PROCEDURE QUESTIONED.

New Zealand Herald, Volume LV, Issue 17040, 23 December 1918, Page 9

PROCEDURE QUESTIONED.

'•"DEFENCE COURT OF INQUIRY II

WRIT OF PROHIBITION SOUGHT.

EPIDEMIC AT NARROW NECK. A civil action, said to be without precedent in New Zealand, was commenced before Mr. Justice Cooper at tho Supremo Court on Saturday, wren Major Edward William Sharman sought tho protection of (lie Court from the decisions of a military court of inquiry. Major Sharman, who was forrrerly medical officer at the Narrow Neck Oamp. and is now assisla.it director if medical services in the Otago mil tan- district, applied under the terms of the Judicature Act for a writ of prohibition to restrain Colore* G. A. Ward, president, Major A. Plugge, C.M.0., and Major T. A. Lindsay, comprising a court of inquiry appointed to inquire into the administration of the Narrow Neck camp during the recent epidemic, from proceeding further with the inquiry. Mr. Ostler appealed for the plaintiff, and Mr. Sehvyn Mays for the defendants. The Statement of Claim.

In his statement of claim. Major Sharman set out that the court of inquiry was instituted for the purpose of inquiring into and reporting upon the medical organisation and treatment cf tho sick at the Narrow Neck camp during the epidemic, and the conduct of Major H. Peacock, in his capacity of camp commandant, and of Major Sharman in his capacity of medical officer of the camp. The* Court was ordered to assemble at 10 a.m. on December 16. 1918, and Major Sharman comph.ined that the order requiring his attendance was not served op. him until after the time fixed for the commencement of the inquiry. He, however, attended before the Court, and asked for an adjournment for a week to enable him to prepare his defence, but the utmost adjournment which the Court would gTant was until 2 p.m. on the following dav. Such adjournment was insufficient time in which to properly prepare a defence. Major'Sharman stated that he is suffering from a disease of the heart, and was not in a fit state of health to bear the mental strain of conducting his own defence without grave risk oi a dangerous breakdown. Question ol Representation.

When tho Court of Inquiry reassembled at 2 p.m. on December 17' he appeared before the Court, accompanied by his counsel, who produced a medical certificate as to the state of the plaintiff's health. His counsel asked Lie Court's permission to appear on behalf oi She plaintiff, or in the capacity of a " friend." The Court closed to consider the application. While the Court was closed for such deliberation the president left the room and consulted with the officer commanding the district for over one hour. He then returned, and ution the reopening of (the Court announced that he nad consulted with the officer commanding the district, who had instructed him to hand the plaintiff a written order to submit himself tu the examination of a medical board convened by the officer commanding the district for that purpose. The Court then edjourned until the following morning. The plaintiff submitted himself tinder protest to examination by the board, and attended with his counsel at the Court when it assembled the next morning, December 18, when the president, without stating any reason, farther adjourned the Court until 11 a.m. Upon the Court reassembling, the president read a statement, which lie stated was the opinion of the judge-advocate-general, and announced that, in view of such opinion, tho Court intended to proceed with the inquiry, w'uther the plaintiff was able to attend or not ; that the Court would not allow the plaintiff to be represented by either counsel or "friend,' and that if the plaintiff ejected to be present the Court would take no responsibility for any injury to his health. Refusal of Bequests Alleged.

The president of the Court of Inquiry, continued the statement, refused the request of plaintiff's counsel that the Court should note in writing in the proceedings (1) that in spite of the plaintiff's state of health the Court refused to allow him the assistance of counsel or " friend"; (2) that the Court had allowed an outside party to take part in its deliberations in deciding such point; and (3) that the Court in so doing had made itself a vehicle to convey to the plaintiff an order from the officer commanding the district, which was claimed to be illegal. Later, the president refused to accept from plaintiff a letter stating that, acting on the advice of his medical adviser, he was unable to attend the inquiry, and protesting against the Court's action in refusing him the assistance of counsel or a "friend." The president also refused to accept a memorandum from the assistant-director of medical cervices at Auckland accompanying such letter. The plaintiff asserted that the defendants were at present proceeding with the inquiry in his absence, and he was not represented in any way, and had not been given a fair opportunity of presenting his defence. The subject of the inquiry was of the gravest importance to the plaintiff, inasmuch as it involved his professional reputation, and his sole source of livelihood was the practice of his profession, the success of which depended on his reputation. In addition to tne writ of prohibition the plaintiff claimed the costs of the present action. Agreement Between Parties.

When the case was called at the Supreme Court on Saturday, Mr. Ostler stated that he regretted any difficulties had been caused by the application being made on the eve of the Christmas vacation Counsel had been able to agreo on the question of an adjournment, in terms that provided for substantial justice being done to all parties in the meantime. If the Court of Inquiry would give the plaintiff an opportunity of being represented by counsel at the proceedings, he was prepared to drop the present action.' His Honor said it would be improper for him to express an opinion at the present time as to whether the plaintiff had a right to be represented by counsel, or whether the Court of Inquiry had the rigat to refuse counsel admittance. Under the terms of the agreement between counsel, it was provided that the argument on the application for a writ of prohibition be adjourned until after the legal holidays; thai in the meantime the Court of Inquiry shall not proceed with the investigation, except to examine certain native witnesses, who are shortly due to proceed to their homes in the Pacific Islands, but at such examination both the plaintiff and Major Peacock, or their counsel, shall have an opportunity of cross-examining the witnesses ; that in the event of any subsequent inquiry, the evidence of such witnesses as are examined shall, in the event of the witnesses being absent from New Zealand, be admitted. His Honor granted an adjournment in the terms of the agreement made by counsel.