Judge upholds bid for rehearing

Press, 11 April 1978, Page 10

Judge upholds bid for rehearing

The allegation was that the police had wrongfully seized a car but when the case came before Donald lain Neil Mac Lean, a Stipendary Magistrate, of Auckland, who was relieving in Christchurch, he appeared to be in a hurry and dismissed the claim without hearing submissions from counsel for the plaintiff, it was submitted by Mr D. I. Jones in the Supreme Court. In a reserved decision Mr Justice Somers has upheld an application by Max Erlescoiirt MacLarn, a sickness beneficiary, for a review! I I’ I I

under the Judicature Amendment Act of decisions by Mr Mac Lean, S.M., and John Dudley Kinder, a Stipendary (Magistrate, who refused to : grant an application by Mr MacLarn for a rehearing. I His Honour has ordered that Mr MacLarn’s action be [reheard in the Magistrate’s [Court. The car involved in the alleged unlawful seizure by the police is a 1956 Austin A5O valued at $l6O. In the application made by Mr MacLarn to the Supreme I Court the Attorney-General [was cited as the first respondent, the Commissioner of Police as the second respondent, Mr Mac Lean, S.M., as the third respondent, and Mr Kinder. S.M., as the fourth respondent. Mr D. J. L. Saunders appeared for all respondents. Mr Jones said that Mr MacLarn bought the rather elderly Austin car from a man named Tranter for $l6O. He received a receipt for that amount and it was registered in his name. The transaction took place on December 31, 1975. After Mr MacLarn drove the car for a period it disappeared. From inquiries he made he learned that the vehicle had been seized on January 16, 1976, by two police constables acting in: the name of a man named Lynch who purported to own it. Because he considered that the constables had no right to take the car Mr MacLarn sought recompense from the police but this was refused. He then instituted proceedings in the Magistrate’s Court for wrongful or negligent conversion by the police. Mr MacLarn denied that the police took the car with his consent or that Thomas Lynch was the legal owner, said Mr Jones. The case came before Mr Mac Lean, S.M., on July 21, 1977. Mr MacLarn gave evidence and produced the ownership papers, which were in his name. The Magistrate refused to hear submissions from counsel and dismissed the case. The Magistrate seemed to be in a hurry to finish the sitting and counsel asked the Magistrate to note his objection when he was not, given the opportunity lo I make submissions. The! Magistrate implied that he ; (Mr Jones) would be wasting' his time in addressing him,' said Mr Jones. Mr Saunders said that he was a little suprised in the way the Magistrate had conducted proceedings. He had intended to call evidence on behalf of the police. He would have been happy fori all the evidence to have' been called and the matter' then determined. In his decision his Honour j said that Mr Mac Lean had' begun the hearing with an announcement that the action was one to which section 59 of the Magistrate’s! Court Act applied. That section read: “Equity and good conscience, — Where the amount claimed or the value of the property claimed does not exceed $2OO, a Court may receive any such evidence as it; thinks fit, whether the same be legal evidence or not. and; may give such judgment be-: tween the parties as it finds) to stand with equity and good conscience.” “The power to receive any evidence, whether legal or not. necessarily imported that some decision about the application of section 59' might have to be reached; during the course of the) hearing,” said his Honour, i “It would. I think, be; difficult in many cases to reach any final view without; hearing all that is preferred; in evidence strictly so-called' or otherwise. On the other hand, without some intimation counsel no doubt feel confined to the rule of evidence. “Often the appropriate course may be to reach and express a tentative view and

receive inadmissible evi- ■ dence de bene esse. To reach! • a concluded view before the ■ parties are heard means that i reliance must be placed • solely on the pleadings. “However that may be, I where, as here, the case is i one made against an agency i of the executive arm of Government involving an allegation of tortious conduct, ■ a final determination of- the i'pleadings seems unsuitable,” j said his Honour. ■| The plaintiff gave evi-l ; j dence. It was conceded by! 'Mr Saunders that evidence; j established possession and! : the taking of the car by the ) police. It also contained a| I denial of any consent to the ! taking. Section 59 apart, the} plaintiff had at that stage; .proved all that was required Ito be proved by him to sue-! jceed in conversion. • After the plaintiff gave; i evidence and without hear-; ing a further witness for thei plaintiff, whose evidence' was conceded by Mr Jones i to be formal, the Magistrate! said that in equity and good; • conscience judgment would be given for the defendant.! Mr Jones sought and was! denied the opportunity of I making submissions. The plaintiff at the con-! elusion of his evidence had; established a case in law.! There was nothing else save! the pleaded defence. It had! to be shown by the policed that he had either consented! or that there was a ius ter-1 tii. “In this case I do not think the circumstances were such that, it was possible to exercise the power conferred by section 59 at} the point of time chosen by; the Magistrate,” said his I Honour. "Either he assumed) that the police would make; good in fact one or other of I the defence pleas or took ! the view that it did not mat-I ter, an approach which I do \ not think can be correct in) the circumstances of this • case. “The expression ‘equity I and good conscience’ carries' : with it the notion of fair! land reasonable. It is a judg-i • ment upon the conduct of; i the parties. The Magistrate i lin this case had not before) j him any material which, could have led to such a de-; , termination. ! “There will be an order! ! that the plaintiff’s action be) .'reheard in the Magistrate’s; j Court.”