HOCKEY CASE

Southland Times, Issue 22475, 10 November 1934, Page 6

HOCKEY CASE

LEGAL ARGUMENT WRIT OF MANDAMUS SOUGHT POINT OF PROCEDURE Preliminary legal argument was heard in the Supreme Court yesterday before his Honour Mr Justice Kennedy in the case in which Phena Guest, spinster, of Invercargill, sought a mandamus that James Holland, enginedriver, of Invercargill, president of the Southland Women’s Hockey Association, should recognize her as honorary secretary of the association. His Honour, after hearing the argument, stated that he would take time to consider the point raised on the question of procedure. Argument on a further issue, namely, whether the executive had power under its rules to dispense with the secretary’s services, has been withheld pending his Honour’s decision on the first point. Plaintiff was represented by Mr H. J. Macalister and defendant by Mr B. W. Hewat.

Plaintiff, in her statement of claim, said that the Southland Women’s Hockey Association was an incorporated body consisting of women’s hockey clubs and sub-unions in Southland. She was duly elected honorary secretary and defendant was elected president of that body. The committee, by resQlution passed on September 26, 1934, at a meeting presided over by the defendant, purported to remove her from the office of honorary secretary and the defendant had since refused to recognize her as secretary or to allow her to act in such capacity. Plaintiff further said that the committee had no power under its rules to remove her from office and that such purported removal was wrongful and inoperative. She therefore claimed:

(a) A mandamus commanding the defendant to recognize her as honorary secretary of the association and to permit her to continue to act in such capacity; and (b) Such further or other relief as the Court may seem meet.

The defendant, in his statement of ejaim, denied that the association was an incorporated body and that the committee had no power to remove her from office or that such purported removal was wrongful and inoperative. As a further defence, he said that the plaintiff, in carrying out her duties as secretary, was negligent, remiss and insubordinate and that the committee rightfully removed her from office. Argument By Counsel. The first part of the hearing was devoted to argument, raised by counsel for defendant, regarding procedure, Mr Hewat asking that the writ be set aside on the ground that the proceedings had been instituted by way of action instead of by way of motion. In the course of much technical argument counsel submitted that* the only relief that could possibly be granted plaintiff was by wav of mandamus and that the only mode of procedure laid down by the Court rules for such relief was not by an action, but by motion, which was less expensive and more expeditious. Counsel contended that the prayer for “such further or other relief” contained in the statement of claim could not be countenanced by the Court as justifying procedure by way of action. Counsel referred to the fact that the action was against James Holland personally and submitted that by action against him plaintiff could not enforce such rights as she might have against the members of the committee. He contended that the Court would not interfere with the actions of an incorporated society unless rights of property were involved; and the plaintiff’s action was but an attempt by indirect means to obtain the interference of the Court in what was purely a domestic matter of the association. His Honour: I suppose the association has rules of the ordinary kind? Counsel: Yes, the association has rules; but I would hardly say that they are of the ordinary kind. His Honour: It does occur to one that a matter such as this might well be settled without recourse to the courts—by holding a general meeting at which the plaintiff could explain her course of conduct. Committee’s Position.

Mr Hewat: The rules vest all powers of control in the committee. The committee, as a matter of fact, is as large a body numerically as that entitled to vote at a general meeting. The suggestion made by your Honour would have taken the matter no further, since the committee would be as large a body as the general meeting. Mr Macalister, replying to Mr Hewat s argument, submitted that the procedure was correct. The Court rules referred to by counsel for the defendant concerned not the relief to be obtained, but purely the relief claimed, and it was, he contended, quite proper to proceed by way of action. There was no authority in support of Mr Hewat s request that the Court should, prior to the hearing, strike out part of the relief claimed. It was recognized as good practice to add a prayer for further relief. As the case proceeded reason for the granting of other relief might arise. If the Court entertained any doubt on this point he would ask leave to amend the statement of claim by adding that the plaintiff was wrongfully dismissed and was entitled to hold office as secretary. He was sure the Court would agree to this. Mr Hewat, in reply, cited authority for his submission that where the statement of claim contained facts which in themselves were not sufficient to entitle the plaintiff to claim relief, the defendant might clearly ask that the case be struck out. It was admittedly good practice to add a prayer for other relief, but only where an action was entitled to be brought. Here plaintiff could not show that she was so entitled. His Honour: You submit that I should set this writ aside because you say it is clear that the action must fail? Mr Hewat: I do not go as far as that at the present moment, your Honour. It could be submitted on an argument of law that the action must fail, but this is not the proper moment to argue this. We say there is an error in procedure.

In conclusion Mr Hewat argued that if the acts of the committee were to be considered by the Court there was a proper method of procedure—by service on each member. His Honour said he would take time to consider his decision on the argument raised. Second Point. Consideration was then given by the Court to a motion brought by plaintiff that the trial of the action stand adjourned until the substantial question of law be first decided, namely, had the committee power under its rules to remove plaintiff from office? Mr Hewat said that he would not oppose the application. The Court’s decision would be convenient because the defendant had pleaded such negligence and insubordination on plaintiff’s part that the committee was justified in dismissing her. The Court’s decision on the law might obviate lengthy evidence. His Honour: The defendant’s allega-

tion, Mr Macalister, is negligence and insubordination for which the committee removed her from office as secretary. Would it not be wiser for her to appeal on that issue to her constituents by calling a general meeting than, to apply to the Court for determination of a mere matter of law?

Mr Macalister: That is an issue that has been raised by the defence and which, it is submitted, upon a proper view of the plaintiff’s claim,, is not relevant. I suggest that it is hardly arguable that the committee had any power under the rules to act as it did. It is on that basis that the action was commenced. The committee, knowing it had no power, has raised these issues, knowing also that in a ■ domestic matter such as this its decision is not likely to be set aside. If your Honour is against me on the rules I would not advise my client to proceed to set aside the committee’s action. It is unfortunate that the matter has troubled the Court, but counsel have done their best to keep it out. I should like to justify my client’s action. She is not coming into Court because she places any high value on the office of secretary. The matter has had rather unfortunate consequences for my client and she has come to Court to put herself in the right. The determination of this question will in all probability settle the action one way or the other and that will be the end of it. His Honour: I shall make no order on this motion until I have considered matters raised on the summons (the point of procedure).