IMPORTANT CASE

Rotorua Morning Post, Volume 3, Issue 704, 2 December 1933, Page 6

IMPORTANT CASE

UNDER TRANSPORT ACT motor co.'s at law INTERESTING ASPECTS DECISION RESERVED • A case under the Tx-ansport Licensing Act, 1931, and the first of its kind in New Zealand occupied the attention of Mr. S. L. Patterson, S.M., in the Rotorua Magistrate's Court yesterday when "K." Motors, Ltd., Rotorua (Mr. M. H. Hampson) proceeded against Newby's Motors, Ltd.., Hamilton (Mr. P. H. Watts), claiming the sum of £50 as general damages allegedly arising from the action of the defendant company in wrongfully operating a passenger service between Rotorua and Hamilton at a time when the plaintiff company was the only company licensed to conduct such a service. The case involved a number of very interesting legal points bearing on the transport regulations and after hearing considerable legal argument on both sides His Worship intimated that he would take time to consider his decision. The period over which it was alleged that damage had been suffered was between August 15, 1933, and October 13, 1933, when it was claimed that defendant company continued to operate their service in spite of the fact that their license had been revoked in favour of plaintiff company by the Transport Appeal Board. It was contended for defendant that although the Appeal Board decision had been made on August 15, the decision had not become operative until October 13 when it was formally put jnto effect by the district Licensing Authority. The question as to whether the act permitted an individual redress for damage at common law was argued at length by both counsel and formed the main basis for the legal argument. History of Services Outlining the history of the transport services betweeji Rotorua andHamilton since the passing of the Transport Licensing Act, Mr. Hampson recalled that "X" Motors and individual drivers named Sparkes, Lee and Young were operating when the act came into force. When these operators came before the No. 3 Transport Licensing Authority Young was not granted a license and it was suggested that "K" Motors, Ltd., take over the opposition in the person of Lee, who was under the aegis of the White Star organisation. Later "K" Motors incorporated Lee, remaining then as the sole operators and as manager for Sparkes. The position remained thus until November 13', 1932, when Newby's j Motors, Hamilton, made application : for a license, and were given permisI sion to rua by the No. 3 Transport ; Licensing. Authority. Newby's coni tinued running until January 16, I 1933, when the Transport Appeal Board sat and revoked this eompany's | license. [ This position remained until Jupe, j 1933, when the No. 3 Authority again I sat to consider three applications for ! the run from "K" Motors, Newby's Motors and Sparkes. Notwithstanding however, the clear indication given -by- the- Appeal Board, and notwithstanding the fact that the chairman of the authority, Mr. Walton, dissociated himself from the decision, the authority preferred to adhere to its original decision and again issued a license to Newby's Motors and refused a license to "K" Motors and Sparkes. Again in August, 1933, the matter came before the Appeal Board for the second time and again the decision was reversed, it being also laid down that the third run carried on by Sparkes was unnecessary. The license, therefore, was given to "K" Motors who, since August, had been the sole licensee on the run. Legal Aspects Mr. Hampson then proceeded to examine the case law on the subject basing his legal argument on the pro"position that the act was framed for the piotection of the general public and of individual licensees, and that the common law right existed for an injured individual to obtain compensation for an injury. He contended, firstly, that an injury had been caused to his client company through the operations of the defendant company and, secondly, that his clients had a right in common law to recover damages on that account. The whole legal aspect of the case hinged round the question as to whether the Statute excluded the common law right of reeovery of an injured person; he submitted strongly that it did not. Here was a case in which one pai*ty was compelled under the terms of his license to maintain a service and was injured by the action of another .party in depriving him of a proportion of his profit. It was unreasonable to suppose that if the first party was compelled to carry out a certain duty under the act, the act would also withhold from him the right of reeovery for injury in common law suffered in the performance of that duty. He submitted further that this was a clear case of unlawful trade rivalry and that as the act did not stipulate that any part of the heavy penalty imposed for a breach, should be payable to the injured party, he must be left a right of compensation at common law. He conceded that the act was designed in the public interest, but contended that it also created a privileged class of individuals in the licensees, who were entitled to protection under its provisions and- to reeovery for damage suffered through illegal trading. Appeal ^5oard Decision Proeeeding, Mr. Hampson pointed out that it had apparently been ruled by the Commissioner of Transport that a decision of the Transport Appeal Board must be formally approved and put into effect by one of the ordinary licensing authorities. This appeared to him to be entirely contrary to all the accepted eonceptions of an appeal board. Surely it must be held that the Appeal Board was the final authority and that when it revoked a license, that license autom.atically became null and void, On

