A WAGES CLAIM.

Star (Christchurch), Issue 8729, 17 September 1906, Page 3

A WAGES CLAIM.

« : RESERVED JUDGMENT. Reserved judgment was delivered at the Magistrate's Court this morning in the case heard before Mr V. G-. Day, S.M., in which one Drisooll sued the Kaiapoi Working Men's Club for £30, made up of ten weeks' wages* from May to July, -as custodian of the club. The judgment stated that the plaintiff had been elected custodian on July 19, 1901, in accordance with Rule 8 of the club,' which provided that the custodian should be elected annually. Since that date there had been no election of custodian, but the plaintiff had remained in office, paid by the club, until May 2, 1906, when he had been dismissed by the committee, and was paid one week's wages in lieu of notice. The action had been brought by hin* to recover ten weeks' wages, calculated to the end of the then' current year. At the close of the plaintiff's case he (the Magistrate) had stated that he was of opinion that, the plaintiff should be nonsuited, as it was admitted by him that all the wages due up to the time of his dismissal had been paid. Counsel for the plaintiff had then asked leave under Section 98 of the Magistrate's Court Act, 1893, to amend the claim by adding an alternative claim for damages, and the case had been adjourned for argument in Ghristchurch. In support of the application 1 for,, amendment, Mr Russell had Quoted several English cases decided under the County Courts Acts, and also irad*"* the Judicature Act, together with several cases in New Zealand, decided under the Supreme Court rules. Unfortunately, not one of these cases was applicable, as Section 98 of the Magistrate's Court Act, 1893; had at. the end of tho section, the following words :.• — " But nothing herein, shall be deemed to authorise the substitution of one cause of action in the place of another," which words did not appear either in the County Courts Act or in the Rules of the Higher Courts in England or in the Rules of the New Zealand Supreme Court. Had it not been for these concluding words of Section 98 he should have had no hesitation in allowing the amendment. So faT j»s he could ascertain, the case of " Te Aro Loan v. Cameron, >14 N.Z.L.R., 417," was the only reported case where Section 98 had been discussed. Mr Justice Williams, in giving judgment, expressed doubt upon the effect of the section, but did not decide the point. He said : " The evidence showed that the defendant was indebted to plaintiff company in the amount claimed, though possibly not in covenant. It may be that this Section 98 of the Magistrate's Court Act would prevent the Magistrate from giving judgment if a simple contract debt only were proved. If that- is so, it would be a great misfortune; but I am certainly not prepared to decide that such is the law." In the present case there was no need for the point to be decided, as the appeal was allowed on other grounds. <f A course of action" was denned by Esher, M.R., in " Read v. Brown, 58 L.J.Q.8., 120," as "the entire set of facts that gives rise to an enforceable claim ; the phrase comprises every fact which, if traversed, the plaintiff must prove in order to obtain Judgment." In "Moore v. Cony, 9 N.Z.L.R., p. 88," the plaintiff claimed £128, balance of £400 lent and repayable on demand, to which the defendant pleadevl a parole agreement making repayment conditional. The plaintiff then filed an amended statement of claim claiming the identical sum on a promissory note for £400, repayable on demand. In giving judgment on an application to strike out the amended statement of claim, Mr ■■ Justice Richmond ©aid: v " The plaintiff cannot hold judgment on both the claims; they are really alternative causes of action aad not a new and different cause of action, and therefore the plaintiff may make the amendment." The learned Judge spoke of them as " alternative causes of action," and not that they were the same cause of aotion. That case was decided under the Supreme Court rules, which lacked the concluding sentence of Section 98. The present case was, h& thought, different, as the original olaim was for wages, and the amendment asked for was to add a claim for damages for wrongful dismissal. The causes of action were absolutely distinct, as the set of facts necessary to support the one would not support the other. The plaintiff was nonsuited, with costs. Mr Russell appeared for the plaintiff and Mr Harper for the defendant club.