SUPREME COURT.

Taranaki Daily News, Volume XXIII, Issue 231, 11 October 1901, Page 2

SUPREME COURT.

J IN BANCO. | | Thursday,October 10th.—Before His. 'i Honor Mr Justice Gonolly, THE COMMONWEALTH HOTEL CASE, I The hearing of the application for ' certiorari to quish the 1 cense granted to Jeremiah O'Driscoll for the Oom-. monwealth Hotel was resumed on Thursday morning. Mr Atkinson appeared ia support of the application, and Mr Skerrett {with whom was Mr Weston) opposed it. Mr Skerrett in his reply to Mr Atkinson's argument pointed out that Mr Frethey, who moved in the matter, had no property interests near tho hotel, nor did he reside in the neighbourhood. Mr Frethey simply came forward in the matter as a prohibitionist, who only desired to cancel all publicans' licenses in New Zealand, The motion was not brought forwaid by the' public nor for the public. He referred to the fact that the letters on which allegation one was based were known at the outset to Mr Frethey, who was joined with Mr Gaukrodger and others in the memorial before the Licensing Committee. His Honor said the had been called up -n to fight three battles, and there was no imputation that he was 1 carrying on the house improperly. Mr Skerrett said there was no doubt that the expenses over tho matter were becoming ruinous. He contended that the cases quoted by Mr Atkinson on ' Wednesday were totally irrealevant to the present issue. Mr Skerrett then : quoted English cases in which it was clearly set down that a judge must 1 have a substantial interest in the proceedings to create bias. There was no , such allegation of interest in the pro- ' ceedingx in this matter. In the i!ase nf the Wanganui Licensing Committee , in 1891 it was held iu thst case that 1 three tempetance candidates for the j committee bad given a pltdge before ; election t« reduce thn licenses in the i ratio of 1 to 350 of population. In this matter the Supreme Oourt held - that the plodg* did not disqualify them - from »cting. So in the present case a ' committee eould express the opinion , that another license was required in , the interests of the public. In the ; Sydenham Committee case the caudi- ' dates had stated that they would closo ; all hotels irrespective of the wants of 1 of the public, and in that case the ■ finding was against the committee on 1 tha grounds of distinct bits that did [ not effect the Wanganui case. He I pointed out that the procedure adopted • and the state of the law, which had been confirmed by the Full Oourt, . practically excluded competition against j the holder of the Bell Block license for a new license in New Plymouth. He then d6alt with the correspondenc > ■ on which the first allegation was based, ; and said there was nothing in it that ! could be construed into bias, and no- \ thing beyond what Mr Stanford was i entitled to do under the law. The - other Wo applicants for the license | were not parties to any of thes? pror ceedings, but only persons who had do j appreciable interest in the matter, - except on tbegrounds of takiogon them- ■ selves to interfere in other people's affairs As to the allegation of pecuniary bias, . the question was: Was there a real f pecuniary bias on Mr Stanford's part i in consequence of his pecuniary rela- • tions with Mr Mcintosh? He sub--1 mitted that either the transaction was ' an ordinary one, in which Mr Stanford i was granted a sum of money on ordins ary security—in which case there could ' be no suggestion of pecuniary bias—or r there was a l6an from Mr Mcintosh in I anticipation of the grant of the license. ; He contended that the evidence showad - there was ample security for the advance, as was also shown by the isct that the mortgage was taken over by J another person, j His Honor: Further than that, the j mortgage was taken over by Riddel, , who was a money lender by profession, 1 Mr Skerrett: Before < he lapse of the r Village Inn license was mooted or I another license thought of this trans- ; action was completed, The contention i raised would amount to this; Every \ mortgagor would be precluded from j sitting on a jury in a case where the - mortgagee was concerned. f His Honor : I do not think you need press that part of your argument, j Mr Skerrett: I will not do so bej yond saying that there was no reason 1 for any obligation by Mr Stanford to Mr Mcintosh, the terms of advance ' beiDg very ordinary. 1 His Honor: The terms were very I hard, 1 think. ■ b Mr Skerrttt: The reason probi ably that Mr Stanford desired only a six was that the arrangement was temporary, as he would doubtless be able to get better terms. However, he (Mr Skorrett) would go no further into that ) matter. b His Honor : That part should have i been left out. It is simply scandalous, i. Mr Skerrett then quoted a digest rel lating to bias, and submitted that i there was no disqualification in law against the magistrate adjudicating on . the matter; but as a matter i of delicacy and good tiste s magistrates did not try cases in which s they were interested. When a tribunal . was biased—and that tribunal was the . only one to determine a matter—certiorari would not lie, as to grant . certiorari under such circumstances [ would be to deny the subject justice. > Tho present case w.-«s not put as one of : uctual bias, but as a likelihood of bias. ! His Honor: Mr Atkinson did not [ abandon the ground of actual bias i Mr Atkinson : No, the letter covers ' the third and fourth grounds Mr Skerrett said that if the license ) were quashed Mr O'Driscoll, who had ; done no wrong, would be denied justice. Tho last paint he raisod was tha". the writ was only grantible if his Honor thought the ciroums'ancos warranted it; as an act of justice. His Honor: Supposing I grant thi« i application, what would ba tho result ? i Merely to shut up the hotel, ruin the i licensee, and benefit no one. I must , describe the case as I did yesterday as a very malicious one. . Mr Skerrett submitted that tho writ ought not to ba granted. Only two : grounds of objection were in the Oourt below. The first was that the hotel was not required. That was decided by the magistrate on the evidence, i The other ground was that the license was not rightly removed. That was settled by the full Court, He quoted a case to show that justices sitting as a 1 licensing committee were not acting in a judicial but in an administrative : capacity, and therefore their decision ! could not, be effected by certiorari. His Honor: You might well have raisod that point as a preliminary objection. Mr Atkinson, in reply, said that he took the full responsibility for tha form in which the application was mado, and thoreforu he relieved his client, a layman, of all blame. With'

