CONDEMNED SHOP.

Dominion, Volume 4, Issue 1198, 5 August 1911, Page 6

CONDEMNED SHOP.

. THE GILMER APPEAL. . WHAT HAPPENED IN FULL COURT. CURIOUS POSITION, "In tho interests of tho public it is to be sincerely hoped that before furthei proceedings aro commenced, zealous care will bo .taken and public • money saved from being wasted by inattention to statutory requirements," said Mr. -Juatico Edwards yesterday in the course oi Ins judgment • 011 tlio appeal of Hamilton Gilmer against a decision of • -Ur. a. M'Arthur, S.M. (delivered m May last), in tho case in which James Doyle, yjty Sanitary Inspector, sued ..Hamilton »"- mer, of Wellington, for failing to comply with a notice to pull down a conut-mneit building known as "Warnock and Adlun s, 205 Lambton Quay. „ nir „■ Dr. Frengley, District Health Officer, had certified Hint tho building was unfit for occupation, and dangerous to public health, and as a result defendant had been served with notice' to pull it •but had not done so. The hearing extended over four sittings, and on 51ay 2G t'ho magistrate delivered his judgment, in tho course of _which he said:—"A similar information in respect to tho same building was laid in the year 1907, and canio before the Court on December 11. No defence was heard, as the matter was settled by tho parties. Tlio agrecinent v was put in on the . following day, December 12, • 1907,' and is as fol(1.) Several improvements named to bo dono forthwith to tho satisfaction ' of the City Engineer. : (2.) 111 tho event of the buildingbecoming ruinous or dilapidated, the City Corporation reserve their right to proceed under Section : 350 of the Municipal Corporations Act. ; (•3.) In case any further condition should arise which, in tho interests of health, should necessitate the Health Officer requiring, in the interests of public health, further works 011 the premises, then the owner shall i executo'such-works-so far as he can, ■ it' being 'left to the Health Department not to rcquiro unnecessary works, having regard to the necessity of pulling down the building and to all the; .circumstances. . . ■ . , (-1.) Tlio owner to piill down'and re- ' move''Hie building within three years from date. (5.) Leave, to apply if works are not carried "out within three months.

Tlio agreement is siirned by counsel for the owner, and by the City Solicitor. Tho reasonable meaning of this agreement is that certain improvements aro to bo done forthwith; and further improvements if found necessary; that, if the building bec.amo ruinous or dilapidated, the corporation should proceed under Section 350 of tho Jl'unicipal Corporations' Act; that tho owner should pull down or remove the building within three years; and that, if the works stated were not carried . out. within threo months leave to apply for an order bo granted. Tho threo years' life, extended to tlio building, expired at the end of tho year ,1010. In February of. tho present year application was .mado to; mo by tho City Solicitor' for ah order -to, pull..'down tho building,' in other , words, .'asking ino, to enforce a specific agreement between two parties. I did'not consider that a matter of specific performance was, within tho scope of' the jurisdiction of this Court, and. thus declined to make the order based on that agreement. Now proceedings., have .been taken, and I, have heard the evidehco of both parties. At the. .•close of :complainant's.cose, counsel for complainant put in tho agreement.-.'Coun-sel for defendant objected. I admitted the agreement. Counsel for the complainant contended that defendant was estopped, by • reason of the agreement signed by him, from setting up a different ! set of circumstances, from; those set up

in tho agreement."; His Worship remarked that estopped was not a . cause of . action, but a rule ofevidence to prevent .a person from .dohyiiigjwhat ho said: he is to bo put in tile sain'o'. position as if tho statement were true. .Then, after quoting a large number of authorities, his "Worship concluded: "On. tho'legal aspect of the-case, I am of opinion that the complainant must succeed, and tho defendant fail. I, therefore, order that tho building be - taken ■ down within thirty days. Should my judgment be upset on appeal, I shall then bo prepared to consider the evidence laid before me."

