"ILLEGAL." APPEAL TO BE MADE.

Auckland Star, Volume LXVII, Issue 238, 8 October 1936, Page 8

"ILLEGAL."

APPEAL TO BE MADE.

ELECTION WORK. ■ DEMOCRAT ACTION ORCAMSKR'S CLAIM. "PRECLUDED AT UWv" COMMENT BY MAGISTRATE No money is to be paid by members of the Democrat political party to Harry •Charles Baulf, one of the organisers, who recently claimed £195 11/2 as wages and expenses during tlie 1935 election Judgment was today given hy Mr. Wyvern Wilson, S.M.. for tlie defendants, William Goodfellow and J. B. Donald, of Auckland, company directors, A. < of- Wellington, political organiser.' Si>encer Clark, of Wellington, accountant, and , T. C. A, Hislop, ot. Wellington, solicitor. . . At- tlie hearing.. Mr. J. F. W..L>scksoii app^red'for plaintiff; Mr.. A. K. North represented' 'the defendant;; Mr. A. G. St.G. ■ Br6wn for the defendant Donakl, Mr. Bruce Elliot for the defendant Hislop, and /Mr. H. <T. Butler for Davy. The magistrate found that Baulf's services "at any rate after the nomination of candidates, did constitute an - illegal practice, and that he was, therefore,, at Jaw precluded frpin. enforcing his con- ' . tract." . . • ; • . . .--./V-i New Party Launched. • • "In ..order 'to ' clearly tlie nature of tlie contract under which the claim . arises, it is necessary briefly to summarise the facts leading up to the formation'of the Democrat party and to trace, its cayeer," said Sir. Wilson. ' "It that in the middle'of the "year 1934,, the .defendant Goodfellow, who is closely connected with dairy -indus- - try, "was dissatisfied" With the'theri Government and desired a change of policy in Empire trade, and with that end in view he formed the intention of launching a new political party, which he hoped would win some 10 or 17 seats in Parliament and so control the Government's policy. He sought out the defendant Davy, who was known to him as a not unsuccessful political organiser. They conferred, with 'the result that on September 19, 1934, an agreement was entered into between them for the setting up of a new party, of which the defendant Davy was to be the chief executive officer." "He was to raeeive-a salary of £1250 a year for was to be paid by the defendant-Goodfellow, and refunded to him -by: - the party," continued. the. magistrate. '"The constitution and political platform of the, party / was to be .vested in a central" executive consisting of J.Goodfellow' and and two;'other* ■ chosen by Good • fo Mr.'Davy to engage and dismiss servants, etc.lt was stipulated that when the central - executive took office a;ne w and similar ' agreement should; be executed by tliem, andy in the'.event of sucW a. course ;npt -being;, followed, i';th,c agreement between Davy and Goodfellow should cease to-be operative. .. • "Soldiers of Fortune." . "The plaintiff .-was first told of the new party by - tie defendant Davy in July or August. • The. plaintiff and Davy 'had . worked together in organising and supporting two other political parties, in • promoting • one of which they had suffered financial disappointment. They were, therefore,' "both concerned- .as political' soldiers; of fortxine 'as -to.'the soundness of the,-arrangement: for, providing party funds. .. Plaintiff Was :tpld by\ Davy that defendant-GoodfeHpw was one of the financial Aids of. the party, ' that he was providing £5000,- that two other persons unnamed were giving each £5000, and that another £10,000 would be raised. a . • "It was first suggested to him that lie might be appointed an organiser at £10 a week, and expenses. I think that he . .gained the impression that he was to. be a weekly servant, and that the work was likely to last until a month after the election, whenever that might occur. There was a subsequent interview in : October," 1934, when he was shown the agreement, and his wages were fixed by Davy "at £0-a-week and expenses. About the same time, plaintiff discussed the matter with defendant, Goodfellow, who confirmed the statement, that he was providing money to finance the concern in Its early stages and intended collecting from others. He and 4 plaintiff subsequently chose office premises for the party." ' > Tlie magistrate, said the party seemed to have come into being on October 29, 1934,- when Messrs. Goodfellow, Davy, Baulf and eight others formed themselves into an Auckland executive' committee. Later that evening the Dominion executive was formed and the constitution was' then adopted. It was noteworthy that. at many meetings plaintiff was present when finance was discussed and he took part in the discussions. Therefore he riiust have hiad a full knowledge of the treasurer's reports from time to time. He began work on October 22 and was paid by Davy for one week. He was paid two cheques'by Goodfellow, one of £16 13/4 on October 31, two days after the formation of the party, and the Other for £16 on November 28, 1934. Differences Arise. They were. not_ the only moneys received by plaintiff in October and November, . said Mr. Wilson, as the party paid him various sums. He was paid all moneys owing to him with fair regularity .until the middle' of January, 1935. Early in that year differences arose between Davy and Goodfellow. In July Goodfellow endeavoured unsuccessfully to have Davy removed from the Dominion executive, and although he associated himself w*th the party until August .19 he said he did so only to try" to "salvage" it. " His metaphor is apt," continued the magistrate. " I think he thought that there was a danger of'shipwreck, and the. crew had mutinied. Finally he decided t'nat-liis safest place was ashore, and on August 19 he resigned from the party. On the morning of November 28 the ship was posted 'as missing, with the loss (politically) of all hands." ' « Pontiff Unduly Confident." e . v ' den ee leads me to suppose i£C ' xvent snt ° this venture speculative frame and P erlm P ß irame of mmd, and with the

