THE ELECTION PETITIONS

Auckland Star, Volume XXXIV, Issue 28, 2 February 1903, Page 2

THE ELECTION PETITIONS

SITTING OF THE COURT

A QUESTION OF COSTS

The Chief Justice, Sir Robert Stout, together with Mr Justice Conolly. sat at the Supreme Court at 11 .a.m. to-day-for the purpose of dealing with the petitions lodged against the. elections at Parnell and Grey Lynn. The matter really resolved itself into a question of costs, as in both cases notice of withdrawal of pel it ions had been duly ad-m-ii^d. The first ease taken was that of Grey Lynn. Mr Hugh Campbell appeared on behalf of the petitioners, Mr J. R. Reed for Mr George Fowlds, M.H.R., the Hon. J. A. Tole for Mr John King, Registrar of Electors. The returning officer, Mr Symon, appeared in person. Mr Campbell formally applied for leave to withdraw the petition, stating that affidavits had been duly filed. He also handed in a copy of the paper in which the withdrawal was advertised. Mr Reed said he had not had any notice of this application, but simply attended because, the fact that the Court was to sit waa mentioned in the paper. He contended that the Court hud to fix a date for hearing such application. Chief Justice: Is any person present who wishes to substitute a petition'for the one for which leave is asked to be withdrawn? The query did not call forth any response. Mr Reed: 1 may point out that, no notice has been given of this application for to-day, so any person wishing to substitute a petition might not know to attend. Chief Justice: This date has been gazetted, fixing the pitting of the Court. Mr Campbell: There is no allegation whatever against Mr Fowlds. Mr Reed: But Mr Fowlds has been made a respondent, and has not received notice that the application for withdrawal would come on to-day. Chief Justice: He has had notice of the petition being heard to-day. Chief Justice: What do you want? Mr Heed: We cannot object to the petitions being withdrawn, but we understood a day would be fixed. Chief Justice: Tt is withdrawn; now. what do you want? Mr TTecd: We want our costs. Chief Justice (smiling): You are taking a long way round. Mr Justice. Conolly: You object that it is not properly before the Court now? Mr Reed: That is the position, Your Honor. Mr Justice Conolly: The rule provides that the date shall be fixed by the Court, and that can only be, when the Court is sitting here. Mr Tole: No good could result from any postponement. Chief Justice: Perhaps Mr Reed is right in his contention that this Court cannot allow withdrawal of the petition without fixing a definite time for hearing the application. Mr Tole: The consent of parties would get over that. Chief Justice: I think it would be safer to fix to-morr-ow morning. I don't know that anything will be gained by j it, because no person has given notice j of intention to substitute another j petition. Under rule 41 the Judge in j chambers could have, fixed the date had I you applied in chambers. Mr Campbell suggested the Court might fix 11.30 to-day as the date. The Court, however, decided 1o adjourn the case until 10 o'clock to-mor-row morning. The Parnell petition was next called. Mr. Brookfield appeared for Mr. J. M. Shcra. petitioner, H«»i. J- A. Tole for the Registrar of Electors (Mr. John King). Mr! F. Earl for Mr. F. Lawry, M.H.R-, and Mr. C. J. Par- for Mr. Joseph Gilmotir (returning officer). Mr. Brookfteid explained that, no formal application was made, but the Registrar had notified the case would come up to-day. He contended that the respondents were really not before the Court, because no notices had been served to them. The notice of withdrawal was given some time after the due date, for which notices should have been served. The petition was simply lodged with the Returning Officer for transmission to Wellington. , The Chief Justice: Until service, I presume, the" respondents did not need to bother about the case? Mr. Brookfield: That is what we roneMr Parr argued that the Returning Officer, having certain duties to perform, became a respondent, and was entitled

Chief Justice: That does not. make service. He has no right to interfere until he is served with the petition. Have you any precedent for allowing costs to persons not served? Mr Parr: I cannot, find any authorities upon this precise portion, but the returning officer is made a respondent by the petition presented to him. "Chief Justice: If a writ is not served you would not give a defendant costs. If you have not been named as a respondent you have nothing to do with it. This is really a case of abandonment through non-service. Mr Parr: Still, the returning oiHcer had certain duties to perform.

Chief J.ustice: But you are not allowed costs for that.

Mr Tole argued that the registrar was made a respondent by the Act. He said in this/particular ease practically charges of misconduct cvorc made, and the registrar had to prepare to ixcet that charge. There might also be a sub stitutive person for whom he must be prepared to answer.

Chief Justice' The petitioners would not have to pay costs because a substitutive person came in.

Mr Tole said the registrar had to go to the trouble of investigating hundreds of cases to meet the petition.

Chief Justice: The affidavit states petitioner was misled by the Registrar himself.

Mr Tole: We claim that the law says we are parties, and we are to be deemed as respondents, the petition being si advertised. The petition was advertised, and the registrar was even given notice of withdrawal.

Chief Justice: No doubt he was a party, but he was not served.

Mr Tole: The advertisement means to convey that the registrar gave false information.

Chief Justice: The befit answer to that is that tfee petition is withdrawn. It may mean thftt the registrar was misunderstood.

Mr Tole: Supposing the registrar

goes into the box and swears the petitioner had no converse with him upon the matter.

Chief Justice: That cannot be so, be cause the affidavit states differently.

Mr Brookfield: The affidavit does not SHy there was a personal interview with Mr Shera.

Chief Justice: It says. "I called upon the registrar, and he said so and so."

Mr Tole: The solicitor made no personal application to Mr King upon the matter.

Finally the Court decided to adjourn the case until to-morrow morning.