THE UEENSLAND LAW REPORTER. DECEMBER, 1908. The plaintiff applied to Cooper C.J., on summons, to have these paragraphs struck out of the defence. as unnecessary and scandalous, and the application was dismissed with costs. From this order the plaintiff appealed, on the grounds that the order was contrary to law, and that he was entitled to have the paragraphs struck out of the defence. O'Rourke, for the appellant: The allegations in these paragraphs are scandalous and unnecessary. They raise no defence to the action, and should be struck out. O. XXII., r. 32. [REAL J. Is not your remedy by demurrer ?] The terms of O. XXII., r. 32, are very wide. Annual Practice, 1908, p. 266, et seq.; O. XXII., r. 27 ; O. XXIX., r. 2; Burstall v. Beyfus (1), Paton v. Zerbe (2). Hart, for the respondent: The paragraphs raise a defence to the claim for wrongful dismissal, and are material. Clouston & Co., Ltd. v. Corry (3), Hubbuck & Sons v. Wilkinson, Heywood & Clark (4), Pearce v. Foster (5). O'Rourke, in reply, cited Blake v. The Albion Life Assurance Society (6). The judgment of the Court was delivered by REAL J. Applications of this nature to strike out pleadings are in England usually made in the first instance to a Master in Chambers, but under our rules they are made to a Judge in Chambers, who, if he finds that any serious question of law is involved, would probably refuse to dispose of the matter on such an application. In dealing with these applications, the Judge is exercising a discretion, and this Court will not in general interfere. In this case, it is, however, more convenient that we should consider the substance of the matters involved in these paragraphs, for the amount sued for is small, and it would be a great pity that extra expense should be occasioned by refusing now to deal with the application, which subsequently, no doubt, would again come before us in a proper form. We will therefore consider the matter (1) 1884, 26 Ch.D. 35. (2) Brisbane Courier, 19th March, 1895. (3) [1906] A.C. 122. M as if it had been brought (4) [1899] Q.B. 86, at p. 91. (5) 1886, 17 Q.B.D. 536. F. C. BULMER V. THE Real J. F. C. BULMER V. THE OAKEY Real J. before the learned Chief Justice in the form of an application to strike out on the ground that the statements contained in these paragraphs of the defence form no defence or part of a defence to the action. We are of opinion that allegations as to the plaintiff's conduct are material on the question of his fitness to occupy the position from which he has been dismissed. The part alleging that the plaintiff was connected with a grave racing scandal at Dalby, in this State, is used in a sense that he was involved in this scandal in a manner discreditable to himself, and is material with respect to his fitness to hold his office. But the other allegations in the paragraphs have reference only to what certain other people did and thought in regard to the alleged conduct of the plaintiff, and cannot in any way affect the right of his employers to dismiss him. We therefore order that that part of paragraph six after the word "State," and the whole of paragraph seven, be struck out. The defendant is allowed liberty to amend as he may be advised. The costs of the proceedings, both in Chambers and in this Court, will be costs in the cause, both parties consenting. Solicitors for appellant: Crouch & Darvall, for Eden & Groom, Toowoomba. Solicitors for respondent: O'Sullivan & Scott, for W. J. [IN THE FULL COURT.) In re HAMLET. Workers' compensation — Application for hearing in a Petty Sessions District other than that in which the injury happened -Regulations under the Workers' Compensation Act of 1905, reg. 89-"Not practicable" to file application for hearing in district where injury happened-Special case raising question of law concerning the interpretation of reg. 89 stated before the hearing of the claim for compensationJurisdiction of Full Court to entertain-The Workers' Compensation Act of 1905 (5 Edw. VII., No. 26), s. 5. A Police Magistrate has no power, under s. 5 of The Workers' Compensation Act of 1905, to state a special case on any point of law until some question has arisen concerning the liability to pay compensation or the amount or duration of compensation payable under the Act, and therefore the Supreme Court refused to entertain a special case which raised questions concerning the legality of the granting of consent by a Police Magistrate to the filing of an application for the hearing and determination of a claim under The Workers' Compensation Act of 1905, in a district other than that in which the injury happened. SPECIAL CASE. In January, 1908, a workman named Hamlet sustained an injury to his knee while he was in the employment of Messrs. A. H. and E. Young. The locality where the accident happened was situated within the Petty Sessions District of Bundaberg. Notice of injury was sent by post twelve days after it occurred. Immediately after