JURY LAW AMENDMENT

Grey River Argus, 23 October 1936, Page 12

JURY LAW AMENDMENT

A CIVIL RIGHT RESTORED, (By P. J. O’Regan.) A short but important measure, the Judicature Amendment Act, 1936 came into operation on the 21st August. The importance of the measure consists in tho fact that not only does it restore the right of trial by jury in civil causes, but it places that right quite beyond the reach of interference by Order-in-Council; There is a widelyheld opinion that the right of a litigant to have his case tried by < jury is "an indefeasible constitutional safeguard. Such was the fact only in criminal cases however, for tho reason that the right of a person accused to a jury is secured by Statute. Uni'll the enactment of the statute now under consideration the right depended on the Rules of Procedure made on the advice of the Judges under the authority of the Judicature Act. In this country, however, the right to a jury had obtained without interruption since 1844. In 1924 an extraordinary, not to say amazing, change was made by Order-in-Council. Here it may be explained that the Workers’ Compensation Act, as originally passed in 1900. contained express provisions safeguarding the common law right to sue for damages independently of the Act. At common law, however, there was a serious restriction of the right of an injured worker to sue his employer for damages in that it was not possible to make the employer responsible if the injury was due to the negligence of a fellow-worker of the plaintiff who was in the service of the same employer by Section 67 of the Workers’ Compensation Act, 1908, this shameful restriction was substantially abolished, and since that date it has been competent for the widow of a man killed by accident to claim damages despite the fact that the accident was due to carelessness on the part of the fellow-worker of her husband, and in nou-fatal cases the right has been given an injured worker to claim any amount not exceeding £lOOO in an action founded on the negligence of a fellow-worker of tho plaintiff. The practical effect of this amelioration of the common law was to increase considerably the number of cases in which injured men sought damages instead of compensation. Despite the fact that the Legislature in enacting the Workers’ Compensation Act, had been careful to preserve the right to sue for damages there appears to have been strong dissent in high places, however, and hence a means was found to defeat the

WILL OF THE LEGISLATURE

Accordingly an extraordinary Order-in-Council was promulgated in December, 1924. The Governor-General was absent from New Zealand at the time, and the Chief Justice, Sir Robert Stout, was Administrator. Criticism was to an extent hushed on account of Sir Robert’s great ago, but if must be said that the Order-in-Council was as daring as it was unique and even ludicrous. Here is the effective position of it:

In pursuance and exercise of the powers conferred by section fiftyone of the Judicature Act, 1908. His Excellency the Administrator of the Government of the Dominion of New Zealand, acting by and with the advice and consent of the Executive Council thereof, and with the concurrence of the Chief Justice of New Zealand and of three of the other Judges of the Supreme Court of New Zealand, both hereby revoke,” etc., etc.

Translated in ordinary language the foregoing extract says that Sir Robert Stout, with the concurrence of Sir Robert, the consent of the Executive Council and of three Judges, had curtailed the right of u litigant to have a jury. The Order-in-Couneil then proceeded to revoke several rules of procedure and to provide, that in every case where the action was founded on breach of contract a jury could be had only with the consent of the presiding Judge. Now, it is an invalid condition in every contract of service that an employer will provide reasonably efficient plant and appliances, and hence it followed, that the practical effect of the Order-in-Council was that injured persons could have their claim for damages dealt with by a jury only if the Judge would consent. In practice a jury was not applied for inasmuch as it was obviously indelicate. to apply for a jury and then proceed to trial before the Judge who had just refused to grant a jury. Accordingly lor more than eleven years an injured man who had been advised that he had a valid claim for damages was deprived of the right to have a jury! Curiously enough, if the accident were serious enough to cause a worker’s death, however, the widow could have a jury! Her claim being independent of her husband’s right to sue. had he been injured and not killed, was not founded on breach of contract, and hence was not curtailed by the Order-in-Council. It is surely an obvious comment that if the system of trial by jury was open to objection, it should have been tne object of a frontal attack, v It was the height of impolicy and injustice to commence the attack by depriving injured workers of a valuable right. Anyhow, the right existing prior to December, 1924, has been restored. Every plaintiff who seeks to recover damages not exceeding £5OO, may have a jury of four on filing a notice, and in every ease where damages are claimed in excess of £5OO, there is an automatic right to a jury of twelve, unless the parties agree to dispense with a jury. The ease for the jury is so strong that it may be briefly summarised: Firstly, the jury system is grounded firmly in our history, and hence the onus lies heavily on its opponents. Seeondty, affords the ordinary citizen scope for the discharge of an honourable duty, and by conferring on the people a share in the administration of tho law, it preserves the legal profession from becoming a| caste.

Thirdly, the system affords the legal proiession honourable scope for forensic talent, and hence the curtailment of the right to a jury was very unfair to the younger members of the profession.

Fourthly, it is settled law that all capital causes shall be tried by a jury and if twelve citizens are competent to send an accused man to the scaffold, they cannot be incompetent to determine the right of an injured claimant to damages.

Accordingly I have no doubt that the majority alike of the legal profession and the electors of New Zealand will agree that the AttorneyGeneral, the Hon. H. G. R. Mason, has done a substantial public service in securing the enactment of the Judicature Amendment Act, 1936.