MAGISTRATE SUED

Poverty Bay Herald, Volume LV, Issue 17411, 8 November 1930, Page 15

MAGISTRATE SUED

CASE STRUCK OUT FRIVOLOUS AND VEXATIOUS ALLEGED SLANDER IX DECISION Proceedings of an unusual nature were heard in the Supreme Court in Dunedin on Thursday, when the Crown made application, before Air. Justice Kennedy, to have struck out, on the ground that it was frivolous and vexatious, all action brought against James Rankin Bartholomew, S.AL, by John Frederick Haimnorley for damages of £75 for alleged slander. Air. F. lb Adams appeared in support of the motion, and Harnmerley appeared on his own behalf.

Mr. Adams claimed that the words set out by tlm plaintiff in the statement of claim were uttered by defendant in the exercise of his judicial duties. Learned counsel quoted a case in support of his contention that defendant had absolute privilege. The action was merely an attempt to get away from that rule, and it was right and proper that it should be struck out. There was a. further ground in respect to the time in which the action was commenced. Plaintiff alleged, slander on February 12, which meant that the action should have been commenced by August 12. That bad not been done. The court was asked, however, to deal with the application upon the substantial ground that defendant was immune from liability, and that it was vexatious and improper to subject him to the action.

Mr. Hammerley said lie did not doubt that the .magistrate used the words of which lie. complained, in his judicial capacity, but be contended that the magistrate exceeded bis duty. The words spoken were published in the press and read all over New Zealand. When the magistrate said that he was a man who had no control over himself, the magistrate was wrong. He was amenable to legislation and was not, an irresponsible, but exercised the control over himself that normal people exercised. In regard to the time limit, lie claimed that a letter which be wrote to Mr. Bartholomew on July 7 gave notice of what was coming. Mr. Adams said the magistrate stated the words used were really in mitigation ns a reason why a heavier penalty should, not bo imposed. There was no intention to injure Hammerley in any wav whatever. HnmmerleV contended that bn bad bomii iniured bv the words. His Honor said the court bad jurisdiction to dismiss an action on the grounds of the present application, but such jurisdiction was sparingly exercised, and only in* very exceptional cases. lie was of opinion that this was a case in which the jurisdiction should he exercised. There could he no dispute about the fads,’ which were in plaintiff's statement of claim and in a letter written by plaintiff to defendant. In convicting Hammerley of behaving in n disorderly manner in a public place, the magistrate used the words in respect to which damages were asked. There rmdd be no doubt the words were spoken in open court by the magistrate in exercise l>v him ol bis judicial functions as a Justice of the Peace. His Honor made an order that Hie statement of claim be struck out and the action dismissed. Costs of lOgns. were allowed against Hammerley.