suffering the injury, the workman was treated at the Bundaberg Hospital, but shortly afterwards he left for Gympie, and became a patient of the hospital at that place, where he remained for over two months. No claim for compensation was served, but leave to proceed was granted by the Police Magistrate at Bundaberg on 24th July, 1908. Cf. The Workers' Compensation Act of 1905, s. 9, and reg. 9, et seq., made thereunder. On 5th August, application was made to the Police Magistrate for his consent to the filing of an application for the hearing and determination of the question of the liability of the employers to Hamlet under the Act with the Registrar 1908. September 4. Cooper C.J. Power J. F. C. of the Small Debts Court at Gympie. Cf. reg. 89 and reg. 1. This application was supported by an affidavit of the worker, in which it was stated that all his witnesses, amongst whom two medical practitioners were included, resided in Gympie; that, on account of his poverty, it was impossible for him to pay the expenses of taking these witnesses to Bundaberg, and that therefore it was not practicable for the hearing to take place at Bundaberg, and the matter could be more conveniently heard at Gympie. The employers objected, and stated by affidavit that they had six witnesses, all of whom resided near Bundaberg, and that the worker, in the event of being unsuccessful in his action against them, could not pay the expenses of these witnesses or the costs incurred in defending the action. They also offered £12 towards the worker's expenses of bringing his action in Bundaberg, on the understanding that this sum should be deducted from the amount (if any) recovered as compensation. The Police Magistrate gave consent to the filing of the application for the hearing with the Registrar of the Small Debts Court at Gympie, considering that the poverty of the worker and the fact that his witnesses resided in that place, rendered it impracticable for the worker to bring his action in the district within which the injury happened. But he stated a special case for the opinion of the Full Court, raising the following question of law :-(i.) Does reg. 89 of the Regulations of the 2nd July, 1908, made in pursuance of The Workers' Compensation Act of 1905 apply to the circumstances of this case? (ii.) In deciding whether or not it is practicable for an applicant to file an application to hear and determine a claim under the said Act in a district other than that in which the injury happened, are the circumstances of the individual applicant to be considered, or is the fact of whether or not there is a Police Magistrate's Court in the district in which the injury happened in which the said application can be filed and heard and determined to be considered? (iii.) Is reg. 89 ultra vires in so far as it purports to have retrospective effect? This case came on for hearing before the Full Court on 4th September, 1908. In the meantime the appellants, recognizing that some doubt existed as to the proper mode of appealing from the order of the Police Magistrate, obtained an order nisi for a prohibition returnable at the October Sittings of the Full Court by which the same questions of law were raised. Lilley, for the appellant. E. A. Douglas, for the respondents, raised a preliminary objection. Appeal by special case to this Court is not an available remedy. The right of appeal in this way is conferred by s. 5 of The Workers' Compensation Act, and is only open in the cases therein mentioned. In the present case, no question of liability to pay compensation, or as to the amount or duration of compensation, is involved, for no claim for compensation has been heard by the Magistrate or even filed. It may be that when the claim is filed the worker will claim only £25, in which case no appeal lies without the consent of the Magistrate. An application for leave to proceed is not a proceeding under the Act; it is merely a notice or demand. There may be some remedy, but it is not by way of special case at this stage. Lilley Some doubt has been felt as to whether the proper course is by way of special case under s. 5, or by application for prohibition, owing to the fact that this regulation is peculiar to Queensland, and has not, as yet, received judicial interpretation. The Act seems to contemplate that all questions of law arising in regard to workers' compensation should be settled in the convenient and inexpensive method provided by s. 5. The notice shows that the claim will be for more than £25. Per Curiam: The Police Magistrate had no power to state a special case under these circumstances, and this Court must refuse to entertain it. The question of costs will be reserved for the Court which hears the motion for prohibition.. Judgment accordingly. Solicitors for appellant: Morris & Fletcher, for Hamilton & Nielson, Bundaberg. Solicitors for respondents: Chambers, McNab & McNab, for Power & Pack, Gympie. F. C. In re HAMLET. |