STRUCK OUT

Evening Star, Issue 20634, 6 November 1930, Page 14

STRUCK OUT

ACTION FOR SLANDER COSTS OF TEH GUINEAS ALLOWED His Honour Mr Justice Kennedy this morning heard an application by the Crown to have struck out, ou the ground that it was frivolous and vaxatious, an action brought against Janies Rankin Bartholomew, stipendiary magistrate, by John Frederick Hammerley for damages of £75 for alleged slander. Mr F. B. Adams appeared in support of the motion for the defendant. Hammerley appeared ou his own behalf. . Mr Adams, in addressing the court, claimed that the words set out by the plaintiff in the statement of claim were uttered by defendant in the exercise of his judicial duties. Learned counsel quoted a case in support of his contention that the defendant had absolute privilege. The action was -merely an attempt to get away from that rule, and it was right and proper that it should be struck out. There was a further ground in respect to the time in which the action was commenced. The plaintiff alleged slander on February 12, which meant that the action should have been commenced by August 12. That had not been done. The court was asked, however, to deal with the application upon the substantial ground that the defendant was immune from liability and that it was vexatious and improper to subject him to the action. Mr Hammerley said he regretted having to come to the court. He did not do it for pleasure; he wanted to attain an end.: He did not doubt that, the magistrate used the words of which he complained in his judicial capacity, but he contended that the magistrate exceeded his duty. The words spoken were published in the Press and read all over New Zealand. When the magistrate said that he was a man who had no control over himself the magistrate was wrong. He was amenable to legislation and was not an irresponsible person, but exercised the control over himself that normal people exercised. In regard to the time limit he claimed that a letter which he wrote to Mr Bartholomew on July, 7 gave notice of what was coming. Mr Adams said the magistrate stated that the words used were really in mitigation as a reason why a heavier penalty should not be imposed. There was no intention to injure Hammerley in any way whatever. Hammerley; Let it be intended what it was. It has injured me. His Honour said the court had jurisdiction to dismiss an action on the grounds of tho present application, but such jurisdiction was sparingly exercised and only in very exceptional cases. He was’of opinion that this was a case in which the jurisdiction should be exercised. There could be no diepute about tho facts, which were disclosed iu plaintiff’s statement of claim and iu a letter written by tho plaintiff to the defendant In convicting Hammerley of behaving in a disordeily manner in a public place tho magistrate used tho words in respect to which damages were asked. There could be no doubt the words were spoken in open court by the magistrate in exercise by him of his judicial functions as a Justice of the Peace. After quoting a number of cases in support of this view His Honour made an order that tho statement of claim be struck out and the action dismissed. Costs of ten guineas were allowed against Hammerley.