regird to hi* Honor's remarks that Mr! Frethey was a " husy-b.idy," he quoed j j authorities to show that his client had ' _ j a statutory authority to make the ap- , I plication. _ ] His Honor: That is not disputed. |, | There are many things a man has aI j [ right to do but that some would not j ( do. ] Mr Atkinson quoted cases to show ( that an aggrieved person had a s'atu- •, . tory right to move for certiorari. j His Honor: I have already said that • Frethey is within his rights, and if I find that in strict law he is entitled t>; I tbe wr 11 shall give it, irrespective of ■ my opinion of his onduct. , Mr. Atkinson said he was only bona • fide endeavouring to put before his ( Honor the difficulties of the cise. , With regard to bias on the ground of j pecuniary interest be pointed cut that ( the hard terms of the mortgage im- , plied that the rink was considerable. \ He then dealt with the qbjection raised | that there was no evidence of intention to obtain the license when the loan | was raided. He quoted the case of ( Regina v. Hay. , His Honor: TJnfortuuately that case ( is not here. I shall have to look into | that and other cases before giving ray , decision. Owiag to the large number , of cited I shall not be able to give , judgment here. I, Mr Atkinson said th t supposing, for instance, a solicitor or a litigant had guaranteed a magistrate's bank , overdraft, would it be fair for the , latter to adjudicate upon a case in j whioh his guarantor was interested? ] He pointed out that so far from there , being a year's interval between, tbe , promise and the loan transaction as his Honor had at one time supposed yesterday, the promise was made on the , 23rd August, 1900, aod the first ad- . vanca of £IOO on the 25th of the same { month. There was then no building on the ground at all, and when the , whole £9lO was advanced aod the mortgage given, only £9OO had been expended on the security. As to the letter, he admired Mr Skerrett's ingenuity in suggesting that it amounted to nothing more than the expression of a pious opinion that, as then advised, Mr Stanford considered another licensed house to be required in New Plymouth. It was urged that the latter was not a promise to any individual, but seeing that it was a reply to a letter avowedly writ'en on Mr Mcintosh's behilf, it must be taken as written for his benefit, and amounting to a definite promise to grant a license to Mr Mcintosh or his appo'ntee, subject only to the conditions named in the letter. The rights of objectors, tbe claims of other applicants, with better qualifications or better buildings, the requirements of other neighbourhoods were all ignored, and the question determined against tbem 10 moqjibs in advance of the hearing in favour of a particular site and a particular man. If the lettor was a mere general expression of opinion, why was it not delivered from the Bench, or advertised in the Press, so that other applicants had an equal chance? Mr Mcintosh baing wis« had kept the secret* to himself, and bad ' herefore reaped the sole benefit of it i as he meant to do. He had probably , kept that letter in his safe as worth a lot of money, and Mr. (yDriscoll if be i was a wise man had doubtless also seen ( it and satisfied himself of his meaning t and validity before negotiating with ; Mr. Mcintosh. It was a definite judi- . cial undertaking by Mr. Stanford, an . ante-dated judgment, given without i " hearing both sides, or listening to I Bworn evidence" as a committeeaci cording to Hamilton and Fraser was 1 bound to do. In cinclusion Mr. Atkinson submitted that the question for his Honour was of far more importance than the claims of 100 licensees or 100 fanatical" bus; bodies," It was the question of the purity and independence of judicial administration in this colony. The Courts bad been wisely jealous on this head and hi* Honor, though he had not once referred to it and had directed all his remarks during the case against the applicant, must be taken to share this jealousy. In Regina v. Ferguson the Oourt said the question was not whether the justice impeached had decided rightly, but whether it was consistent with the maintenance of a due respect to the administration of justice chat his decision should be allowed to stand. The i same vastly important question was involved here and he now left it in his . Honor's hands. i His Honor said: I have very little i doubt what my judgment will be in i this case, as I have already intimated that tbe application has failed ou the points. It would not, however, be right for me, where so many cas's hive . besn quoted, to give an opinion off , hand, as I would prefer to look into the . cases and statutes before giving judgi ment. If I find time during my visit . to the Oourt of Appeal at, Wellington ; I will give judgment there; if not there I will d liver it on my return to Aucki land. Mr Samuel mentioned the appeal . case of Johnson, appellant, and Fin- ; tham, respondent, and stated that the r appeal had been waived. , Aft»r some remarks ai to costs by ■ Mr Weston, who appeared for the rei spandent on behilf of Mr Welsh, his i Honor gave judgment for the appellant [ with full costs. I i The amount involved in the case was' . £73. . | ; Mr Weston mentioned a case in i which he and Mr Roy were to appear, but which they wtro not prepared to go •on with. The case was somewhat important, involving, as it did, tfcei i riparian rights of property owners on the banks of streams, and the powers I ; of local bodies, under the Publio Works! Act, to prevent the removal of metal I from river bed?, ' His Honir said ho would nrranga a I date on which he could take the rase, i This concluded the business, and the' Court rose.