SUPREME COURT.

Press, Volume LIV, Issue 9814, 25 August 1897, Page 3

SUPREME COURT.

SITTING AT NISI PRWS.

Tuesday, Ac<.__t 24.

The Civil sittings were resumed at 11 a.m.

PROFFfTT V PARKKR ASD OTHERS.

The plaintiff in this case was William Proffitt, of Napier, commission agent, and the defendants were Hon. E. W. Parker, merchant, Messrs W. H. E. Wanklyn, accountant, and Robert Spry, caretaker/ The statement of claim alleged that on the l*th November, 1896, on certain land in Riccarton known as the Christ-church Racecourse Reserve, the defendants assaulted the plaintiff and imprisoned him for a long time, by reason whereof the plaintiff suffered pain of body and mind. The plaintiff, therefore, prayed judgment for £500 as damages. The statement of defence was a general denial of the allegations contained in the statement of claim. The statement of defence further alleged that the reserve mentioned in the statement of claim was the allotment described in the schedule to the Christchurch Racecourse Reserve Act, 1878, and was vested in Trustees for the tima being under and according to the trusts of the Act. On the 14th November, 1896, the Canterbury Jockey Club wag 1 entitled to the exclusive use of the grand stand enclosure on the Christchuroh Racecourse Reserve, the same having been granted to the Club by the Trustees thereof for that day for the purpose of a particular sport, to wit, horse racing; and notwithstanding that the plaintiff had received previous notice that the Club would not permit him to enter, he did so enter to the enclosure and refused to leave ; thereupon the* defendants, for the purpose of making the plaintiff desist from such entry and leave the reserve, gently laid their hands upon the plaintiff and removed him from the reserve, which was the assault and imprisonment complained of. The plaintiff is a professional bookmaker and layer of totalisator odds, as well as a turf •commission agent. The defendant Hon. E. W. Parker is a Trustee of yfte reserve and a Steward and member of the*-C..T.C., and W. H. E. Wanklyn Secretary the Trustees and the C.J.C. Previouif to the 14th November the Trustees determined, as they lawfully might, that bookmakers should be excluded from the Racecourse Reserve and grand stand enclosure, ajfci gave orders accordingly, of which plamftfF had notice ; that previous to and on the* 14th November the plaintiff had notice that the Trustees and the Jockey Club, or one of them, were or was in possession of the land, and denied his claim to right of entry. Mr Beswick for plaintiff. Mr Fisher for defendants, with him Mr Stringer. Mr Beswick opened the case. He might, saj that a man named Spry had been joined as a defendant, but the case against him had been withdrawn and the action would be ?roceeded with as agaiust the Hon. E.—W. 'arker and Mr Wanklyn, as they had accepted full responsibility for what Spry had done as their agent. His Honour would see in the letter he now put in from his learned friend, that tlie removal from the course" was admitted.; [Letter ptit in.] As to the position of the Kiccavton racecourse,. there was a Crown grant which had been issued on the 31st March, 1857, upoutruscforapublicracccourse for the province of Canterbury. Following upon that an Act was passed in 1878J called the Christchurch Racecourse -Reserve Act vesting the land in certain individuals as a body corporate, under the .name of the trustees of the Christcliurcli Racecourse. Power was given to the trustees to set apart a portion of the land for a racecourse, and to make rules for •'the admission of the public on tlie days races should be held, for the exclusion of the public from such part 3of the course as might be laid down in artificial grass, and for regulating the prices of admission. Then a comprehensive amended Act was passed in 1885, which defined the powers of the trustees of the racecourse generally, dealing with the Racecourse Reserve. Tlie regulations the trustees purported to have made had been made under the Act of 1870, and-fcSe Act he (Mr Beswick) had last referred ,tcy The Crown grant, hj might say,, Tp^originally 'to the Supenritendent r i%r^h^'Jime" but he was divesteVVofifc _y the Act of 1878. Then there was a provision for the granting of the use of the course to the Jockey Club, subject to certain provisions.

His Honour—What I want to get at is this a reserve under the Publio Reserves Act, 1881?

Mr Beswick—l think so,

His Honour—What I want to find out is, is the actual position of the reserve.

