CLAIM IN COURT FOR WORK ON STATION

Wanganui Chronicle, 30 June 1948, Page 8

CLAIM IN COURT FOR WORK ON STATION

THE HEARING RESUMED SLIPS ON HIGHWAY DELAY ARRIVAL OF WITNESSES. Because two witnesses were delayed by slips on the WanganuiKaetihi Highway, the I.faurg of a civil case in the Supreme Court, Wanganui, adjourned from the May sessions, could not be resumed yesterday afternoon, as scheduled and the Court was adjourned fill 10 a.m toc'ay. The case concerned is the combined hearing of two civil actions arising out of a dispute over payment for carpentry and (minting work carried out at Kahura Station,, 58 miles up the Wanganui River. After extending over four days, the case was adjourned on May 22, when Mr. Justice Cornish left for New Plymouth, where he presided over the quarterly sessions in that centre. He was subsequently engaged on the Court of Appeal and a fixture for the Wanganui case was made for 2.15 p.m. yesterday, but when the Court sat it was stated that the witnesses for the defence had been unable to reach Wanganui because of slips on the Para para Road. A suggestion was made that the afternoon be used for legal argument on the question of illegality of the claims, raised by the defence. This was opposed, however, on the ground that ttie evidence had not been completed, and after hearing submissions His Honour adjourned the hearing till this morning. Vernon Brothers, carpenters, Wanganui, for whom Mr C. N. Armstrong is appearing, are claiming from Alexander O’Neill, farmer, £571 16s 8d for work done and materials supplied. In the second claim, C. A. Campbell and Co., Ltd., painters, Wanganui, are claiming £338 for work done, defendants being Alexander O’Neill and Vernon Bros. Mr. B. C. Haggitt, with him Mr. J. S. D. Tizard, is appearing for, C. A. Campbell and Co., and Mr. R. G. Palmer for Alexander O’Neill. “In view o£ this hold up, what is lhe position to be?” asked His Honour when the case was due to resume yesterday afternoon. Mr. Palmer said that the defendant, Alexander O’Neill and .his son, who were required as witnesses that afternoon, had left home at 8 a.m., but found that the Wanganui-Raetihi Highway was blocked by slips, about 20 cars being held up. They returned to their home and left again at 1 p.m. by the alternative route to Wanganui, via Taihape, having ascertained that the road was reported to be open, though not in a good condition. Taking this route meant a trip of 140 miles, and the parties were due to reach the city at 6.30 p.m. They had been asked to come as quickly as as they could. Counsel added that in the meantime the Court may care to hear legal argument on the question of illegality of the claims which had been raised as an alternative defence. His Honour: What is the effect of the plea? Mr Palmer: If it is established both actions must be dismissed. His Honour referred to the evidence of Alexander O’Neill, which was taken before the hearing was adjourned on May 22. O’Neill had then stated that certain work was done and that he had always been willing to pay a reasonable amount for it, and was still willing to do so. Mr. Palmer said that O’Neill was prepared to pay for the work, but on his own terms. His Honour: If he wishes to pay for the work, is it not rather superfluous to raise the question if illegality? I take that if he succeeded on these grounds he would make a payment of what he thought was right? Mr. Palmer: That is so. His Honour: Does that mean reasonable terms? He adopts the plea of illegality as a shield to the merits of the case. Mr. Palmer: Yes. The whole case is that he has adopted the defence of illegality purely as a defensive weapon. Mr. Haggitt said he objected to the legal argument being heard at this stage. The plea of illegality was an alternative defence which must be proved by the evidence of the defendant, Alexander O’Neill. If would not be fair to his client, Mr. Haggitt added, to allow the argument to be heard before the evidence was closed, because this would possibly give defendant the right to call additional evidence to close gaps in the evidence supporting the allegations. Mr. Palmer: My evidence is complete now and I will give an undertaking that I will not call any further evidence. My contention is that in our evidence already given illegality has been shown. After His Honour had suggested that in view of this undertaking, the Court might proceed with the hearing of Igal argument, Mr. Haggitt said that he must continue to raise liis objection. The evidence had not been closed and two witnesses had still to be called by Mr. Palmer. His Honour: Do you move lor a non-suit on the illegality question? Mr. Haggitt: No, sir. I ask for judgment for Campbell. Mr. Palmer said that Alexander O’Neill had already given his evi-dence-in-chief, and had yet to be cross-examined when he appeared in Court. "My friend is the better judge than I as to whether this gap will be filled,” Mr. Palmer added. His Honour suggested that the argument could be taken, and the interests of Mr. Haggitt’s client protected. Mr. Haggitt: I must object to argument being taken now. I feel that even if it is possible for my client to be protected I must object. Mr. Armstrong said that Vernon Bros, were not as concerned as Campbell and Co., Ltd., on the question of illegality. Having produced a Price Tribunal approval in Court, plaintiffs considered that the allegation of illegality did not apply. His Honour said that if counsel were not in agreement it would be better if the legal argument were not heard at this stage. "I do not believe in parties giving an undertaking, when sometimes, through no fault of their own, it is not kept,” His Honour added. The hearing was adjourned till 10 a.m. today.