APPEAL COURT

Evening Star, Issue 16778, 5 July 1918, Page 7

APPEAL COURT

AN ACTION FOR DAMAGES. SEQUEL TO COURT MARTIAL. I Yesterday the Appeal Court started the hearing of tin act ion by S. E. Ei'.zgwrrid , : ag-.dmt Colonel Macdonald and others on ; I a claim for JTI .OOO. lire plaintiff wa-; a j 1 ship's steward, who was drawn in a | ballot while on a voyage to San Fi.ui A"o. 1 He was arrested as a deserter on Nhrcii ( 10. 1917, and was sent-'need to 12 months* j imprisonment by a court martial, ot v-aich Major it- C. Kiin a- a rr.eiv-to-r. It, is contended that Major Kirk was not qualified to sit, l.>->xjttr at the time on the retired list ; also that. Fitzgerald was not a deserter. and pb-aded guilty only ; because the court did not inform him of his rights. lire defence Icnies that the court was not duly constituted, and, wen it so, that the decision was unanimous. and was not alfected by Major Kirk's pre--en.ee. also that action was not taken within three months, as prescribed by the Defence Act. The Court- of Appeal has. by way of preliminary, to hear argument on the law points involved in the case. Mr O’Kegan appeared for the plaintiff, and the Solicitor-General and Mr Ikeudoiville for the defendants. Th-? Sohcitor-Gen.-ra! contended that , Major Kirk was qualified to sit on a milltarv court-, and that, even if ho won; not qualified, the court consisted of s’.iliicient numbers of qualified officers, -so that the j presence of an unqualified person would ( tint nullify its decisions. Ho also contended that the man could nolMnvo been rcl-ased on an application for Jiubcas cor pus, as the prcs.-nt defendants na.d no Dower to release him ; and, oven if he were held too long pending trial, that was not a ground for action for damages. -Section 94 of the Defence Act, 1909. providing that no action could bo brought against any member of the forces fox’ ru} tiling done under the Act unless brought within three months was- a bar to any action against any of the defendants, 100 court s-it on March 10, the man was released on September 12, and the action was begun in October. His last contention was (hat an officer on the retired list was qualified to bo a member of a court martial. li-e qualifications were that a man must be an offi'-cr subject to military law and must have held a commission for two years. Major Kirk’s commission had never bom cancelled. He was still a member of the Defence forces, and was still -subject to military law. Air D’Ke tv axi contended tnat li n. couit martial was” not properly constituted there was a want of jurisdiction, and its acts were open to review. For the court to be properlv constituted all the members (re-tail-id must be qualified. If not, so, the court was not isruperly constituted, and its proceedings were ultra vires and a nullity, and the members comprising the court wore liable to an action. The detention of Fitzgerald was protracted because ot the sentence that was unlawfully passed on him.