Mr Beswick then went on to say that certain regulations had been made by the trustees under the Acts of 1878 and 1885, which were posted up on the racecourse. (Regulations put in.) Regulation 3 provided that the public should be excluded on the days set apart for racing from the parts used for racing except on payment of the sum charged for admission thereto, or the production of a ticket entitling to admission to the grand stand and all parts of the course. Then. there was a provision for the exclusion from the course, or removal of certain persons, defaulters, &c, or who had been warned off any racecourse. The admission by ticket wa3 made subject to the conditions imposed by the Trustees. There was a provision that no betting should be carried on except throughthe totalisator. Then came a provision providing for the removal of any person, though he might have a ticket who might be guilty of certain offences set out. On the particular day referred to the plaintiff applied for and obtained a ticket, for the grand stand. When he went there he was told by Mr Wanklyn, Secretary to the C.J.C and also to the Trustees, to go out of the enclosure. The plaintiff refused to do so. A sergeant of police was called to assist, but he declined "to do po, and the plaintiff was thenforciblyremoved by an agent of the defendants, assisted by Mr Wanklyn. The defence simply meant that any person to whom the Club had a personal antipathy might be removed from the course. It was further alleged that on the 14th November the trustees had lawfully determined that bookmakers should be excluded from the grand stand enclosure. Now the whole point of the ease for the plaintiff was that the trustees -Were trustees for the public, and that the racecourse was so held by them for the public.

His Honour said that was the whole point of the case. The question of trespassing on private lands had been decided by the Court of Appeal in the case of Pollock v Feilding Racing Club. Mr Beswick said that their contention was that this case was distinguishable from the case referred to by his Honour, because this was a public reserve.

Mr Fisher said that the judgment had not yet been reported in tbe authorised reports.

His Honour said that he had delivered the judgment in the Court of Appeal, and had a draft of it, which he would read to counsel.

Mr Beswick said he would now call evidence.

William Proffitt deposed—l am a bookmaker. I remember the 14th November last. On that day the November Meeting of the C.J.C. was being held at Riccarton. I went on to the racecourse that day. I went on to that portion known as the grand stand enclosure. I paid for admission at the railway entrance to the course. The railway ticket admitted mc to the course, and I paid a further sum of ten shillings to get into the grand stand enclosure, t obtained a ticket. There was another gentleman with mc named Pollock. He »vas a bookmaker. After he had been there some time the Hon. E. W. Parker and Mr Wanklyn came up to us and told us to go off. We refused, and then a policeman came. Then a man named Spry came and I asked him to put his hands on mc. I said that I wanted him to put his hands on mc, as I said that I intended to try a test case as to it being on a public reserve. Alter Mr Wanklyn and Spry had put their hands on mc I went out. Some months after this Mr Wanklyn said he owed mc 10s for the ticket, but I said he did not.

Cross-examined by Mr Fisher—l remember seeing an advertisement by the C.J.C. in the paper, stating that bookmakers would not be admitted on to the course at the Spring Meeting. I went to see Mr Wanklyn about tlie advertisement. We had a deputation to the Hon. K. W. Parker from the Bookmakers' Association to try and arrange with the C.J.C. to pay a fee to allow us to bet. A proposal was made that we should confine ourselves to straight-out Letting and avoid doing totalisator belting. At firat Mr P«*rker seemed inclined tv do it, but itfterwards Mid ha could not do it, as it was

against the law. Subsequently I saw Mr Wanklyn in company with Mr Pollock, and ssked him what they were going to do. Mr Wanklyn said that Hie Club had come to the determination not to allow us to bet. We made the proposal to him to confine ourselves to straight-out betting. I was not going to ply my calling on the day I went to the course. I went there for the purpose of being turned out. We went to the steward's room and told them that we did not intend to bet, but we came there to see if they would turn us off. If they did we intended to bring a case. Sometimes it would be an object for mc to go on the course to rectify my book. I might want to put money in the totalisator, to give Mr Wanklyn and the Club, it might be, £200 or £300.

His Honoxir—The whole point seems to be 'that the man is turned out because he belongs to a certaiu class. Mr Fisher—We lay down the condition, rightly or wrongly, that we will not admit bookmakers, and further, we say that if a man goes there to carry on his business, exclusive of wishing to see the races, he is a trespasser.

Cross-examination continued—l told the stewards on the course what I intended to do. I saw one or two bookmakers on the course. They were carrying on their business outside the enclosure. I have never been in the inclosure since the date of the assault. They won't let mc in. Mr Fisher—ls it a fact that the bookmakers are providing the sinews of war to carry on this action ?

His Honour—They are standing on their legal right, and it does not matter who is providing the money to carry it on. Cross-examination continued—l did not ask for my money back. Re-examined by Mr Beswick—l was not excluded from the course proper, but from the enclosure. I had been on the course outside.

Mr Beswick proposed to call Constable Cullen.

