Supreme Court PENSIONER’S ACTION AGAINST CITY COUNCIL

Press, Volume C, Issue 29557, 5 July 1961, Page 22

Supreme Court PENSIONER’S ACTION AGAINST CITY COUNCIL

Submissions that he was, entitled, both as a litigant and a ratepayer, to inspect! the minute* of the electricity | committee of the Christchurch City Council were made by Paul Robert Harper Malang, a war pensioner, before Mr Justice Macarthur in the Supreme Court yesterday. Maling. who conducted his own case, was appealing! against the decision of a Magistrate refusing to grant his application, by way of interlocutory proceedings, for a Court order that the City Council produce for his inspection the minutes of the electricity committee for seven vears front January, 1953. The proceedings arose out of an action in the Magistrate's Court in which the Mayor, councillors, and citizens of Christchurch claimed £2 10s 8d from Maling as electricity charges owing by him to the Christchurch City Council. Maling had filed notice of intention to | defend this claim, and has counter-claimed £33. a sum he alleges is owed to him because of wrongful electricity charges by the City Council Yesterday Malang argued that the Magistrate’s refusal to grant his application for an order for inspection was ‘ wrong in law, and fails to recognise the intention of Parliament and the natural democratic rights of electors.” Even if the Magistrate’s decision was right in so far as it applied to him as a liti-i gant, it "could in way influ-! ence my right as elector to the inspection of toe; minutes." Judge's View His Honour, reserving his decision, said he should make it clear to Maling that the Court's decision on his appeal must be brought on the construction of the relevant Acts of Parliament and rules of the Court that governed the questions based on Maling being a party to the action brought in the lower Court. "Your right of inspection as an elector under the Municipal Corporations Act. if there is any context as to what right you would have to such an order, would have to be the subject of some o'her proceedings.” his Honour said to Maling. Mr A. Hearn appeared for the Christchurch City Council as respondent in Maling'si appealHis Honour said that a preliminary and most important matter was whether the Magistrate’s decision on the interlocutory matter had the right of appeal. He would want to hear Mr Hearn on this question, but as Maling was not represented by counsel he would allow him to make his submissions on the assumption, for the moment, that the right of appeal lay Maling said that the result of his appeal was of greet importance to all ratepayers to municipal councils in New Zealand. On it would depend whether those who elected representatives to councils were, with the sanction of the law. to be excluded from inspecting the minutes of committees, or whether the democratic rights of electors, as set out in the Municipal Corporations Act. 1954. were to be upheld “Clearly Wrong" Maling submitted that the Magistrate was clearly wrong in thinking that he should first have asked for the discovery of documents (the committee minutes) before applying for a Court order for their production for inspection. Quoting rule 156 <i) of the Magistrate's Courts Rules. Maling said that ‘‘any party to any proceedings at any time shall give to any other party notice to produce any document for inspection.” If the Magistrate had decided that he had a right of inspection as a litigant, then his application, said Maling, would have been decided on the basis of whether the information he sought should be disclosed “without injury to the public interests whatever that might be interpreted to mean. But as an elector, I am outside any such restriction imposed on a litigant, for the Municipal Corporations Act places no such condition whatsoever on the electors' right to inspection of minutes.” Maling said. He submitted that section 75 of the Act was quite definite in the point that ratepayers could inspect council minutes, and the Magistrate’s decision supported this. "I suggest that this, and the tact that it should be necessary to bring this appeal. are indicative of the City Councils strenuous attempts to prevent inspection by me, an elector, at all costs.” From 1953 lb his Honour, Maling said his original application was to inspect the electricity committee minutes from 1953 to 1960. He was not inflexible on that point, and would be satisfied, it necessary, for an order to inspect the minutes for toe last three years. He said that the City Council had increased the electricstv ctarges through the Municipal Electricity Department in 1953. and from that time he had found the increase in charges under protest. In 1967 the council f ad steeply increased the electricity charges, and from then on he had paid only the rate he had previously protested about He submitted that the Mag--Istate was in error in apparently justifying the councils refusal to provide inspection] of the committee minutes by; saving that the commitees decision would be embodied, in a resohiic® in the council s minutes which would be open to Maling as an elector. | ’Mr Hearn has confirmed . to me by letter that no such;

resolution on the electricity committee's decision in my case has been made by the council. Although action is being taken against me in the name of the City Council, the council has no resolution in its minutes to take action against me.

‘‘But even if such a resolution had been made, it would have been a decision of councillors meeting as a council, and there is nothing in the Municipal Corporations Act to disentitle me from inspecting in the committee minutes resolutions made by councillors meeting as a committee. ■'ltie very size of some municipal departments governed by council committees has created a popular fallacy that the departments are separate entities, and therefore in a sense autonomous.” Maling submitted that any council and its committees were one single entity, as legally constituted, and were jointly and severally subject to the provisions of section 75 *T) of the Municipal Corporations Act. which compelled minutes to be open for inspection. This was not an appeal to gat access to secret discussions and speeches made by councillors at committee meetings. The minutes recorded only the facts and resolutions.