| these grounds he contended that \ Newby's license had been* revoked. . Plaintiffs Evidence Prentice Arthur Kusabs, manag-ing-director of the plaintiff company, in evidence, said that frdfn August 15 when Newby's license was revoked by the Appeal Board until October 13, the defendantV continued to run their service daily. They also advertised the service. Defendant did not know what passengers had been carried, but Mr. Newby had informed the Appeal Board that his taking were over £10 a week. Witness considered that these takings had increased after August 15. On October 10 he had reeeived from the commissioner of transport 'a telegram advising that the No. 3 authority had decided formally to put into effect the decision of the Appeal Board arrived at on August 15. In reply to Mr. Watts, witness agreed that the question of damages largely hinged on the amount of business that had been carried by Newby's. He admitted that he had never taken a note of the amount of business done by Newby. He had seen one car go out with eight passengers during the period Newby was running. He agreed that when the Appeal Board sat it considered an appeal from Newby as well as from "K" Motors. The 10.30 a.m. service was then changed to a 6.45 a.m. service on October 9, which was some time after August 15. He agreed that for some time after this date he was, therefore, running the 10.30 timetable without a license and had not run the 6.45 timetable as the Appeal Board had decided. However, he said that the reason for 'this was because the company was in communication with the commissioner of transport and had continued the original timetable. He contended that the commissioner in this case had over-ruled the Appeal Board. He did not know the reason why the Appeal Board decision was not conclusive in this case. In reply to Mr. Hampson, witness said that the reason for writing to the commissioner was because he wanted to know at what date the actual change was to be brought into opgration. Questioned by Mr. Hampson concerning the number of passengers carried by Newby, George Haymes, manager for "K" Motors said that up to October 15 he observed the number of passengers which had been carried by Newby which was practically double that carried before August 15. Case For Defence Opening the case for the defence Mr. Watts submitted that the plaintiff had not established the existence of any exclusive right to operate but only the bare permission to run the service. He also contended that the 'Statute conferred no right of seeking a private remedy on the part of an individual operator and that, further, plaintiff had established no connection between the alleged breach of the act and the damage he claimed to have suffered. There was nothing in the license which conferred any exclusive right except insofar as the licensing authority did not see fit to issue a license to any other operator. The plaintiff had no right to claim that extra license should not be granted. The bench: He has the right to make representations to the authority. The purpose of the act, counsel contended was to safeguard the public interest in transport matters and not to give advantage to individual operators. The fact that he had the right to a sole license between Rotorua and Hamilton was plaintiffs' good f ortune and did not conf er any rights on them. He claimed that defendants had not interfered with any rights of the plaintiffs in running a service. Newby had not run a service at the same hour as plaintiffs and had not interfered with their right to run at certain hours. No Private Remedy Proeeeding, Mr. Watts dealt with Mr. Hampson's contention that a right of private remedy existed for his clients, and quoted authorities in support of his argument. He contended that there was authority for the contention that the imposition of a penalty in a set of regulations was prima facie evidence that no private remedy to an injured individual was contemplated. He suggested that if the right of private remedy was to be allowed under the act, it could import so many difficulties that this could not have been intended by the Legislature. If Mr. Hampson's contentions were correct, it might equal-' ly be said that the Railway Department had a claim against his company. With regard to the question of possible damage, Mr. Watts contended that plaintiffs would have suffered the same damage if his company had had a license and that the damage was not, therefore, caused by the failure of his clients to have a license. The magistrate : It was Na result of your wrongful act. I hardly think you can show that. In conclusion, Mr. Watts said that he would not call evidence, but would rely upon the non-suit points- which he had submitted. His Worship intimated that he would reserve his decision.