TRAM V. BUS.

Auckland Star, Volume LVII, Issue 303, 22 December 1926, Page 6

TRAM V. BUS.

TAKAPUNA CONTROVERSY. REFERRED BACK TO MAGISTRATE. NOMINAL FINE IMPOSED. Another phase of the Takapuna transit controversy was reached ihis morning, when A. H. Smith, proprietor of the Yellow Buses running on the service between Devonport and Takapuna-Milford, was charged with a breach of the Motor Omnibus Transport Act. It will be remembered that some time ago Mr. W. R. McKean, ii.M., heard the case, and dismissed the information brought by C. G. F. Wheeler, traffic inspector for the Takapuna Borough Council. The council appealed, and this appeal was subsequently upheld by Mr. Justice Adams, who reversed Mr. McKean's decision, and also referred the case back to the magistrate, directing him to impose a penalty upon defendant. Hence the matter came before Mr. McKean at the Magistrate's Court this morning. Mr. E. H. Northcroft appeared for defendant, Smith, while Mr. Lowrie represented the Takapuna Borough Council. Mr. Northcroft requested Mr. McKean to allow the matxer to stand over, pending the result of the proceedings now being taken in the Supreme Court to prohibit the Takapuna Borough Council irom adjudicating on the matter, on the alleged ground of their bias and favour of a tram monopoly. Counsel pointed out that, if doubt as to the proper licensing authority had not existed, the prohibition proceedings would have been taken earlier. The Supreme Court indicated that it would grant an injunction pending a full hearing, but this became unnecessary in view of the undertaking by the council that they would not adjudicate upon it in the meantime. Mr. Lo.wrie said that it was highly desirable that the matter should bs cleared up. As far back as June, defendant had made application, and had put the council to a great deal of trouble and expense since then. Defendant was present when the No. 2 Licensing , Authority first met, but it was found that no application on his behalf had been filed by his solicitors, so an adjournment was granted. "There has been a certain amount of legal subterfuge resorted to, and it has caused the council some embarrassment," said Mr. Lowrie. "They tried to get a license from No. 1 Authority, and pass by us altogether." Mr. Northcroft: We had a good reason for that. There was so much bias. "It appears to mc that I have been singularly unfortunate in my manner of expressing myself," said Mr. McKean. "I have not seen his Honor's judgment, but I saw the -Auckland '"Star's" report of the Supreme Court matter. His Honor said that I thought that the No. 1 Licensing Authority had jurisdiction to grant a license in the No. 2 district. I have never thought that, while I dismissed the proceedings for quite a different reason. In my judgment, I took into consideration Smith's position in the event of No. 1 Licensing Authority granting him a license only to the boundary of Takapuna. So I have been as unfortunate in my language as the language of the Legislature." Mr. Lowrie: I submit that the matter is now one for the imposition of a sub-1 stantial fine. Smith is running an illegal '■ business as a source of revenue, and he' is doing well.. He has been leniently treated by the Takapuna Borough Council, and he should be off the road. Mr. MeKean: If I fix a' penalty, I will take into consideration that there was a legal doubt as to the regulations, so I do not think that anything other than. a nominal penalty should be imposed. All I have to consider now is Mr. North - croft's request to defer the matter until the Supreme Court disposes of the other case. Mr. Lowrie: We have been flouted since June, and I submit that Smith should be dealt with now. "Mr. Justice Stringer has stated that the council brought the trouble on their own heads," said Mr. Northcroft. "Well, as there was some doubt, and as defendant was acting on the advice of his counsel, I will not inflict a substantial penalty," said the magistrate. "Until the matter was decided by the Supreme Court, Smith was entitled to assume that there was a doubt. He will be fined 10/, and costs 30/." Waitemata Bus Caie Adjourned. Another similar breach alleged against the Waitemata Bus Transport Co., Ltd., by the Takapuna Borough Council, was adjourned sine die, on Mr. Northcroft's application.