His Honour said that as it was admitted that the facts were as stated by the witness Proffitt there was no need for calling another witness.

This was the plaintiffs case. Mr Fisher said that he submitted that tho trustees of the racecourse or the C.J.C. or both of them, were enabled to make regulations from time tc time, and he would call evidence on this part first. W. H. E. Wanklyn—l am Secretary to the Christchurch Racecourse Trustees and to the C.J.C. On September 12th, 1892, the Trustees granted the use of the Christchurch Racecourse Reserve to the C.J.C. I produce the minute. The grant was for seven years from that date on certain conditions, one of which was that the admission of the public on the days set apart for racing should be subject to the regulations of the Trustees.

Mr Beswick objected to the evidence as being given to show a grant from the Trustees to the C.J.C. He had no objection to it going in as evidence of what took place at the meeting of the Trustees. Examination continued—The C.J.C. have been in possession ei'er since, and were so on 14th November, 1896. A meeting of Trustees was held on the Racecourse on the 14th November, 1896, and I was directed to take staps to exclude bookmakers from the enclosure. The C.J.C. had made a similar regulation some months before, and instructed mc to advertise that bookmakers would not be allowed in the enclosure. I did so. I should think there were quite two hundred bookmakers plying their trade on Grand National day. Before this regulation they carried on their business in the grand stand enclosure; not standing on boxes. There are 160 members of the C.J.C, and the subscription is £5 sa, per annum. The C.J.C. runs its own totalisator at each of ita meetings under license from the Government. The Club pays a tax to the Governmeno for using it. The profit made goes in payment of stakes, the plantation of the reserve, the improvement ot the course, &c. The bookmakers interfere very seriously with the profits of the Club in connection with the totalisator. It is on that account that the Trustees and the Clubobject to their presence. The C.J.C. are rated for the reserve and pay all taxes connected with it. It is fenced in, and there is a caretaker and Jocks are on the gates. On race days the public have either to be members of the Club or pay for admission. The public have never sought to assert a right to go on the ground without a ticket or permission of the Club. The Club has been in existence for over forty years, and has had possession of the reserve for a very • considerable time. I recollect Proffitt coming to see inc. He said something to the effect '■ What are you going to do with us bookies." I said, " We are going to do onr best to keep you off." Ido not remember any offer about confining themselves to straight-out betting. A letter was received I believe from the Bookmakers' Association stating that they would not lay totalisator odds. They never applied to go into the enclosure, simply as a part of the public. The claim has always been based on their right to go on the course and ply their trade. Proffitt made an application for the refund of the money paid for the ticket when he was removed. Mr Packer told mc to pay him a cheque. Cross-examined by Mr Beswick—-So far as I know of the C.J.C. and the Trustees they don't like bookmakers on the course at all. I always consider that the swindles on the turf are due to the bookmakers. I certainly object to them being outside the enclosure, but we have not a staff large enough to prevent them being there. If we had. I should clear them all off. The C.J.C. were in possession of the course on 14th November. I consider that the C.J.C have a right to hold possession of the ground under the minute of the Trustees' meeting granting them the use of the ground. Re-examined by Mr Fisher—Hon. E. W. Parker is a "Trustee of the racecourse, Chairman of the C.J.C. Committee, and a Steward. He was present with mc when Proffitt was put off.

This closed the evidence.

Mr Fisher snbmitted that the trustees or the C.J.C. or both were in possession of the ground, and that their possession gave them a right between themselves and any person wishing to come on the ground, to say whether they should come on, and being on whether they should remain. Thus, so far as Proffitt was concerned, the authority of either Mr Wanklyn or Mr Parker, as representing whichever body his Honour held was in possession was sufficient. [The learned counsel ' cited an English case, Wood v Ledbitter, in support of his contention]. All that was necessary for the purposes of the defence was to show that they were in possession.

His Honour said what the defendants had to establish was the right of the C.J.C. to exclude any class of the community. Mr Fisher submitted that the plaintiff going into the enclosure by virtue of their ticket admitted the possession of the,C.J.C, and was stopped from denying it. No individual of the public had a right to go on the course to see the racing. There was a trust, and if an individual was not satisfied with the way in which the Trustees were carrying out their trust he conld proceed in another way to make the Trustees carry out their trust, but no single individual bad a right to disturb the Club in their possession. Further, under the Statute of 1878, Section 4, the Trustees were empowered to make and alter rules under which the public should be entitled to have access to the racecourse on any day whon the reserve was being used for racing purposes. The Trustees had decided on the day mentioned that bookmakers should not be admitted to the enclosure.

