SUPREME COURT

Otago Daily Times, Issue 22908, 16 June 1936, Page 3

SUPREME COURT

INTERESTING LEGAL POINT

His Honor Mr Justice •Kennedy was engaged yesterday morning in hearing a motion by the Mount Cook Tourist Company to have an action by the company against Jack Beaumont Suisted und John Dickinson and Co. (Wellington) removed from the Magistrate's Court to the Supreme Court. The point at issue was whether tho action had already been commenced in the Magistrate's Court.

Messrs D. A. Solomon and E. J. Anderson appeared in support of the motion and Mr J. P. Ward to oppose. Mr Solomon said that the motor company was claiming damages in respect of an accident which had taken place in the Kawarau Gorge between Cromwell and Queenstown. A service car, driven by an employee of the company, had gone over a bank in the gorge and had been severely damaged. It was claimed by the plaintiffs that its car had been forced over the bank by the negligent driving of a vehicle owned by the defendants. There had been two passengers in the plaintiff's car —a Mr Russell, an English tourist, and a Madame Van Tammen, a Dutch lady, who was resident in Java. The plaintiffs maintained that the evidence of these two witnesses was of paramount importance to their case and that it could not be successfully conducted without their evidence. It was of the greatest importance that their evidence should be brought before the court. Counsel said that the affidavits set out in detail the history of the facts in the case. He had been in Cromwell at the time of the accident, and in an endeavour to obtain the evidence of the two witnesses before they left New Zealand he had issued a rush summons in the Magistrate's Court at Dunedin on behalf of the plaintiffs, claiming a sum of £3OO, which was approximately the amount of the damage done to the service ear. It had been impossible to obtain anything like an estimate of the complete damage, and a summons for £3OO, being the full amount of a magistrate's jurisdiction, had been issued against the defendant company in Wellington and on its servant in Dunedin. An intention to defend had been filed by Mr Ward in Dunedin and by Messrs Mazcngarb, Hay and Macalister in Wellington, on behalf of the defendant company's insurers. Counsel went on to relate how he had endeavoured t<s obtain the evidence of Mr Russell in Wellington and how he had .been unsuccessful, but Mr Russell had made an affidavit. The evidence of Mr Russell had not been obtainable, but that of Madame Van Tammen had been taken in Auckland. It had been made perfectly clear to Messrs Mazengarb, Hay and Macalister that if it were not possible to take the evidence of Mr Russell application would be made to remove the proceedings from the Magistrate's Court to the Supreme Court. Ceunsel said that their purpose had been to save the expense of a Supreme Court action. Unfortunately they could not file Mr Russell's affidavit, because it was not headed in the proper manner. He desired to emphasise his point that the evidence taken had been taken without prejudice to the plaintiff's right to remove the acfion to the Supreme Court. Plaintiffs had never waived that right. Counsel quoted from the law to uphold his contentions.

Mr Anderson submitted that the first consideration was whether the Magistrate's Court action had been really commenced. The evidence taken was not evidence at the hearing but evidence taken in advance of the hearing. It was contended that the hearing had not commenced and that there was a right to remove the action to'the Supreme Court. The action was not alone an action by the Mount Cook Company. This was an impending action by Madame Van Tammen, by Russell, and by the driver of the car in which these two people had been travelling. It was submitted that nothing the plaintiff had done had waived the right to remove procedinga to the Supreme Court. If the contention of the other side were correct then they would have to discontinue the action in the Magistrate's Court and start again in the Supreme Court. Counsel also dealt with the law on the point.

Mr Ward said that his clients claimed that they were in nowise liable for the accident. Counsel quoted from the Magistrate's Court Act and contended that the plaintiffs had waived their right of proceedings in the Magistrate's Court and that the motion should be dismissed. Mr Solomon said that the question was whether Madame Van Tammen's evidence amounted to a waiver against the company's proceedings. He contended that "this was not a part hearing of the action.

His Honor reserved his decision