DEAN AND BISHOP

Sun (Auckland), Volume III, Issue 693, 19 June 1929, Page 11

DEAN AND BISHOP

LEGAL ARGUMENT OVER CLAIM ALLEGATION OF BIAS (From Our Own Correspondent) HAAIILTON, Today. An application to strike out the bulk of the statement of claim was made in the S tip re me Court today by Mr. A. G. Tompkins, acting for Bishop Cher* ington. in which claim Dean Barnett obtained an interim injunction restraining the bishop and his supporters from setting up a commission to inquire i nto the dean's fitness to retain office. r piIIS order was made by Mr. Justice Blair early lasi February. Plaintiff had not applied to set down the motion for hearing at the present session of the Supreme Court, but the defendant made such an application, which was granted by consent. The action will be heard after the present sessions resume, after the sitting of the Appeal Court, in three weeks’ time. In making his application. Air. Tompkins submitted that the only paragraphs that should be left in were the ones which refer to the deatn's appointment, to the setting up of the commission and alleging bias on the part of the bishop. Air. Tompkins said the facts of the case, briefly, were that plaintiff' sought an injunction against the bishop, restraining him from setting up a commission to inquire under a canon of the law of the Church of England in New Zealand as to whether Dean Barnett, the present incumbent of St. Peter's Cathedral Parish, is fit to continue in office. The Dean would be entitled to make certain objections before the commission * and the commission would adjudicate on his defence, but the bishop would have the power ol" veto. Defendant, said counsel, now applied to have the major portion of the statement of claim struck out. as being merely evidence, and as such it did not constitute proper pleading. He held it was merely in the nature of • windowdressing.” M.r. Noel Johnson, for the dean, said while recognising that much of the statement of claim was evidential, it was necessary to formulate a cause of action, and actually this evidence created grounds. Possibly it might have been put more concisely, but the whole thing was drawn up hurriedly, and the matter at the time was urgent. BIAS ALLEGED His Honour: What you object to is the setting up of the commission? Air. Johnson; We allege bias on the part of the bishop, and irregularity in the setting up of the commission, both in its form and in its personnel. His Honour said he had read the statement of claim, and considered much of it to be irrelevant. He supposed the object was to show that the steps proposed to be taken by the bishop were illegal. Air. Johnson agreed that the statement could have been drawn up more concisely. His Honour: Would it not be better for you to reconsider the statement of claim and to decide which paragraphs should be struck out?* Air. Johnson said he did not want to be in the position of having pellets shot through the statement to such an extent as to leave no cause of action. Counsel said he failed to see that the claim in its present form was embarassing to the defence. LEGAL CORRESPONDENCE Air. Johnson then read certain correspondence that had passed between himself and the bishop’s solicitors, which it was urged if certain offers made were not acceptable to the bishop no delay should be made in ftling a defence. Counsel submitted there had been undue delay in filing a defence. He had repeatedly asked for a statement of the defence, but the first reply he received was a summons on Juno 6 to strike out certain paragraphs in the statement of claim. The following day, added Air. Johnson, they had the impertinence—and he said this with all respect—to file a motion in that court for leave to set down the action for hearing. His Honour: Before any defence was filed ? Mr. Johnson: Yes, sir. His Honour reiterated that he had read the statement and was of the opinion that a considerable part was superficial. On his suggestion the case was adjoLirned for two hours to enable Air. Johnson to go over the statement with a view of -agreeing on the portions to be struck out. Subsequently Air. Johnson announced that he had agreed to file an amended statement of claim.