APPLICATION FOR WRIT

Otago Daily Times, Issue 23829, 8 June 1939, Page 8

APPLICATION FOR WRIT

A CONSTABLE'S CLAIM SUPREME COURT DECISION UPHELD <pEa United Press Association) WELLINGTON, June 7. The Court of Appeal delivered judgment to-day by a majority upholding a grant of certiorari made by Mr Justice Reed on October 14, 1938, quashing the determination made by John Henry Boyes as Public Service Commissioner in respect of the respondent Albert Carlyon. “ I cannot see that a person whose conduct is being inquired into under section 11 of e Public Service Amendment Act, 1927, can be said to have had a full, free, fair and ample hearing when he has been denied in connection with the inquiry the right which Parliament has expressly conferred on him,” said the Chief Justice (Sir Michael Myers) “ The provision in the Statute is a special one enacted by Parliament for the protection of the person affected and to ensure that he may have the assistance of counsel or agent, if he so desires. If then he is prevented by tribunal from exercising his statutory right it seems there is a denial of that justice which Parliament itself has prescribed.”

Mr Justice Ostler and Mr Justice Smith agreed that the appeal should be dismissed. Mr Justice Fair dissented, holding that it had not been shown that the tribunal had exceeded its jurisdiction, nor did it appear that the refusal of an adjournment was the real cause of the respondent being deprived of his statutcrv right or of a full and fair hearing or otherwise being unjustly treated. Costs on the lower scale were allowed Carlyon.

In a reserved judgment delivered on October 14 Mr Justice Reed upheld the application of Albert Carlyon, a police constable, of Pahiatua, for a writ of certiorari against John Henry Boyes, one oi the Public Service Commissioners. “ I am not satisfied that no benefit would result from the writ,” said his Honor in the conclusion of his judgment. “At least it would have the effect of expunging from his record a conviction of insubordination, a serious matter to a man who is back again in his position as a police constable. I think, therefore, in view of the fact that reasonable opportunity to obtain legal advice was refused to the plaintiff and that a disti > t statutory right was denied him, the writ should issue. If the question vere one of balance, I do not think it would be irrelevant to take into consideration the fact that compliant to the advocacy of the defendant a right of appeal was denied to him. There will be an order that a writ of certiorari do issue, addressed to the defendant, with the consequential results as prayed.”