HARBOR PLANS.

Gisborne Times, Volume LIX, Issue 9575, 28 July 1923, Page 2

HARBOR PLANS.

G. H. LYSNAR AND HARBOR BOARD. TEXT OF- THE JUDGMENT. ■This is an appeal by the Gisborne Harbor Board' against the judgment given in an action and an order made in that action in favor of one George Henry L-ysnar against the Board. The action was based on the allegation contained in paragraph 2 of the Statement of Claim, which is as follows: j “2. Before the month of April ! 1917, the plaintiff devised a scheme . for providing an effective harbor for the port of Gisborne, the principle, of . the scheme being that the Turnn- ! ganui river should be diverted from its course as then and now existing by the'crection of a wall commencing at a point on tire eastern side of the Kaiti bridge, over the said river, and proceeding in a southerly and westerly direction, so that silt and driftwood which in time of Hood or fresh was and is carried into the said Turanganui river from the Wairnata and Taruheru rivers and the Waikanac creek should be carried away in such diverted chaffhc! into the open sea to the west of a proposed breakwater, leaving that part of the said Turanganui river which was not included in such proposed new channel open as a site for wharves in the said harbor of Gisborne.” it was also staled in paragraph M as follows: “J. The plaintiff's said scheme also compiiscd provision for tho removal of a groyne then and still existing on the western side of the Turanganui river in the said harbor for the construction of a quay, and wharves for the erection of a breakwater and a protective wall on the eastern side of the proposed 'harbor, and a further inner wall to piotcct the said quay and wharves from the range of the ocean.” “Paragraph 4 said: “4. Pursuant to and for the purpose of setting out his said scheme, the plaintiff prepared a plan descriptive thereof and three tracings showing sections of the said plan, together with a written description of the said scheme. These statements were the basis of the plaintiff’s claim, but the plaintiff also set out an agreement made on May 28, 4917, between the plaintiff and the Board, and seems to have relied on it, elso why set it out in his claim? This agreement had tho 1 following provision: “2. That if at, any time hereafter the Board should adopt such scheme or any part thereof either in its entirety or substan-tially-tho same scheme or idea, with any alterations, extensions, or modifications the Board or its advisors may think necessary for the more \ complete or successful utilisation of the idea or scheme, then the Board will remunerate the said George Henry Lysuar by such sums of money i as the Board may consider fair and 1 reasonable (having regard to the ad- j vantages and benefits the port of ! Poverty Bay will derive from adopt- ; ing the said idea or scheme), hut I such remuneration shall not he less , than one pound (£1) per cent., calculated upon the cost of carrying j out tho said idea of scheme, payment j to be made in the way an architect j is usually paid. Provided always that ! the said George Henry Lysuar is not j to supply the said Board with any j further plans, specifications, or any- ' thing more than the general outline 1 of tile idea or scheme, together with the said sketch plan.as the necessary details and plans are to he worked out and provided for by the said

Board. ’ ’ This agreement was held by this Court to bo-void, being ultra vires of tho Board, and it, therefore, in my opinion, can have no hearing on this action, because the Board was not hound by it. The learned Judge in the Court below in “his findings of fact” found that Reynolds’ plan, which is tlie plan that was said to be a breach of the copyright of tho plaintiff, disclosed no “literary piracy” and that there was no infringement of anything of which the plaintiff has copyright. Tho four findings of fact wore as follows:—(1) The idea or scheme sketched by Lysuar in iiis 1.91.7 plan and description is the basis of Reynolds’ 1921 plan.

“(2) Such idea or scheme lias been closely examined and all necessary indopudent work has been done by .Reynolds to test mid - Drove its feasibility. “(3 Having satisfied v himself on this latter point. Tte.vne.id<-:’ plan has been independently drawn to delineate and present with engineering skill the .scheme so sketched and described by Lysnar with such variations as independent enquiry and labor suggested. “N) The result, of lccessity. is that the two plans are in general features alike. As Mr. Fitzgerald says, ‘There are good engineering reasons for any difference that may be between the plans.’ ” On these findings his Honor held “that theso findings of fact dispose of the matter so far as this phase of the question is concerned, viz., they disclose no literary piracy, and, therefore, there has been no infringement of anything of which the plaintiff has copyright.” His' Honor, however, found that the plaintiff was entitled to an injunction upon the ground that the ciieumstances on which the defendant Board acquired the ideas' present in Reynolds’ plan and description are such that it is a breach of faith on the part of the Board to publish them. It has to he observed, that no ! action has been commenced against ; Reynolds. What, then, has the j Board dene? The Board has used a ! plan which is not a “literary pi- , racy” of Lysnar’s plan. On what ground then can they he enjoined from using it? The plan is not theirs; it was Reynolds’ plan, and if Reynolds’ plan has been independently drawn to delineate and present with engineering skill the scheme sketched, and described by Lysnar with such variations as independent labor and enquiry suggested, it is a new plan and is distinct from Lysnar’s plan, and why, therefore, cannot the Board use it? Tho consideration of this- position would, in my opinion, compel the Court to hold that the judgment in the Court he lew could not he supported. What '