Notice 'of- appeal was duly given and tho case caino on in the Supremo Court yesterday ■ before the Chief Justice (Sir Robert Stout) and Justices 'Edwards and Chapman. Mr. T. W. Hislop appeared for tho appellant and the city solicitor (Mr. J. 0 Shea) for tho respondent. " At tho outset Mr. O'Shea raised tho preliminary point that there was no appeal against tho magistrate's order.' Tho proceedings in the court below had been by; way of complaint under the Justices of tho Peaeo Act, but. there was .really no authority, for .such procedure.. It must be treated as an application. All tho proceedings were civil, and there was no provision, in tlio-statute for appeal. Mr. Hislop contended thero was a right, of appeal, for although the proceedings wero civil the offence rendered tho .offender liable to a fine. Mr. O'Shea here interjected that no fine was provided for. The Chief Justice: Is there any provision in tho Act, Mr. O'Shea, to allow Mr. Doylo to make the complaint? Air. O'Shea: No, your Honour. He did it by instructions from tho City Council. Mr. Justice Edwards: Well, it lis not a matter like mending a water tap.' Mr. O'Shea: I don't think Mr. Doylo mends any water tans, your Honour. Mr. Justico Edwards: This is a serious matter. Mr. O'Shea: Well, your Honour, I appeared beforo tho magistrate and. made tho application and I have authority under Heal. Mr. Justico Edwards: T\ell, you are not the corporation. I am sure you have no authority to make tho application. Mr.'Justice Chapman: Have von authority under seal to make that particular application? Mr. O'Shea: No, but there was a resolution of tho council on the question. Mr. Justice Edwards: No one would dream of giving such authority to a corporation officer. His Honour went on to say that the right of tho City Council to pull down tho building was wholly dependent on tho present condition, but the magistrate had not considered the evidence as to tho stato of tho building. Ho had, in fact, studiously avoided doing so. Mr. Justice Chapman: He was quite right in receiving that document as evidence, but it is only evidence. Mr. O'Shea: It is a contract capablo of being specifically enforced. .Mr. Justice Cliiipman: Then the proceedings must be by a suit for specific performance and not by tlijs process. The Chief Justico: This, however, all pertains to an issue that is not really before the Court.

Mr. IJislop was proceeding with his argument on the right to appeal, when t'lie Chief Justice intimated that the Court was of opinion that there was no right of appeal, "'l'lio magistrate's order," continued liis Honour, "is under a "special provision in a special statute. The proceedings are based on Sections 291 and 292 of the Municipal Corporations Act, and Section 292 provides that certain powers' that, are set forth under the twelfth schedule may be exercised by the municipal corporations. The twelfth schedule also provides how these powers aro to bo exercised. The council niust give notice to tho owner of the building to pull it down within the time spccificd. This notice may be signed by the Town Clerk or bv two councillors. I assume that that has been done. The nest tiling is that there must bo an applicaton to two justices of the peace or to a magistrate. In my opinion the' present proceedings bv way of a complaint taken by E. J. Arnold, ,1.1'., were not the proper proceedings. There has lo be an application by tho council. The "safe and proper course would bo to apply under soal to the magistrate by whom tho case would ultimately bo decided and application should bo made in the form and not by way of a complaint mafic to E. .1. Arnold, J.?. Supposing that an application had been made to tho magistrate and ho proceeded to hear tho ease in the ordinary way. What would have happened:» Ho has not. found a fact but has found that because thero was an agreement . some years before, the. defendant is stopped from defending tho action. That is not the way it should have been put. lie could hare received tho document as evi-

denee and take it along with the other evidenco and found as a fact that' the house was insanitary and then his deci sion could not have been disturbed bv any Court. That, however, is not before

us. In our opinion there is no provision ill our Act for an appeal from an order made by a magistrate. The Court must dismiss tho appeal on tho ground of no jurisdiction." •Mr. Justice ' Edwards said: "I am of tho same opinion. In the first place, it appears to me to be clear that there was 110 proceeding properly before the magistrate. The application under tho twelfth schedule must bo made by the municipal corporation. There can bo no doubt that it must bo mado under tlio seal of tho corporation or by some officer authorised by tho statuto to make it. It may or may not lie that Section 3G2 of the Municipal Corporations Act applies; but no prudent person would allow the possibility of any question as to that to arise, as it is perfectly easy to make the application under seal. If there was no proceeding properly liefore the magistrate he could not adjudicate in the matter. His decision is a nullity, and from a nullity there is 110 appeal. If the proceedings had been properly before the magistrate thero could still have been no appeal. Tlio jurisdiction under the statute is to a special tribunal, from whose adjudication 110 appeal can bo unless an appeal is authorised by some statute, and thero is no such authority. As to the merits of the case, these are not properly before tho court, but I think we are justified in giving such an expression ot* opinion as will prevent the' squandering of public money. If the merits of the case aro looked at, it is perfectly _ plain that the adjudication of the magistrate could not be supported.' He acted upon the agreement entered into three years ago,'and studiously refused to consider the present position of the building, which alone would have justified tho making of tho order. No doubt he was, entitled to receive tho in evidonee, and it may even be that in the absence of any evidence showing that there had been a change in the condition of the building, ho would have been' ]ustined in treating it as conclusive in the matter. 111 tho interests of th,o public it is sincerely to be hoped before further proceedings are commenced, zealous care will bo taken and public money saved from being wasted by inattention to statutory requirements.'" , . Mr. Justice' Chapman concurred in the views of the Chief Justice and Judge idwards. ■