DISMISSAL OF COUNTY CLERK

Taranaki Daily News, 5 September 1921, Page 6

DISMISSAL OF COUNTY CLERK

A CLAIM FOR DAMAGES. DECISION RESERVED. The case in which Frank A. Lloyd (late clerk to the Inglewood County Council) proceeded against the chairman, councillors, and inhabitants of the Inglewood County was heard before Mr. A. M. Mowlem, S.M., at New Plymouth on Saturday. The case had been partly heard at Inglewood and an adjournment to New Plymouth made. The clerk claimed £62 10s (three months’ salary in lieu of notice), and £25 for additional work incurred in getting out the balance-sheet.

Mr. C. H. Croker represented plaintiff and Mr. C. H. Weston appeared for defendants.

Robert Stewart, a county councillor, stated that he, together with the chairman (Mr. Corkill), had interviewed the clerk in reference to the preparation of the balance-sheet, the date, he thought, being April 23. Witness expected that the balance-sheet would be finished by that date, but was surprised when the chairman informed him that it was still incomplete. The chairman asked Mr. Lloyd how long it would be before the balance-sheet was ready, requesting him to give a definite time, but Lloyd seemed disinclined to give any guarantee. The chairman said that if the clerk would undertake to finish the work in 3 days, he (the chairman) would recommend that the clerk should be paid for the work. As the clerk refused to give any guarantee, the chairman also gave no guarantee of payment. To Mr. Croker: Personally, he was very much surprised at the balance-sheet not being ready on April 23. He told the clerk to “play the man” and get on with the work. He denied that the chairman gave any guarantee of payment to the clerk, as the latter would give no guarantee. If Lloyd had finished the work in three days witness would have been in favor of paying him. Lloyd was paid to the 25th April, a fortnight after his dismissal on the 11th was to take effect.

S. Neilson, the present clerk, eaid the late clerk. had books of account in his | possession prior to September as the i accounts had been audited by the Audit Inspector in July. The only books he didn’t have at that time were the books of record from the Valuation Department, Wellington. He knew that Lloyd had an insurance agency, for witness had since cleared up the insurance books kept by the late clerk at the request of Lloyd’s late clients. Witness himself got a slight commission for insurance work*, but had not been officially appointed an agent. Mr. Croker said that he understood arrangements had been made whereby Lloyd was to keep insurance books. He considered that the defence should have brought out any evidence in regard to insurance work when lhe case was heard at Inglewood, as his client was at present in Christchurch and it might be necessary to call evidence in rebuttal. Mr. Weston said he would base his defence on four points: (a) Plaintiff must stand or fall by the resolution of the council appointing him on July 20, 1920; (c) if notice in writing‘of termination of engagement was necessary this was actually given; (e) again, if notice in writing was necessary, it was a condition plaintiff could waive and he had, as a matter of fact, waived it by his conduct ; (d) if His Worship came to the conclusion that plaintiff was entitled to damages, the plaintiff's own evidence showed that he had suffered no damage. In support of the first proposition. Mr. Weston submitted that in making the appointment of Lloyd by resolution of the council on July 20, 1920, the conditions of service were determined. This deed of appointment by resolution thus recorded was for the use of the clerk, who had the only copy. lie submitted that the Magistrate should look to the resolution only. In support of his second point, Mr. Weston cited the case of Chote v. Johnston, in which Mr. Justice Edwards answered the question: What was express notice in writing? Mr. Weston stressed that part of the Judge’s answer. which said: “Knowledge is notice.” The instrument of dismissal was the resolution of the council which Lloyd heard passed at the meeting, confirmed at the subsequent meeting, and which resolution he actually typed for use in the minute-book. This, he contended, was sufficient notice in writing to himself. Counsel submitted several ar horities in support of his third contention, waiving of notice. He said plaintiff, by his conduct, had waived the conditions, either by neglecting his duties and did not give notice, or because he thought it unnecessary to do so. He had further waived by not asking the council for it. In regard to the last point, the claim for damages, plaintiff had been given .three months’ notice by resolution of the council at the January meeting, and his engagement was to terminate on April 11. He had. however, been paid up to April 25, during which time he was engaged on the balance-sheet. Plaintiff admitted he had started work in a new billet on May 2, so if he failed on the second portion of his statement for claim the most he could claim for was for the period between April 25 and May 2, Again, if he succeeded on the second claim, he must fail completely on the first. Plaintiff .lleged that there was no contract—only a contract to pay. Defendant alleged that there was a specific contract. The chairman declared that, after some pressing, Lloyd undertook to do the work in three days, for which he was paid £lO, for the period April 11 to 25. On plaintiff's own admission ho had put in work at the balance-sheet five days before April 11. when the engagement was to terminate. This, in addition to the subsequent extra two weeks, was, he considered, a reasonable time to allow for the completion of the balance-sheet. Under the Counties’ Act, it should have been ready by April 15. The balance-sheet was not quite in order even now. Under the circumstances he thought the payment had been ample.

Mr. Croker said there were two minutes on record, one since Lloyd left, saying that he was a good, conscientious worker and suitable for the position. A document showing Lloyd’s appointment ae clerk, treasurer and rate-collector, had been produced, and, except on account of misbehaviour, Lloyd was entitled to three months’ notice in writing. He submitted that on the facts this notice was not given. The notice should be signed by two members of the council and by the chairman and another member. There was no evidence of waiver before the Court. The Magistrate: “Except by conduct.” Mr. Croker submitted that a waiver of rights must be very explicit and clear indeed. Plaintiff demanded notice in yriting on April 5, The evidence of (

waiver in this case was not sufficient to deprive plaintiff of his rights. He had to break up his home and go to Wellington, whilst his wife and child were ill.

The Magistrate ruled .that this had nothing to do with the case in hand. Continuing. Mr. Croker eaid the council’s resolution of dismissal was liot confirmed till the meeting held on February 8 and notice could not take effect till three months from that date at the earliest, yet the keys were delivered up and the records demanded on April 11, three months from January 11, when the resolution was passed but not confirmed. Even if plaintiff was paid to April 25, he was not county clerk after April 11, but an independent book-keeper, a private individual working for tae council. After his termination of engagement took effect he had been asked to do the balance-sheet and had done so. Mr. Neilson, the new clerk and the principal witness for the defence on bookaccountancy matters, had said that £25 was a reasonable sum to ask. Mr. Stewart, in his evidence, was much nearer to the account given by the clerk than that given by the chairman. On all these grounds he submitted that judgment should be for plaintiff on both claims.

The Magistrate intimated that he would reserve his decision and deliver it at Inglewood next Court day.