment of Mr. Justice Blair, delivered in Palmerston North.

The Court of Appeal Bench consisted of their Honours Sir John Reed (Acting Chief Justice), Mr. Justice Ostler, Mr. Justice Kennedy, and Mr. Justice Callan.

The case arose out of a motor-cycle collision accident near Palmerston North, and the parties in the action were Eonald Ross, farm hand, of Palmerston North, appellant (the plaintiff in the original action) and Harold Arthur Beagley, paper runner, Palmerston North, respondent.

In the action in the Supreme Court Mr. Justice Blair non-suited the. appellant in 'a claim for damages arising from injuries received in a collision between two motor-cycles. His Honour held that there was no evidence of any of the acts of negligence alleged by the plaintiff. The plaintiff had brought an action which was set down to be heard before a Judge and jury. The defendant Beagley had also commenced an action in the Magistrate's Court. The latter action was removed into the Supreme Court and was set down for trial before a Judge alone. Both cases were, by agreement or by direction of the Court, heard together, the evidence for the plaintiff in the one case being evidence for the defence in the other.

The chief grounds for the appeal were: (1) That there was evidence to go to a jury; and (2) that the non-suit was premature in that as a matter of jusiice the plaintiff was entitled to the evidence for the defence, and the course taken was a matter only for the convenience of the Court..

In an oral judgment at the hearing today the Acting Chief Justice held that the leave applied for must be refused on the grounds, firstly, that there was nothing in the evidence which established that the plaintiff was on- his correct side of the road at the time of the collision; and, secondly, the plaintiff was not entitled to assume that the defendant's evidence would be given and he was not entitled to leave his case in that position on that assumption.

I Their Honours Mr. Justice Ostler, I Mr. Justice Kennedy, and Mr. Justice Callan concurred with the judgment jot the Acting Chief Justice, and leave jlo appeal was refused.