I may do tenneo. mo "oasis' or me case may. hcnvover, lie examined to see whether there is-any ground foi tin* injunction. ' First, the Board is nob bound by the contract on which the action in said to he based; hut even supposing it were bound, then there is this provision in the- contract, namely, “it is a condition of this contract that tiie said scheme or idea is novel and has never previously been u I seed before the Board.” if. then, bho respondent has'failed to prove novelty in his scheme his action must fail. What, then, is the idea or scheme? The idea or scheme is stated in the

already quoted paragraph 2 of the Statement of Claim, namely, that the Turanganui river should be diverted from its course as 'then and now existing by the erection of a wall, as already quoted. Was it, then,' a novel idea to divert the Turanganui river from the harbor? That cannot bo said. The question of a harbor in Gisborne is a very old one. Gisborne harbor was. created bv a statute of 1882. This Act referred to avhat was called the ‘‘Port of Poverty Bay,” which was defined in the Gazette of May 26, 1874. The name of Poverty Bay was changed into Gisborne, and the harbor became, instead of the Port of Poverty Bay the Gisborne Harbor; and sinco its .creation in 1882 there have been many suggestions and plans made as to the creation of a harbor. A small harbor was formed at Gisborne. It’ involved the utilisation of the Turanganui river, ( and this harbor was used for smaller.-

vessels for many years. As the trade of the port increased, however, this river was found to bo too small, and the suggestion was made that there should be a larger harbor created. So far back as 1910 the plans of such a harbor were, prepared by the Marine Department of the Government and tho plan is before the Court. It provided for a harbor on the eastern side of the harbor at Kaiti, and that pdan did not allow the river water to come within the harbor. The river was left flowing to the west of the harbor, and. a wall formed its western boundary. That scheme was a harbor without the river passing through it, and was on tho' western side of the harbor. Further, it is plain that Mr. Reynolds himself prepared a pilau in 1892 in which ho provided for tho diversion of the river. This pilau has been before the (Joint, and it was submitted to the Board in 1892. it is clear that the pilau provided, as is stated in Reynolds’ evidence, for the diversion or, as some of the engineers call it, tho deflection of tho liver to the west of the harbor. Tho river was not to enter the harbor. In .1916 there had been heavy floods in the river, and tho silt brought down by the river was such that it filled upi the existing harbor and made it useless. The cutting down of tho forests and bringing of the hack lands into cultivation had largely increased the quantity of silt that was brought down in liood times In the rivers flowing into the bay. This occurrence made a means of getting rid of the silt a necessity. Mr. Reynolds’ plan of 1892, having shown that provision must be made for a diversion of the waters of the river to the west of the harbor, how can it he said that the idea of diverting tho river from its course to tho westward and to he outside of the harbor was a. novel idea? But that is not all. It -si lows there was no novelty in Lysnar’s pilau. Greig’s pilau, that was put before the Board in 1917, on the same day as Lysnar’s plan was received by the Board, provided for the diversion of the river to the west of the harbor. Further, before either Lysnar’s plan or Greig’s pilan was received a repiort had been made so far Lack as December 18, 1916, by Mr. Ferguson, civil and marine engineer, which showed the need of providing lor the silt brought down bv the river, it said:—

