APPLICATION FOR MANDAMUS

Auckland Star, Volume XXXIX, Issue 141, 13 June 1908, Page 7

APPLICATION FOR MANDAMUS

MAGISTRATES' CERTIFICATES OF FITNESS. • . ■ An application for a" mandamus was heard this morning by his Honor Mr. Justice Edwards, the parties being Joseph A. Douglas against R. W. Dyer, Stipendiary Magistrate, and chairman of the Licensing Committee for the City of Auckland. Messrs. F. E. Baunie. K.C., and R. McVeagh appeared for the plaintiff Douglas, and the Hon. J. A. Tole, K.C., for the defendant.

The application was for a mandamus to compel Mr. Dyer to hear the applicant in support of an application made for a certificate of fitness under section 12, sub-section 2, of the Alcoholic Liquors Sa*e Control Act, 1597, to hear such evidence as the applicant might tender upoa the application, to hear and determine the application, and to inform the applicant of the grounds of refusal in the event of such application being ultimately refused. The proceedings really attacked the method of procedure that has been obaerveu iv the past in the City of Auckland in relation to applications for certificates of fitness. The practice hitherto has been to submit the application to the magistrate who was discharging the duties of chairman of the Licensing Committee. He forwarded the application to the Inspector of Police for his report, and upon receipt of this, he granted or refused the application without acquainting the applicant of tho irattre o£ the report. The practice was also to decline to hear any evidence either of the applicant or anyone else in support of the application for a certificate. The facts in the present case ■were that the plaintiff had applied to Mr. Dyer for a certificate of fitness, and formally requested that he should be heard in support of his application, and that any evidence tendered by him should also be Jieard. The magistrate refused to hear evidence, and also refused the application, and under these circumstances the request was made for a mandamus.

Counsel for the plaintiff argued that the terms of the statute imposed on the magistrate a positive duty to hear the plaintiff's application, and that that duty must be exercised in a judicial manner. It was further contended that the refusal must be the result of a proper judicial inquiry. Counsel argued that the discretion was given to the magistrate by the legislature, but he was bound to exercise it in accordance with the forms prescribed for judicial procedure.

Counsel for the defence contended that the duty which was to be enforced by the mandamus must be an imperative one. If Mr. Dyer had said, "I think ho is a fit person, but I decline to give a certificate," then only could there be a reason* for the issue of a mandamus. Here he said: "I am of opinion that he is not a fit person." Counsel submitted that the magistrate's discretionary power had been perfectly justly exercised. A man might have a good character, and still be utterly unsuitable for a hotelkeeper. The duty of the magistrate ■was a discretionary one to give or not to give a certificate of fitness.

'Mr. Dyer: We cannot compel Mr. Dyer to grant a certificate, but we ask that he should be made to exercise his discretionary power in a proper way. His Honor reserved his decision.