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COURT OF APPEAL.

Thursday, May 20. (Before their Honors the Chief Justice, Mr. Justice Johnston and Mr. Justice Gillies.) HAWKE V. FRETHEY. This was an appeal from a decision of his Honor Mr. Justice Johnston, in an action for the recovery of rates, alleged to be due by defendant to the Greytown Local Board. Mr. Gordon Allan for the appellant; Mr. Izard for the respondent. Mr. Allan concluded his argument upon the first point raised (reported yesterday) by citing the cases Howitt v. Manfull, 25 L.J. Q.B. ; the Governors of Bristol Corporation v. Waitt, 1 A. and E. ; Weaver v. Price, 3 B. and A. ; Bavin v. Hutchison, 31 L.J., Magistrates cases ; Marshall v. Pitman, 9 Bing. The learned counsel then proceeded to quote from the Local Boards Act 1873, which provided that the Superintendent should, upon petition, proclaim, the particular district in which the petitioners resided to be a local board under the Act ; but then, the Act having become applicable, it was an imperative condition (clauses 2 and 8) that there should be a valid election. There could be no board until the members had been duly elected in terms of the Act, and, as in this case, there being no

board, there was no party having power to sue, therefore the plaintiff in this action was bound to fail in the Resident Magistrate's Court. Mr. Izard admitted that the election was void ab initio, but contended that the parties having been returned as a board, the appellant was not empowered to dispute the claim in an action, the proper course being to appeal in the manner provided in the Provincial Eating Act. The learned counsel cited cases in support. Mr. Allan was abont to combat the doctrine laid down in the cases cited, when their Honors agreed that it was not necessary to trouble him further. The Chief Justice, in delivering judgment, said : In my opinion this local Act has not sufficiently provided for saving the Board from the.objection made to its power of suing. In :En.gland and in Victoria the Legislatures have -made provisions to prevent proceedings from ', being invalidated by objections to the irregu- " larity of the election .of members of such Board. On reading the Bth section of the Wellington Act along with the interpretation clause, it is enacted that each Board of Commissioners elected in any district constituted under the Act, shall be a corporation. Therefore, as this Board was not elected according to the provisions of the Act, it does not appear to be "a corporate, body, which can sue and be sued. Several questions have been raised during the argument, _on which it is not necessary to give an opinion. This distinction is to be observed between the English Acts on which the decisions relied on during the argument were based, and this.: . that whereas .under those Acts the duty of the justices in issuing a warrant of ; distress is merely ministerial, it cannot be said that such is the case, with'regard to the duty of the Resident Magistrates under the New Zealand Act. The ministerial character of the justices England lies at the root of all the decisions on English Acts. What the Legislature says on them i 3, that where an appeal is given to the Quarter Sessions the duty of the justice in issuing the warrant is merely ministerial. - - Mr. Jitstice Johnston : T am of the; same opinion. When the'case came before me in the Court below, I certainly thought the sole question was whether the rate was invalid in consequence of having been made by persons who had not been duly elected under the Act, but after hearing the argument of the learned counsel" for the appellant, it appears to me that the question as to the existence of a corporate body, ior person capable of suing and being sued, was not- sufficiently gone'.into before me in the Supreme Court; and I think that although the non-existence of such a corporate body did go to the invalidity of the rate and might possibly have been made a subject of appeal under the Act, yet it is quite competent for Mr. Allan to say " I abandon the ground that this rate is a mere nullity, and I take up the other position,. and say that although it may affect the validity of the whole rate and be appealable matter, yet I am entitled to say that the Board has no right to come into Court as it has no corporate existence." As the learned Chief Justice has pointed out, the question is to be determined by "the reading of the Act, and in order to constitute the Board it is n-cessary that the commissioners should be elected in pursuance of the provisions of the Act. If the question of election had been one which did not go to the whole constitution,of the Board—for instance, if a particular person | had been elected who was not eligible, or Bome such point as that was relied on —the case would have stood upon a different footing, but here the objection goes to the election of the whole of the commissioners, and I think that objection can be relied upon for the purpose of establishing the position—that the Board would have no status in any court of justice, because the members came before the Court neither in their individual nor corporate capacity. • Mr. Justice Gillies : I quite agree with the opinion expressed by my brother Judges, that as no corporate body existed the Board eould not assume the position of plaintiff for the purpose of suing in a court of law. Appeal allowed, with'costs. -*- Mr A'lan asked whether the costs allowed included the costs of the appeal in the Court below, which had been paid by the The Chief Justice replied that costs in this appeal would cover all costs in the suit. The Court then adjourned till 10 o'clock next morning.

Permanent link to this item
Hononga pūmau ki tēnei tūemi

https://paperspast.natlib.govt.nz/newspapers/NZTIM18750521.2.21

Bibliographic details
Ngā taipitopito pukapuka

New Zealand Times, Volume XXX, Issue 4421, 21 May 1875, Page 3

Word count
Tapeke kupu
990

COURT OF APPEAL. New Zealand Times, Volume XXX, Issue 4421, 21 May 1875, Page 3

COURT OF APPEAL. New Zealand Times, Volume XXX, Issue 4421, 21 May 1875, Page 3

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