“It is therefore certain that no matter what class of harbor is required, large or small, or merely an extension of the wharfage accommodation in the Turanganui entrance, it is essential that the river waters must lie kept from entering such harbor. This can he done in two ways, firstly, by constructing the breakwater as an extension of tho groyne on the north-western or town side of tho river, thus reducing the area of the harbor piroposed by Mr. Holmes by the width of the existing channel, some 300 feet. If this was done the waters of the Turanganui would he discharged outside the new harbor and clear of its entrance, but during the pieriod of construction of ti)t> new works and until they replaced the Turanganui port, the ova's that were found when the groyne overlapped the end of the breakwater would he re-produced and intensified and a cross-chopipiing sen would run into the river entrance and practically the piresent piort would be closed. This suggestion must therefore be dismissed.” Another suggestion had been made by Aliy Barnacott, another engineer, which was that the liver should be taken to the east of the’harbor, hut Mr. Ferguson disagreed with the suggestion of taking the river to the east oi the harbor. If, therefore, the liver‘must lie kept out of the liar bur, and it could not he taken to tin cast of the harbor, there was no other way hut to take it to the west of the harbor. .In winding upi Ins report, Mr. Ferguson said:— “My reply is that 1 consider that marine observations should’ lie made and data of all kinds obtained to enable schemes to he designed and estimates prepaired : “I. For a harbor in the Awapuni lagoon* “2. For a combined inner and outer harbor at the mouth of the Turangamii, including the diversion of the. river from present- entrance channel, such scheme to he with or without developments at the mouth ot and in the present AVaikanae creek.' ’

j -Mr. Ferguson had therefore pointj ed out that there was practically no I scheme to get rid of the silt if a ! large harbor were desired, except by ! a diversion of the river, and it would not lie a diversion of the liver to ■the east side. As already pointed out Mr. Greig’s plan or scheme provided for tin l diversion of the liver to the west of the harbor. How then can it be said that, the scheme or idea of Lysnar s, which is the main part of his claim and is, in fact, the basis of ; ins claim j in the action, was novel ! and had never been previously placed before the Board? I. am of opinion that on this ground alone the action must fail, because u ■ is dear that Reynolds’ idea, which j he afterwards fully carried out in his . plan of 1921, was a plan by which the river was to he taken out of its course and to the west of the harbor. That appeared, as has been pointed out, in his plan of 1592 and it- also appears in his larger plan of 1921, which provides for an outer and an inner harbor. It may he pointed out that the plaintiff Lysnar gave no evidence on Ids own behalf. He may have seen Reynolds’ plan of 1892. or lie may have got what ho calls his “idea” from Ferguson’s report* or other

: .sources, j Tlic Chief Justice then said: j“I ho plan that is said to ho an invasion of Lysnar’s idea and of his rights is the'plan of Reynolds, dated May 30, 1921. It is not Lysn:;r s plan that is- asked to bo prevented from being used; it is Reynold';’ plan which the court lias found was not a literary piracy. Due has only to look at Reynolds’ plan to sec i fb.it, though there are similarities, yet them arc also dissimilar ities between his plan and Lysnnr’s. For example, first, the contour of the moles in Reynolds’ plan differs from tho moles in LysmuV plan; second, the mode in which the river is dealt with is different. Ih.s is-pointed out by Mr Fitzgerald in his evidence; and, third, the walls are different. The eastern wall is <1 iff went, a.nd the fourth outer breakwater is different in shape, in size, and slightly in situthat Reynolds’ plan of 1921 was a literary piracy of Lysimr’s plan. “By what authority or principles of law could a court issue an injunction to restrain the board from using Reynolds’ plan? It was not using Lysnar’s plan. The words of the order of tho court were that they wore not to multiply copies of the plan nor to publish in any form any plan, drawing, or sketch setting out or involving the plaintiff’s 1 idea ’ or

' sell erne- ’ indicated by the plaintiff by means of plans and description to the board on Muv 28, 1017, ‘ including the plans or drawings or sketches prepared by one Leslie Hunter Reynolds or by his direction or any other employee ov servant of the defendant board.' ‘‘That means that a plan that provides for the diversion of the river out of the harbor can never be used by the board,” declared His Honor. “There is another answer to the respondent’s claim, for an injunction. His plan was published in a public newspaper circulating in the district on Juno 26, 1020. And hs there is no copyright in his plan, how can lie restrain anyone from publishing what ho has already published ? It is unnecessary to deal further with the reply to in's action. ... I am of opinion that it is enough to state what the effect of the order is to siipw that the plaintiff is not entitled to such an injunction. First, his scheme was not novel; second, Reynolds’ plan and proposed work differ £rom the 1

scheme or idea and phyi of the respondent. Tho respondent has tijereforo failed to show that lie has any right to restrain the hoard from using Reynolds’ plan.” The Chief Justice was therefore or opinion that tho appeal should be uphold, and that judgment should be given lor tho appellant, with costs on the highest scale. 'Mr Justice Sim, Mr Justice Hosking, and Mr Justice Stringer, who were the other memoers of the court, concurred that the appeal should lie allowed.