A WAGES CLAIM.

Lyttelton Times, Volume CXVI, Issue 14169, 18 September 1906, Page 5

A WAGES CLAIM.

RESERVED JUDGMENT. Reserved judgment was delivered at the' Magistrate’s Court yesterday in tho case heard before Mr V. G. Day, S.M., in which one Driscoll sued the Kaiapoi' Working Men’s Club for £3O, made up of ten. weeks’ wages from May to July, as custodian of the club. The judgment stated that the plaintiff had been elected custodian on July 19, 1901, in accordance with Rule 8 of the club, which provided that the custodian should be elected annually. Since that date there had been no election of custodian, but the plaintiff had remained in office, paid by the club, until May 2, 1906, when he had been dismissed by the committee, and was paid one week’s wages in lieu of notice. The action had been brought by hi da to recover ten weeks’ wages, calculated to the end of the then current year. - At the close of the plaintiff’s ease he (tho Magistrate) had stated that he was of opinion that the‘plaintiff should be nonsuited,- as it was admitted by him.-that all the wages due up to the time of his dismissal had been paid. Counsel for the plaintiff had then asked: leave under Section 98 of the Magistrate’s Court Act, 1893, to amend the claim by adding-' an alternative claim for damages, and the case had been adjourned for argument in Christchurch. In support of. tho application for amendment, Mr Russell had ■ quoted several English cases decided u nder the County Courts Acts, and also unde*the Judicature Act, together with several cases in New Zealand, decided under the Supreme Court rules. Unfortunately, not one of these cases was applicable, as Section 98 of the Magistrate’s Court Act, 1893, had at the end of tho section, the following words: —•“ But nothing herein shall be deemed to authorise the substitution of one cause of action in the place of another,” which words did not appear either in the County Courts Act or in the Rules of the Higher Courts in England or in the Rules of the New Zealand Supreme Court. Had it not been for these concluding words of Section 98 he should have had no hesitation in allowing tho amendment. So far as he oould ascertain, the case of “ Te Aro Loan v. Cameron, 14 N.Z.L.R., 417,” was tho only reported, case where Section 98 had been discussed. Mr Justice Williams, in giving judgment, expressed doubt upon the effect of the section, but did not decide the point. He said: “ The evidence showed that the defendant was indebted to plaintiff company in the amount claimed, though possibly not in covenant. It may be that this Section 93 of the Magistrate’s Court Act would prevent the Magistrate from giving judgment if a simple contract debt only were proved. If that is it would bo a great misfortune; but I am certainly not prepared to decide that such is tho law.” In the present case there was no need for the point to be decided, as the appeal was allowed on other grounds. “A course of action” was defined by Esher, M.R., in “ Read v. Brown, 58 L.J.Q.8., 120,” as “the entire set of facts that gives rise to an enforceable claim ; the phrase comprises every fact which, if traversed, the plaintiff must prove in order to obtain judgment.” in “ Moore v. Corry, 9 N.Z.L.R., p. 83,” the plaintiff claimed i £l2B, balance of £4OO lent and repay-

able on demand, to which the defendant pleaded a parole agreement making repayment conditional. The plaintiff then filed an amended statement of claim claiming the identical sura on a promissory note for £4OO, repayable on demand. In giving judgment on an application to strike out the amended statement of claim, Mr Justice Richmond said: “ The plaintiff cannot hold judgment on both the claims; they are really alternative causes of action and not a new and different cause of action, and therefore the plaintiff may make tho amendment.” The learned Judge spoke of them as “ alternative causes of action,” and not that they were the same cause of action. That case was decided under the Supreme Court rules, which . lacked the concluding sentence of Section 98. Tho present case was, he thought, different, as the original claim was- for wages, and the amendment asked for -was to add a claim for damages for wrongful dismissal. The causes of' action were absolutely distinct, as the set of facts necessary to support the one would not support the_ other. The plaintiff was nonsuited, with costs. Mr Russell appeared for the plaintiff and Mr Harper for the defendant club.