CHIEF JUSTICE DISSENTS

Evening Post, Issue 47, 23 August 1935, Page 10

CHIEF JUSTICE DISSENTS

The Chief Justice, in his dissenting judgment, said that the real question to'be determined' in the case in his opinion involved something much more important and much more far-reacliing than .the mere, right to promote, hold, or engage in what was. known as. a "wrestling contest." To his mind there was involved the ' application, of' the fundamental principle that a statutory enactment: should not be-so construed as to derogate from .the common law rights of the subject unless such derogation was expressed "in apt' language* or was to;be deduced as a matter of necessary implication.

It was sought by the SolicitorGeneral, continued his Honour, to place a wrestling -contest-in very /much the same position as a prize fight. There was, .however, in law a: fundamental difference between the two. A prize fight.at common law was, like duelling, illegal per.se. In New Zealand, ever since the enactment of the Criminal Code Act, 1893, common law offences had been abolished, but the illegality of a prize fight, was: therein declared by section 114 of the Crimes Act, 1908. Neither, the Criminal Code Act, 1893 (N.Z.), nor the present Crimes, Aqt, 1908, referred in any way to wrestling contests.

While a wrestling contest, or for that matter a boxing contest (as distinguished from a prize fight)—for the two were on the same footing—was per se in his opinion quite lawful at common. laWV;he appreciated of course that such a contest by reason of the conduct of either of the contestants or the spectators might result in a breach- of the' peace or other conduct which would render the contestants or the promoters, or, possibly even the spectators, liable for .assault or some other'offence under the 'criminal law; REGULATION OF WRESTLING. . His Honour agreed that for that reason it might be advisable to regulate wrestling contests strictly by statutory enactment or valid regulations made thereunder, but that was a matter for the.Legislature and not for the Court. So far .as regulation 3 was concerned,' his/ Honour could entertain no doubt that it was invalid. ."Assuming," added his' Honour, "that I am right in my conclusion that the regulation is invalid; that by no means disposes of the' real question for determination because there.still remains for consideration the question as .to whether or not section 72 (2) does confer a discretion: upon the Inspector of Police to refuse a permit. It is on this point that I~ regard -the case as one ! of very great importance. Its im-1 portance may be'thus illustrated—l i admit that the illustrations I propose ' to give are extreme ones, but it is I only by looking at extreme cases that a question such as is now before us can be determined. Supposing that the Legislature chose to enact that no vehicle should be used on any "highway, or that after a certain date no grocery business should be carried ori, oi-— perhaps a more apt illustration— that no football match should be held,! without a permit-granted by the Inspector of Police or some other Government official, and on payment of.an an-' nual licence fee of twenty shillings in either of ■ the first two cases, or of a licence fee of, say, five shillings in the third, could the licensing officer] refuse a licence to any person who ' applied for- one and'tendered the prescribed fee? ■■' Could it be held' that such an. enactment had any other object than ,to make provision for the ' record, and • perhaps the control to I some extent, of the vehicles on the road, or'of grocery businesses, or of football matches, as the case might be? Suppose the same cases that I have put, but without any provision for the payment of a licence fee, still could it be held that the enactment had any other object than that of providing for a record-and-perhaps for I supervision and.control? I think that' the answer to those questions must i determine the issue involved here, for I can see no difference in principle I between the illustrations that I have given and the. case that we-are now ' called upon to consider." I

As to whether section 72 conferred a discretion upon an inspector of police to' refuse a permit, his Honour.'said that if ■ the- section was "construed as conferring upon an inspector of police a discretion to. refuse a- licence, ,then similar language used in an enactment relating to the. licensing of any trade, business, sport.' or operatiohs'lawful at common law would have to be construed as conferring the ' like discretion. Such a construction, in his opinion, was contrary to the fundamental principles of interpretation.

"The object of requiring a permit," continued his Honour, "seems to me. on the true construction of the section, to he no rnnre than to secure that th* police shall have a'record of wrestlincr contests, knowledge of the times and blares at which such contests are to be held, arid the power to1 -attend and supervise and control the conduct of the contests."

• At the hearing Mr. F. C. Scratt apneared for the plaintiff, and the Solici-tor-General fMr.'H. H. Cornish. K.C.). with him Mr. J. D. Willis, for the defendants.