“Mr Heam claims that the minutes in question are the private and confidential business of the committee. This is incorrect, for the minutes are only the condensed record of the electors' business carried out by their elected representatives.” Maling said. "Held f'nsound” He sa.d that his argument that section 69 of the Act. which expressly required any questions coming before the council or any committee to be decided by open voting, implied subsequent open inspec'ion of minutes, was held by the Magistrate to be unsound. If the Magistrate was right, it would give to committee members a power and secrecy they ought not to possess in a democratic occr-m unity. “In i‘# final result it would impede the casting of intelligent votes and tend to maintain in office through lack of sufficient information available to the public those who gained seats on committees. The inevitable consequence is the infliction of petty tyrannies upon a divided, uninformed, and helpless public. In short, it is credible that it was ever ths intention of Parliament to deny electors access to committee minutes, Maling said. It seemed there were some committees, with something to hide, which would go to any length to obstruct the public in inspection of their minutes in the knowledge that the average elector could not spend or was unwilling to spend the time, effort, and money required to fight the committees in court.

On the other hand, Maling said, the Christchurch press had quoted the Timaru Harbour Board, the Timaru City Council and the South Canterbury Hospital Board as examples' of bodies which indicated their interpretation of their legal obligation and showed a commendable sense of responsibility, by making available to the public their minutes of committee mee'ings as a matter of course. After Maling had made further submissions his Honour said that Maling was not advancing his application one scrap. The present appeal was to be decided on his position arising as a party to an action brought by ’he City Council in the lower Court “What you have got to convince me is that the Magistrate was wrong in refusing you the order you asked for,” said his Honour.

Maling submitted that the Municipal Corporations Act contained no express right of inspection of the committee minutes, but he was certain the Legislature had not impliedly refused the elector a right of inspection of committee minutes. Sec’ion 75 and part six of the Act seemed to imply just the opposite. There was no statutory obligation for a council to embody in its own minutes a resolution of a committee. Section 144 of the Act provided a fine for any person obstructing an elector inspecting or copying municipal accounts, said Maling. Council's Submissions Mr Hearn, opening tor the council as plaintiff in the | original action and responI dent in the present appeal on I the Magistrate’s decision in I the interlocutory order sought I by Maling, said Maling might |or might not be an elector. There was no evidence before the Court he was. “In reply to Mr Maling’s submissions concerning the rights of electors to inspect committee minutes. I have nothing to say other than that, in the proper place, the council would deny allegations of secrecy, tyranny, or improper conduct of any sort,” Mr Hearn said. He said that section 71 of the Magistrate’s Court Ac: gave the right of appeal on a non-suit, a final decision, or a direction by a magistrate. The decision on the interlocutory proceedings the subject of the present appeal was clearly not a final deciIsion or a non-suit. His Honour agreed with this submission.

Counsel submitted further that the refusal to grant an interlocutory application could not be classed as a direction. Therefore, Mating had no right of appeal in the present proceedings. Referring to the Magistrate’s written decision to refuse Maling's application for an order to inspect the seven years’ record of the electricity committee’s minutes, Mr’ Hearn said it was

not a decision which barred; Maling from further steps. 1 The Magistrate had informed! Maling that toe usual pro-' cedure was to obtain an order for discovery of documenta, and then to apply for an order of inspection of the documents discovered. Connell's Offer No application for discovery had ever been made by Maling. What the council had done was to instruct an officer to go through the committee minutes and extract every reference and resolution which appeared in any way relevant to the action involving Maling All tois had beer, made clear to Mating, and also that the council officer was quite prepared to say on oath at any time that these references (supplied to Maling) were toe only relevant ones in toe minutes. Mr Hearn agreed with his

Honour that toe first reference (copies attached to the Court file) was dated August 28. 1958. Maling was entitled to see the originals of the copies which were relevant to his defence in the' action. “The electricity committee does regard its minutes es being confidential not from the view of keeping secrets from the public but because the minutes deal with matters raised by individual citizens.” Mr Hearn said. “The committee feels, much as it has helped toe appellant in this particular case, that he ought not be entitled to browse through the minutes and read what he will, willynilly. “All toe Magistrate's de-! cision has done is to inform Maling that the usual procedure is to look for discovery of particular documents and then apply for inspection of the documents discovered.” sai Mr Hearn. Counsel agreed with his Honour that rule 156 of the Magistrates’ Courts Rules did not impliedly state that any order for inspection must be preceded by an order for discovery. Counsel submitted that the general principles of interrogatories in relation to discovery meant that one party must not be subject to “fishing expeditions" by the other, or oppression. Maling just wanted to go on a fishing expedition through the committee's minutes for seven years. “If Maling will say what references or resolutions he wants, I will assure him that the council will do its best to meet his needs. The council has tried to be helpful to him in spite of his. perhaps, aggressive attitude.” Submissions in Reply In reply. Maling said that the council had not produced to him the minutes which were necessary to his defence. If his defence failed because of this and he had then to appeal on the ground of its refusal to inspect, it seemed to him a roundabout way of doing things. Mr Hearn had said the MED. was not tyrannical. He would not say what the M.E.D. had done to him, as this was not toe proper place to say it, but if he did so the Court might "well think tyranny too slight a word to use.” Not being a lawyer, he could not offer an opinion on whether a right of appeal lay in an interlocutary matter. “I have certain information from sources other than the minutes. I need to go through the minutes to add to and to substantiate my information. which is necessary to my defence of the council’s claim,” Maling said. “As far as an officer of the council going through the minutes is concerned, that does not help me. I do not rely on his judgment of what is relevant to the case. What may be irrelevant in his opinion may be relevant in mine. I object to the M.E.D being a judge in its own cause " Maling asked his Honour if it would be open to him to bring a case as an elector in regard to the right of inspection of council committee minutes. His Honour, as previously stated, held that such an inquiry would have to be the subject of other proceedings.