COURT OF APPEAL

Nelson Evening Mail, Volume LXVI, 13 April 1934, Page 7

COURT OF APPEAL

A BLENHEIM CASE MOTION FOR SPECIAL LEAVE (By Telegraph—Press Association) WELLINGTON, 12tli April The Court of Appeal to-day heard a motion by Andrew Wilson for special leave to appeal against the decision of Mr Justice Blair, given at Blenheim.in August 1933, in favour of tlie New Zealand Loan and Mercantile -Agency Co. In support of the motion, Mr P. J. O’Regan stated that when crossing the company’s siding, which passes over a public street, Wilson’s bicycle turned over, resulting in severe injuries to him. A subsequent action for damages against the company was unsuccessful. Wilson wished to appeal, but owing to a mutual mistake by counsel for both parties, notice of appeal was not given within the requisite period. In reply to Mr Justice Herdman, Mr O'Regan stated that th 0 case involved a question of public importance. Mr A. B. Buxton opposed the motion, submitting that the authorities showed that the mere mistake of counsel was not a special circumstance justifying special leave. He further contended that a question of public importance was involved only indirectly, if at all. In reply Mr O'Rogan stressed the fact of mutual mistake by both counsel, which he claimed distinguished the present case from those cited by Mr Buxton. RESERVED DECISIONS DIVORCE LAW POINT WELLINGTON, 12th Apirl. A very interesting point relative to the' divorce huv was decided by the Court of Appeal this morning, when giving judgment in Keast v. Keast. By this' decision it overruled tlie two eases of Lunn v. Lunn and McKenzie v. McKenzie, which had been acted on by the courts for many years. The case is also of interest in relation to

the recent Court of Appeal decision in Ai.-sley v. Ansley, where the Court of Appeal held that a husband was entitled to obtain a divorce on the ground of a separation order being in full force for three years or upwards if there was prior separation in fact which wars not due or attributable to the husband’s wrongful conduct. This case, how'.ever, was approved, of in both Lunn v. Lunn and McKenzie v. McKenzie, which had decided that a separation order made against a husband was itself conclusive evidence of iwrongful conduct on the'part of the husband, which in effect prevented his obtaining a divorce if a divorce action were defended. The present decision, has overruled Lunn’s ease and McKenzie’s case and has decided that a separation order of itself is not such conclusive evidence, but that the Court has power to go behind the separation order and seek the true cause. The Chief Justice in delivering judgment remarked that he came to this conclusion with reluctance, but a decision of both divisions of the English Court of Appeal w r as applicable, and if such decision had been brought to the notice of the trial judges in Lunn v. Lunn and McKenzie v. McKenzie those decisions may have been different. The Court, while holding in addition that petitioner had not established the prior agreement to separate alleged by him, ordered the action back to the Supremo Court to be commenced de novo. LYON V. PUBLIC TRUSTEE Delivering judgment in the case Lyon v. Public Trustee the Court of Appeal ( held that the New r Zealand law r applied to the policy in question and that as a consequence it was protected upon the creditors of deceased by virtue of the Life Insurance Act, 190 S. Mr Justice Herdman dissented from this view. Costs were ordered to be paid out of the assets of the testator other than the proceeds of the insurance policy. NULLITY ACTION In giving judgment on a nullity action in connection with which an appeal was heard by it last month, the Court of Appeal to-day held that the well known rule in Russell v. Rus-

sell which forbids a husband- -or-wife to give evidence which may 'TencLLEb bastardise the issue cf the 'maiTia’gs, was applicable to the nullity- suitMn question, and was not confined- riflis operation to divorce suits