COMPLAINT DISMISSED

Bay of Plenty Beacon, Volume 2, Issue 121, 9 February 1940, Page 5

COMPLAINT DISMISSED

QUESTION OF A PETITION

RATEPAYERS VERSUS COUNTY COUNCIL

When the case of Gilbert Kirkbride versus the Whakatane County Council came up lor hearing before Mr E. L. Walton, S.M., on Wednesday, it Avas stated by Mr C, A. Suckling, counsel for complainant that it Avould be impossible to proceed to a conclusion then as all Avitnesscs were not aA'ailablc. He asked for a hearing of preliminary argument. Mr T. E. Hamerton appeared for the defendant Council. The complaint concerned the erec tion by the County Council of certain gates and cattlc-stops in Kirkbride's Road, to Avhich complainant and four other signatories to the petition Averc objecting, and Avas laid under Section 1 16 of the Publie Works Act. Mr Suckling suggested that Mr Hamerton be heard first and to this the Magistrate agreed. Mr Hamerton said that the Council denied that it had received a petition and tliie denial Avas based on three grounds.

Firstly, Section 146 of the Act. quoted requires a petition and the document presented was not a petition. The document did not contain a request. Secondly, under Section 146 a peti tion, to comply, must show "that gate or anything of that, nature had been erected; In this case it amounted to an objection to proposed erection . Thirdly, the Section requires that a petition be signed by five ratepayers. On the grounds of resentation cne of the latepayers Avho had signed the petition lmd withdrawn his signature, and that left only four. Thus the petition did not comply with Section 146 of I the Public Works Act.

Past or Future

Mr Suckling said that with regard to the first point raised by counsel for defendants, the Section did not specify any form of petition and any thing in writing which substantially conformed could be regarded as a petition. The Magistrate: The Section gives the right for something that has been done to be remedied. Mr Suckling: There was a gate there before. The Magistrate: Your clients object to the erection. Mr Suckling considered that the Section could be interpreted liberally. The Magistrate: You .can't, by liberal interpretation, make the past into the future. Mr Hamerton said that the council's proposals had not yet been put into effect.

"If these men are genuine in their signatures,"* sakl the Magistrate, "what is to stop them signing again? They are objecting to something in the future while the Section gives them the right to have remedied something in the past. According to legislation they are crying before they are hurt."

Mr Suckling contended at this stage that His Worship was reading the future with the word 'erection. Counsel submitted that past should be read with the word, as a gate had been erected.

"The whole sense of the petition is future," said the Magistrate. "I'm afraid I don't favour lechnical objections but 1 can't help it with this one. They started too soon. If the County carries out its proposals, and they ask the Council to remove them and the Council is obdurate, or obstinate, they have the right to come to court. All I can do is to dismiss the complaint."