•notion— that the -party furicls would' bi large ancl his position secure," com mentecl Mr. Wilson. " I do not tliinl he intended to look to either of th defendants Davy or Goodfellow person ally for payment. It is certain tha during the first eight or nine months h knew nothing of Donald, Hislop, o Clark as his employers, for they wen I not associated with the-party until •. th ! middle of 1935. Ife saj-s repeatedly tha lie expected to be paid "out of the parti ;fuiids to be controlled by the Dominioi executive. ... • ■ ''I am not prepared to-accept plaintiff' ®tory of a personal "verbal promise the defendant Donald to pay the plain stiff's debt: himself. The tale is. not borm .out by the evidence of the witnes; Denny, nor is the testimony of Mrs Milno conyincing. Furthermore, hi: action in subsequently borrowing monej from Donald and-promising, to assign t< him all moneys he might get from tin "party is not consistent. I think Mr Donald, who seems to have, treated liii rather penurious relative with generosity itt times of stress, has told me the true Version." Unsuccessful Overtures. "The plaintiff is clearly a man with no sense of loyalty and that form <of truth known as sincerity is not in him,' •declared the magistrate. "His careei and that of the defendant Davy shows that their modus operandi was to allj> themselves with one political party for a short time and then desert to the enemy; indeed, the correspondence discloses that within a few months of the end of the Democrat party they- made unsuccessful overtures to enlist in the service of the party to whose defeat they had in a measure Contributed." "The evidence shows that plaintifl was one of the political adventurers who banded themselves together to form an organisation to float the new party," continued, Mr. Wilson, "and that lie was to be paid not-by the members of the organisation but out of such moneys as they might collect from sympathisers or which they themselves might donate." It was true, saiel the magistrate, thai when the contract' was made by Davj <ind Goodfellow it was agreed that the latter should assist with the finances foi the first six months, but his Worship was unable to find that there was anj liability upon liim for any definite sun: bther than the salary of Davy. He certainly did contribute, and seemed to have done 'all that he - had promised. The plaintiff knew that his wages were nol to'be paid by eithbr Davy or Goodfellow but that he was to work for the partj (01- organisation) -when it came ifitc being, and must look to the party funds for his money. ' It was-claimed that the organisation acting through its executive, adopted the contract made by plaintiff with Davj and Goodfellow, but the evidence did nol support such a contention. There was no change in the relationship of the parties to the contract. All that happened was that the contract and the work to be done under it advanced tc a second stage which had been contemplated by the original contractors. "The Grim Alternative." The magistrate also dismissed a sub mission that there was an implied con tract by the organisation to pay the plaintiff for his services 011 a quantun merui. Plaintiff also contended that j new contract was made by the defendant Davy" oil behalf of the executive wliei , his weekly wages were raised to.. £7 : and that sirhihuly there was a new con . tract varying his expenses. The magis trate held that that did not affect tin soiree' of Vj)ayihent under the orjgina oaiitract, The course- of traijsaetibi , between the parties both . befbre * * f £n< i: 'after such variatibri showed that it .w'ai never intended to" vary; the source ,0: the payment by imposing any persona responsibilities. At 110. time was then any .cmitract; by Goodfellow and Davj to be personally responsible for tin moneys'claimed nor had there bee ii.'anj holding out by . Donald or Hislop thai they were 'personally authorising plain tiff to perform the services in which he was engaged. Plaintiff at all tinies knew his position to- be- as described by Davy, "If the party floats, Harry floats." "I think," ■added the magistrate, "die realised also ■ tlie grim alternative." The magistrate said he was not called upon to decide the i issue, of disputed claims as to whether i defendants Davy and Hislop held moneys on behalf ,of . the party. It might be .that plaintiff- liael :a reniedy against those moneys (if ahy)Vin an appropriate action, Defendant Hislop Uncontradicted. "In justice to t"he defendant Hislop, I may say that his statement remains uncontradicted that £1000 of the money received by him was expressly stipulated as being to recompense him for any personal loss he might sillier," remarked the magistrate. "While it is regrettable that plaintiff's debt remains unpaid it would be quite wrong that any of the defendants, some- of whom have lost heavily 011 this venture, should have to pay moneys for which it was never intended that they should be responsible." Dealing with Mr. Elliot's contention that the facts showed that the plaintifl was employed for payment and rendered service for the purpose of promoting or procuring the election of candidates at an election and that his services were .not such as were recognised anel permitted.by the third schedule of the Electoral Act, 1927, and that his employment eonstituteel au illegal practice as defined by section 229 of that Act, the magistrate quoted plaintiff's words. The plaintiff liacl describeel his activities as "My duties were to secure candidates. I canvassed for votes, too. I spoke at meetings. I did most of the correspondence. Miss Foster did the typing. I made policy speeches." The magistrate said these services seemed to have been carried out both before and after the nomination of candidates. It seemed obvious that the intent of the Legislature was to prohibit any person or persons (whether candidates or not) from doing the very thing that the j>laintiff was engaged to do. The object of this, of course, was to endeavour to keep the election free from any practice likely to produce corruption. In such a case both the giver and the Veceiver were guilty of an illegal i practice, which probably accounted for the secrecy that appeared to have been - preserved as. to the source of some of the Democrat party's funds. "I think," concluded the magistrate, "that his services after the nomination of candidates did constitute an illegal practice, and that he is therefore at law precluded from enforcing his contract." Judgment was given for the defendants, and the questions of costs was reserved until next Thursday.