Recent Judgments FLUORIDATION OF WATER SUPPLY

Press, Volume XCIX, Issue 29379, 5 December 1960, Page 23

Recent Judgments FLUORIDATION OF WATER SUPPLY

Misconceived Proceedings For Prevention (By a Legal Correspondent] Before Mr Justice McGregor, at Wellington Two ratepayers asked the Court for a declaration that a municipal corporation had no power to add fluorides to its water supply. Their action was misconceived, because without the Attorney-General who had declined to join in the proceedings, they had no standing in the Court. They could not show that they had any special interest enabling them to bring an action.

This was a motion by the Lower Hutt City Corporation to set aside an originating summons under which the plaintiffs, two ratepayers of Lower Hutt, applied for a declaratory order to determine whether any of the provision of Part XVII or Part XX of the Municipal Corporations Act, 1954, or any other provisions, empower the corporation to add fluorides to the water it supplies to the plaintiffs. The plaintiffs desired to institute an action against the corporation for an injunction through the Attorney-Gen er al, to whom 1 they made an appropriate appli-' cation. The Attorney-General,’ taking the view that the de-| fendent corporation and adequate | authority to embark on its fluoridation scheme, declined to. join in the proposed proceedings.! Mr Justice McGregor said it 1 was clear that the jurisdiction of the Attorney-General to decide in what cases it was proper for him to sue on behalf of relators was absolute, and his decision in this respect was not open to review by the Court. Pure Water In the present case, the basis of the plaintiffs’ action was that the corporation had exceeded the powers vested in it by the Municipal Corporation Act, 1954. By 5.240 of the act, the - council may construct waterworks for the supply of pure water for the use of the inhabitants of the district and may from time to time do all things necessary to it By 5.288 the council may do all things necessary from time to time for the preservation of the public health and convenience and for carrying into effect the provisions of the Health Act, 1956, as they apply to the district. The council resisted the present proceedings on the ground that, in establishing a fluoridation plant, it was acting within one 1 or both of those powers. The plaintiffs, on the other hand? contended that the effect of fluoridation was to supply not pure, but impure water, and, fluoridation was not a thing necessary for the preservation of public health. The Attorney-General is a necessary party in an action to

restrain a local authority, except when the interference with the public right is at the same time an interference with some private right, or when the special damage is suffered over the above that suffered by the general public. Common Right It seemed to his Honour that what the plaintiffs were in fact asserting was not the infringement of a private right to obtain a supply of pure water, but a right, if it existed, common to all ratepayers in the Lower Hutt district. Any wrongful affection was not peculiar to the plaintiffs themselves, but was common, if it was an affection, to alf ratepayers receiving the supply of fluoridated water. Likewise, the expenditure on a fluoridation plant, if beyond the powers of the corporation, was a detriment to the ratepayers as a whole, and what had been infringed would be the public right that the council must not expend public or municipal funds ultra vires. The learned Judge thought the plaintiffs in reality did not challenge that position. They submitted that the principle that the Attorney-General should be joined as a necessary party was limited to actions claiming an injunction to restrain interference with a public right, but the absence of the Attorney-General as a party did not effect the right of the plaintiffs to obtain a declaratory order under the Declarator Judgments Act, 1908. The plaintiff’s counsel suggested that where there was no other remedy available to a plaintiff who might be injuriously affected by an excess of powers, as in the present case where the AttorneyGeneral had refused his fiat to commence an action for an injunction, the Court would permit •application to be made for a declaratory order. He had properly i cited cases where declaratory I orders had been made declaring ; ultra vires various acts of public !authorities without joinder of the Attorney-General. Attorney-General Mr Justice McGregor ' said the Attorney-Gen er al was the representative of the public interest. A private individual had no standing in the Court either in a suit for an injunction or for a declaratory judgment, unless he had a special interest which enabled him to bring an action. If a particular public body claimed an excess of powers and it was a matter that concerned the public, it was for the* At-torney-General, and not for the Court, to determine whether he ought to initiate litigation in that respect.

Here, his Honour repeated, there was no interference with any private right of the plaintiffs, and they had suffered no damage peculiar to themselves. On this ground, the action could not be maintained, and the corporation’s application to set aside the originating summons should be granted.

Questions Of Fact Counsel for the corporation further submitted that the subject matter of the present application was not a proper one to be dealt with under the Declaratory Judgments Act 1908. His Honour held this submission was sound. Section 3 of the Declaratory Judgments Act states that where any person desires to do any act, the validity, legality or effect of which depends on the construction or validity of any statute, such person may apply to the Supreme Court by originating summons for a declaratory order determining any question as to the construction or validity of such statute.

The plaintiffs’ application was made under that section, and the matter of the construction of sections of the Municipal Corporations Act was at issue. But it seemed to the learned Judge that, while the question of construction was related to the validity of the acts done by the council, there were difficult questions of fact involved; whether the acts of the council were in excess of the powers given by the Municipal Corporations Act. The questions really at issue, his Honour continued, were first, whether water treated by a fluoridation process was pure water within the meaning of 5.240 of Municipal Corporations Act. This would seem to him not only to require the Court to construe the words “pure water,” but also to require it to determine the question of fact dependent, one would imagine, on scientific and expert evidence whether, as a matter of fact, the water supplied by the corporation was within the connotation of the words “pure water.*’ Second, the corporation relied on the powers conferred by 5.288 of the Municipal Corporations Act empowering it to do all things necessary from time to time for the preservation of the public health convenience, and for carrying into effect the provisions of the Health Act 1956. What might be necessary for the preservation of public health and convenience again seemed to His Honour almost wholly a question of fact dependent on evidence as to the reasonable necessities for public health and convenience. This matter did not seem to him to be an appropriate one to be considered in procedure by originating summons. Order Setting Aside The jurisdiction under the Declaratory Judgments Act 1908 is a discretionary one. and the Court may, on any grounds which it deems sufficient refuse to give or make any such judgment or order (s. 10

Mr Justice McGregor concluded by saying that the questions to be determined were as much, if not more, questions of fact as of and the matters at -|

issue had to be determined on evidence in regard to matters of fact involved. It might be somewhat unfortunate that a matter of some public interest and importance could not be determined by the Court, his Honour said; but it would seem to him that it was in the absolute discretion of the AttorneyGeneral whether proceedings should be brought which must necessarily be brought in his name.

The learned Judge therefore made an order in terms of the corporation’s motion setting aside the orginating summons. The corporation was given 20 guineas costs and disbursements. Counsel; For the defendant corporation, in support of the motion. Gillespie and Robertson; for the plaintiffs, to. oppose the motion, N. R. Taylor. Solicitors: For the plaintiffs. Duncan. Matthews, and Taylor (Wellington!; for the defendant Carter, and Oakley (Lower corporation, Hogg, Gillespie, Hutt).