CLAIM FOR £5000

New Zealand Herald, Volume 81, Issue 25050, 14 November 1944, Page 6

CLAIM FOR £SOOO

DIVORCE CASE SEQUEL f" 1 ACTION AGAINST SOLICITOR An unusual case came before Mr Justice Callan and a jury yesterday when a woman who had been the respondent in divorce proceedings seven years ago claimed £SOOO from a solicitor, alleging that "he had failed 'to defend her according to instructions. The plaintiff, Ethel May Devenish Meares, a florist, of Tauranga, conducted her own case, stating in her opening address to the jury that she had been unable to securo the services of counsel. The defendant was H. Owen Cooney, solicitor, of Tauranga, who was represented by. Mr Henry. t In her statement of claim plaintiff stated that on September 15, 1937, she was served with a petition by her husband for divorce. She instructed defendant to act for her. She informed defendant that while she was not unwilling that her marriage should be dissolved this was only to occur on her petition, and she gave defendant written instructions and discussed matters with him subsequently. On September 30. defendant's partner John J. Jamieson, and another solicitor, J. R. B. Lusk, came to her and she signed a document which she assumed to be the answer to her husband's petition. She knew nothing of legal procedure and wrote to defendant saying that she trusted him implicitly to see that her instructions were carried out. At no time was she requested by defendant to sign a cross-petition or a fresh petition for divorce. Decree Granted

The divorce petition was heard by the Chief Justice. Sir Michael Myers, at Wanganui on November 6, 1937, and no answer was filed to tho petition by Henry M. Keesing, as agent for defendant. On various occasions between September 30, 1937, and February 2, 1938, she frequently asked defendant about the divorce, and he had invariably replied, "Everything's all right or "It's just as you wished" and It s no troublo at all." She assumed from this that her instructions had been carried out and that a decree nisi had been obtained on her petition. . . On February 16, 1938, a decree nisi was made absolute, but unknown to her, and on June 3, 1938, defendant wrote informing her that the decree nisi had been granted on her husband's petition. This was the first information she received that defendant had failed to carry out her instructions. At the time the decree nisi was granted there was current a Magistrate's Court order for her husband to pay 20s a week as maintenance for the children, and as a result of the view taken by the Judge on the divorce petition Keesing was not able to secure more than 10s a week maintenance. Allegations Denied The defence filed by defendant was that, while he admitted that he was instructed by plaintiff to act for her, he denied the allegations that she had instructed him' that the divorce was only to occur on her petition. He further stated that plaintiff knew and approved of all matters and things done by him on her behalf, on her instructions. In outlining her case to the jury, plaintiff said she claimed the sum as general compensation. There were, she said, eight legal firms involved in the original case. For nearly seven years she had tried to get justice and saw numerous lawyers without success. Ihev had told her that it was a matter ior the Minister of Justice and the Law Society. She wrote to the society, which replied that "no impropriety has been shown on the part of any solicitor concerned," and she had then filed the papers and taken the case herself. "l laid a petition before Parliament and the reply I got was that it had no recommendation to make, ' continued plaintiff. "I thought that in petitioning Parliament I was appealing to the highest Court in the land, but the treatment of my petition was nothing but a humiliating farce. One would have thought from the inquisition I was subjected to that one was in Germany with the Gestapo behind them." Plaintiff said she had sent her case and. papers to Mrs Dreaver, then M»P. for Waitemata, who had sent them to the Prime Minister, who passed them to the Minister of Justice, from whom they had not been returned. A Document Signed Giving evidence on the lines of her statement of claim, plaintiff read correspondence which had passed between her and defendant. She said Jamieson and Lusk came to her home on October 1 with a document which she had since been informed was her answer to her husband's petition and she had signed it after reading it. . "That is the document which I say has been faked," said plaintiff. "Paragraphs have been added to it after 1 signed it. On the typewritten paper which I signed the first half was just blank paper with only the numbers 1, 2, 3 and 4 on that part. When I asked Mr Lusk what the numbers meant he said they represented numbers on tho other papers." Cross-examined by Mr Henry, plaintiff said she did not know that if she had petitioned _ for divorce she would have been required to give evidence in Court. She admitted that the letter from defendant dated June 3 enclosed a copy of the motion to make the decree absolute and a copy of the alimony deed. Counsel: You read them, did you not? Plaintiff: Yes. Warning by Judge

Plaintiff said she was surprised that she was described as respondent instead of petitioner. She had written to defendant wanting him to take up the collection of the 10s alimony. Counsel: So you intended to collect that 10s a week under the deed as soon as you could? Plaintiff: What has that to do with this case? It is an abuse of Court procedure. This case of Cooney failing to defend my divorce has nothing to do with alimony. In the ensuing questioning, plaintiff frequently reiterated that the questions had nothing to do with the present case and His Honor warned her that she must refrain from comment. Plaintiff said she accepted the 10s alimony because it was one way of getting something for her children. Counsel: Did you write thanking Cooney for all he had done for you. Plaintiff: I might have; I had to use a bit of soft-soap to get more maintenance. which I did get._ In adjourning the hearing until todav, His Honor advised plaintiff to consider her attitude when replying to questions. - "If you are allowed to mix up the functions of lawyer and witness this case will never finish," he added. If she continued to comment from _ the witness-box she would be in the position of committing contempt of Court.