CHANGE NEEDED.

Star (Christchurch), Volume LXIV, Issue 829, 1 August 1933, Page 7

CHANGE NEEDED.

Judge Discusses Lower Court Rules. A COMPLICATED POSITION. In a judgment in a motor collision case in which two drivers were sued in the Magistrate’s Court, and an appeal made to the Supreme Court, his Honor, Mr Justice Blair, states that the rules of the Magistrate’s Court concerning the joinder and misjoinder of defendants are in need of amendment. The judgment reads : “ The main question raised in this case is a question of joinder, and this point is of great importance in proceedings in the Magistrate’s Court. Indeed, if there was misjoinder in the present case, then it is clear that the rules under the Magistrate’s Court Act need amendment, and until the rules are amended it will be imperative for a plaintiff seeking a remedy in tort against one of two possible defendants to commence proceedings in the Supreme Court and not in the Magistrate’s Court. In the Supreme Court the difficulty does not arise because Rules 59 and 61 provide for the position. “ In the Magistrate’s Court the matter of joinder is dealt with by Sections 53 and 54 of the Magistrate’s Court Act, 1928. These provisions are identical with the County Court rules in England, as they were when Carter v. Rigby (1896) was decided. That case followed the decision of the House of Lords in Smurthwaite v. Hajinay (1894). Both tho.se cases were cases of joinder of plaintiffs, but Lord Hersheli in the latter case points out that the said interpretation would apply to the position of the rule similar in terms applicable to joinder of defendants. Mr Sim for respondent did not dispute that these cases apply in the Magistrate’s Court. Edwards J. m Williamson v. Auckland Electric Tramways decided on the Supreme Court rules before they were amended that claims for damages against more than one defendant in respect of torts ipdependently committed could not be joined. . .

“ As a consequence of these decisions the rules in the Supreme Court were altered as they now appear, but there being no similar provision in the Magistrate's Court the difficulty created fcy those cases applies to proceedings in the Magistrate’s Court. This matter calls for immediate correction by an amendment to the Magistrate’s Court Act. In the result there has been a misjoinder as to one or other of the defendants. Both could not be sued in the same proceeding. If the point had been taken at the hearing in the Magistrate’s Court the plaintiff would have been put on his election as to which of the defendants she proposed to retain as defendants, and the other would have to have been discharged from the action. The matter of misjoinder is one of procedure, and could be waived. Cases could arise where the parties might prefer that instead of resorting to the Supreme Court the action be taken in the Magistrate’s Court on the score of expense.”