Mr Beswick pointed out that Mr Wanklyn had only quoted a minute to the effect that bookmakers who had come on the course should be removed. That was no regulation.

Mr Fisher pointed out that the Act did not prescribe any mode of working the re- j gulationa. He submitted that the rule made | on the 14th November at the meeting of the Trustees was a good one. The Trustees had been summoned by notice to meet on the ground. His Honour said he had not understood this from Mr Wanklyn. Perhaps it .w:>uld be better to re-examine on this point. Mr Wanklyn, in re-examination lay His Honour, said when it was found on the afternoon of the 13th that the bookmakers were coming on, he consulted Mr Stead and Mr Parker, and it was decided to call a meeting of the trustees for the next day at noon on the ground. The notices M-eVe swit out accordingly. There was a quorum present out of the six trustees sur- j viving. There were present Sir George Clifford, Hon. E. W. Parker, Messrs G. G. Stead and Studholme. The other trustees

who were absent all had notice of the meeting. Mr Fisher continued that the rule was a good one under the Act of 1878, and that authority, coupled with the words of section 7 of the Act of 1885, which said that the trustees having the control for the time being of the racecourse may make regulalations' from time to time for admission of the public was sufficient. There was nothing in the Act which gave the public as the public a right to go over the course as they liked. Subsection 3 of the section provided that the trustees might make, alter and revoke regulations for tho admission of the public on any days when racing might take place on the ground. They were also empowered to make regulations to keep order on the ground. Then there were the conditions providing for the letting by the Trustees to tho Jockey Club. Under that power the Trustees could hire the course to a private Club of over fifty members, who might provide that no one outside the members should have a right to come on to the course. One of the terms on which the cotirse was let to the Jockey Club, his Honour would see, was that there should be no betting except through the authorised totalisator. Therefore, apart from the Trustees, it was necessary, according to the terms on which they held the course, for the Club to stop betting except in the mode prescribed. His Honour, he submitted, would have to judge whether the plaintiff went for the purpose of betting, and would read the rule that no man would be allowed there as a bookmaker who was a bookmaker.

His Honour thought that the position was th-.t the plaintiff stated that he went there only to assert his right to be there not to bet, and that he did not open his mouth to bet.

Mr Fisher submitted that his Honour must look at the preceding circumstances of the interview by plaintiff with Mr Wanklyn and Hon. E. W. Parker.

His Honour declined to do this. The Club asserted they had a right to exclude this man as a bookmaker, whether he betted or not. That was the question to be decided. There was a definite statement to the Stewards that they did not intend to bet at all, but to assert their, right to be tliere.

Mr Fisher submitted that the Club had a right to exclude bookmakers as a class.

His Honour pointed out that what Mr Fisher came there to assert and to prove was that the Club had a right to exclude a class.

Mr Fisher submitted, accepting the position put by his Honour, that the Trustees had a right to exclude and eliminate a class of persons that it was undesirable to have on the course. Supposing the C.J.C. passed a rule excluding pickpockets or spielerj, he submitted-they could enforce it.

His Honour pointed out that Mr Fisher's contention went the length that they were entitled to exclude persons because they were of-bad character.

Mr Beswick submitted that his learned friend had as much right to exclude a bookmaker as a man because he had red hair.

Mr Fisher said he would submit that the control of the ground must rest somewhere, and the law had put it in the hands of tho Trustees.

His Honour said that Mr Fisher might confine his arguments to the point of the right of the Club to refuse entry.

Mr Fisher submitted that the friends of a lunatic would have no right to force a lunatic into the asylum, although he was a fit subject for the asylum, irrespective of the control of the power in possession. So, in this case, the .Legislature had left the right of refusing entry in their discretion. Then, supposing that, in spite of the efforts of the Club to prevent betting, it went on, the power of exclusion would go as a necessary consequence of this power that they could exclude. The C.J.C. excluded persons from the Stewards' rooms, from the weighing room, &c.

Mr Beswick—That is in their regulations.

Mr Fisher submitted that it must be their inherent right of exclusion which enabled them to do this. The Trustees might make, under section 8, a condition that the Club should admit the public" or only the members of the Racing Club to whom they let the course. The terms and conditions were, he submitted, advertised by the postirrg up on. • the course of the regulations, even if the Trustees did not comply with the requirements of the section as to publicly advertising the terms there would be nothing to prevent a Club holding the ground for lacing. On the 14th November the C.J.C. were in possession, under the consent of the trustees of'the course, for the purpose of racing, and though the Club did not carry out the conditions under which the course was let to the Club, that was a matter between the Club and the trustees, and no private individual had a right to take advantage of it.

