COURT REFUSES TO RULE ON MINISTER’S LIABILITY

Press, Volume XCVIII, Issue 29004, 18 September 1959, Page 9

COURT REFUSES TO RULE ON MINISTER’S LIABILITY

WELLINGTON, September 17. A declaration that the Minister of Railways, as the holder of road passenger transport licences, can be prosecuted for alleged breaches of the terms of those licences has been refused by Mr Justice Haslam in a judgment delivered in the Supreme Court at Wellington today. The declaration under the Declarity Judgments Act. 1908, was sought by Luxury Landlines, Ltd. His Honour said the plaintiff company operated under licence issued pursuant of the Transport Act a service for the carriage of passengers by road between Auckland and Wellington. The Minister was the operator of certain licences similarly issued for the carriage of passengers by road but restricted in terms “to and from intermediate points between Auckland and 'Wellington.”

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In his two affidavits a director of the plaintiff company deposed, without particularising, that breaches of the conditions of the Minister's licence had occurred in that passengers had been carried “persistently” beyond the permitted terminal points. In the hope of testing the validity of the Commissioner of Transport's policy (in taking no action in prosecuting the Minister as the result of complaints) the plaintiff brought the proceedings. “The Declaratory Judgments Act expressly binds the Crown, but there is no such provision concerning the Summary Proceedings Act. 1957.” said his Honour. Mr C. A. L. Treadwell submitted that the latter enactment binds the Crown by necessary implication and conceded that, if a prosecution could be commenced in the circumstances envisaged, the Summary Proceedings Act would have to be procedurally invoked for that purpose. Commissioner’s Right

“The plaintiff’s alleged grievance is against the Railways Department and not the Commissioner of Transport with whom it has no real dispute, either personally or in his official capacity. A decision on these pleadings would, therefore, not determine any substantial issues involved/* said his Honour. X “A negative answer would not prevent the Commissioner from proceeding against the Minister at a later date if he chose, as such a proceeding would involve a party who is not affected by the judgment in th* instant case, and an affirmative'answer would not compel the Commissioner to prosecute on evidence available to him,.if'he elected not to do so.

“At the most, the Court is being invited to give counsel's opinion to guide the plaintiff in future circumstances which may never arise and on affidavits which at most contain only a hypothetical narrative of fact. “On reading section 156 of the Transport Act 1 am unable to see how any person, apart from the Commissioner and the other persons enumerated in that section, can launch proceedings against an alleged defaulter. “If, however, the plaintiff is right in contending that section 156 does not create a closed class of prosecutor, its directors can. if they choose, institute a prosecution on an information laid by their nominee.” continued thd judgment.

“The jurisdiction of the Lower Court to hear the information can then be tested in the usual way “If a Justice were to refuse to take the information in the first instance, his conduct could presumably be reviewed in the appropriate proceedings. “In brief, I accept the Crown s contention that, even if this plaintiff is entitled under the Declaratory Judgments Act to take out this originating summons, the Court should, in following well-established authority on the exercise of the discretion under that act, refuse to give any judgment,” said his Honour.