IMPORTANT JUDGENI

New Zealand Times, Volume XLVI, Issue 10689, 8 September 1920, Page 4

IMPORTANT JUDGENI

£3OOO STRUCK OUT JUDGE DEFENDANT IN LIBEL CASE. ACTION "BASELESS AND FRIVOL OUS." Tho motion for. an order dismissing an action which was brought by Patirick' Buckley Fitzherbert, of NewPlymouth, barrister and solicitor, against Frank Oswald "Victor Acheson, oj Wanganui, judge of the Aotea j Maori Land Board, for £3OOO dam* ages for alleged slander, has been approved by His Honour Sir John Salmond. The motion was brought on the ground that the action was frivolous and vexatious and an abuse of the process of _ the court. In giving his decision at-the Supreme Court yesterday, His Honour l held that the court had' an inherent jurisdiction to dismiss any action on the ground submitted. '"lt is not § necessary, however," he continued,' "that the statement of claim should be demurrable as showing no cause of action on the face of it. The fact? may be placed_ before the court on affidavit, and if on consideration of those facts, the action is clearly shown to be so baseless that the trial of it would be a vexatious abuse of the process of this court, it may and should • 'be dismissed without allowing the plaintiff to proceed to a hearing. F am satisfied that this condition is fiilfllled m the present case, and that the defendant h untitled to an order striking out the statement of claim and dismissing the action." FUNCTIONS OF MAORI LAND BOARD. Here His Honour reviewed the circumstances - under which the alleged slander by Judge Acheson against the defendant took place, and in the course of so doing said: "The defendant .is president of the Aotea Maori Land Board, constituted under the Native Land Act, 1909, and Rmtinded by tho Native Land Amendrr ent Act, 1913. The plaintiff is a barrister and solicitor of this court,' and sues the defendant for £3OOO in respect of defamatory charges of professional misconduct made against him bv the defendant at a sitting of the Maori Land Board- at Hawera, on July 2nd, 1920. A Maori Land Board possesses both judicial and administrative functions. One of its judicial functions is the hearing and determiiiation of applications for the confirmation of alienations -of native land.'- It is exDicssly OTOvided by section 225 of the Native Land Act, 1909, that on the hearing and determination of such applications the board shall be deemed to constitute a court of record, and shall have the same powers of hearing evidence and summoning witnesses a« nre possessed by the . Native Land Court. By section 25 of the NatJve Land Amendment Act, 1913, the president fitting alone exercise all the judicial and administrative functions of the board. ,_ln the exercise of such iudicial functions the president of a Maori-Land'Board "possesses absolute imm'nnity'ft6lri' : actions''.of libel or slander. What he says in his judicial capacity is absolutely privileged, and this'is so even if his observations may ha-ve. been irrelevant to the matter in which he was exercising jurisdiction This rule of jidicial immunity applies to all courts" and judicial offio ers, whether superior, or inferior. QUESTION OF PRIVILEGE.

"If the defamatory words which ar« the subject of this action were used by the defendant while acting in his judicial capacity, it ia clear that, whether the words wero relevant or irrelivant, j true or - false, ..malicious or bona fide, ! the action is baseless and frivolous. If, ; on the other hand, the words complain, ;ed of were used by the defendant while acting in his administrative capacity, only they would bo subject at the most only to qualified privilega under the law of libel, d*r to the special protection afforded to members of Maori Land 130a.-ds by section 34 of the Native Land Amendment Act, IDI3. which provides that no membei of such .board shall be personally liable in 'damages for any act done or omitted bv that board or by any mqmber thereof in good faith in pursuance or intended' pursuance', of fbe Native Land .Act. In auch a case, therefore, the plaintiff would have a fight to proceed to the trial of his action, and tho present application _ for the exercise of tho summary jurisdiction of the court could not succeed. POWER OF SUMMARY DISMISSAL.

''l find it proved beyond reasonabla question that tho words now complained of were used by the defendant in his judicial capacity as president of the Maori Land Board while '] hearing and determining an application for the confirmation of an alienation of native land by one. Atcmirikura, to one, James Suitor McKay, and that the action is therefore an attempt tft make a judicial officer liable in •damages for words said by him in tie course of the administration of justice. I am of opinion .accordingly that there is no question either of law or of fact, genuinely in. dispute in this action, and that to allow it to go to trial would- be unreasonable and oppressive. Tho power of summary dismissal in order to prevent an abuse of the process of this court is one which may be exercised with special propriety in the case of for slander or libel brought against judicial officers in defiance* of that rule of abso--luto privilege which has been established "not for their benefit, but for the maintenance of the public interest in the due administration of civil and criminal justice. It ig ordered accordingly that the claim be struck out ?> and the action dismissed. The plaintiff will pay the-defendant the costs of the motion, which I fix at £lO 10s.