Mr Stringer said he had not much to add to the arguments of his learned friend. The Christchurch Kacecourse Reserves Act nor the Reserves Act did not give a general right to the public. The mere fact that it was a public racecourse did not give any member of the public a right of entry. The racecourse must be managed by some body, and this inferred that the body having control had a right to impose conditions of entry. That being so, they would be able to prohibit persons suffering from contagious diseases, women of ill-fame, or, he would say, bookmakers. It would be for his Honour to decide as to the reasonableness of the exercise of the discretion by the Trustees. But he submitted that when the class excluded was one not recognised by law it was reasonable that the Club should say in the interests of good order we determine to exclude that class. [The learned counsel cited an English case in support.] Unless the Court was satisfied that the exclusion of the class was not reasonable or honest, it would not interfere. Again, this was not the proper method of testing the question. Mr Proffitt claimed as one of the public on payment of a fee to be admitted to the course, but the law held that unless a man suffered damage the proper method was by indictment or other way, as in the case of a man obstructed on the highway.

His Honour thought that if a man were pushed off the highway his remedy was by action for assault.

Mr Beswick submitted that the arguments of his learned friends had been based on the existence of a so-called regulation purporting to have been made on the racecourse on the 14th November, 1896, which he (Mr Beswick) submitted never existed. There was nothing in the resolution purporting to be a special or permanent regulation. It was only a temporary instruction to Mr Wanklyn to take steps to eject bookmakers who were then on the course. There was nothing in the minutes about the ejection of bookmakers in general, and had there been a regulation to that effect he should have contended that it was ultra vires.

His Honour pointed out that Mr Beswick was taking a technical objection to the mode of exclusion, and not dealing with what was really the whole point, viz., had the Trustees power to-exclude a certain class. Mr Beswick said the Trustees could only take their power from the Acts creating them. The grant was one to Trustees for the publio for the purposes of racing and for the benefit of the public He admitted that clause 8 of the" Act meant that Jockey Clubs generally should be entitled to the use of the racecourse subject to the permission of the trustees, and that the exclusive use to a particular Jockey Club was ultra vires.

His Honour —Is there not a power to lease in the Act ?

Mr Beswick said there was, but that did not mean to a Racing Club but to parties for the purpose of cropping. If this were not so then all other Clubs who might grow up were precluded from the use of the course, which was intended for the benefit of the public who desired to witness racing. His* Honour pointed out that on the particular day the Jockey Club were in possession with the consent of the Trustees. Mr Beswick wished to make the point that on that day the public were as much in possession as the Jockey Club. The rights of the public were defined in Section 7 of the Act of 1885, by which certain conditions were defined as controlling the admission of the public to the racecourse. The price of admission was fixed by these conditions, and, therefore, any person paying that price had a right of entry to all parts of the course set apart for racing on the day on which races were held. The reason why the Club wished to exclude the bookmakers was because they interfered with the receipts of the totalisator. His Honour asked why he should not io-

elude Mr Wanklyn's opinion, that book* makers were a fruitful source of all the evila on the turf. Why should he not give the Club credit for a higher motive than the sordid one attributed to them by Mr Beswick ?

Mr Beswick submitted that per te there was nothing bad in bookmakers. The largest bookmaker with the publio was the C.J.C, and the former were bound to lose 10 per cent. It was not illegal to bet, and if these people laid totalisator odds then tho C.J.C. ought to take the proper lawful steps to prosecute them. If the C.J.C. had the right to exclude bookmakers they might say to the public, " You must all go out; it is true you have paid your money, but you are objectionable to us and must go out." There was no discretion inherent in the Trustees, as the publio had a right to go there any day that racing was on, and witness racing. His Honour said Mr Beswick's contention went the length of saying that if there were no regulations made the public would have a right to go on the course at any time when racing was going on.

Mr Beswick said that this was so. Racing was considered as an amusement, and the grant of the course to trustees, on behalf of the public, was to enable the public to witness this amusement. The publio had oo any day when racing was on, subject to the egulations of the Trustees, a right to go on the course, and the Club had no right to stop them.

Mr Fisher, in reply, referred his Honour to Holmes v Bagge and another, 22, L.J., Q. 8., 301, as to the question of possession. He submitted that the burden of proof waa on his learned friend to show that he had the right of entry. His Honour said he would take time to consider his judgment.

The Court then rose