SPECIAL RATING AREA.

Hawera Star, Volume XLV, 14 May 1925, Page 12

SPECIAL RATING AREA.

I * ATEA COUNTY

supreme court decision

ORDER, HELD INVALID

A judgment was delivered on May 8 in the Supreme Court by his Honor .Mr Justice MacGregor, dealing with a proposed loan to be raised under special order made by the Patea County Council, which will be of very great imerest to all local bodies in the Dominion. By his decision, the Court has quashed the special order and lias made a perpetual injunction lestraiu.ng the defendant county from proceed■ng with the app ieation for the loan for metalling a special road. ■ Tne history of the question briefly is that, acting on a petition from the settlers along the road concerned in tli o Patea County, the Council made application for a loan of £2900 to metal that road. After the applk*tion iiad been forwarded, Mr R. Biemer, who had been absent from the Dominion when the petition was sent in. ••[aimed an injunction against the Counci' proceeding with the work, on the ground that the special order was defective and invalid. In December last an interim injunction was granted against proceeding, further with the said loan. At the first hearing, on December 19. his Honor, after hearing f ill argument, found that for the first time it was mentioned that the Coun-

cil, after confirming the special order, had passed a resolution purporting to make a special rate to secure interest .i.nd other charges on the said loan. Counsel contended that as this rate had been actually made, proceedings were barred absolutely by a section of the Coca] Bodies Loans Act. His Honor therefore ordered the whole matter to stand fiver for further argument and gave leave to the Council to set up the new facts by affidavit. The final argument tcok place at Wellington on May 4, and judgment was reserved.

On May 8 his Honor delivered judgment, making the order invalid.. After setting forth the conditions under which the loan was ordered to be raised, his Honor said the first question to be decided was whether the Council complied with the Act in the steps taken to raise the loan. He said that analysis of the question resolved itself into two branches: —(1) Mas the consent of the necessary majority of the ratepayers dulv obtained; and (2) was the special order itself properly passed by one County Council? The special order was made under Section 99 of the Counties Act, 1920, which sets out that the deciison to do anything by special order shall be exercised only it the resolution is passed at a specia meeting, confirmed at a subsequent meeting not earlier than four weeks, and not later than ten alter the special meeting, and if public notice of time and place of the subsequent meeting be given once in each of four weeks preceding the meeting. The special or-

der was attacked on two separate grounds: (1) That the public notice of the “time and place” fixed for the confirming meeting was not given; and 2 ■,i;i.' the “object or purport” of the resolution was not stated in the public notice given of the confirming resoliit.ion—in terms of section 99. From the affidavits it is quite dear that public notice of the “time and place” fixed for the confirming meeting was not in fact given. The second objection to, the sepeial order was not, lie said, quite so obvious. The “object or purport” of the resolution is thus stated in the public notice produced with the affidavits: “For the purpose of metalling for the first time “the Hukatere and Qtautv. roads.” It was admitted on behalf of the Conntv Council at the hearing that the “object or purport” of the resolution in question was not accu-

lately stated m this public notification. The real object or purport of tlie resolution was admittedly not to meta 1 for the first time the Hnkatere and Otaiitu roads, as publicly notified, but to meta 1 a part only of the Hukaterc road itself. It was clear law that the provisions of an Act of Parliament regarding procedure by “special order’’ are mandatory, and must be strictly followed, it was contended by counsel that the proceedings, even if irregulai or defective, were not, void, and could have been validated by ihe GovernorGeneral in Council, and that the question was whether the matter had been fairly put - before local ratepayers. His Honor then added that the question remained as to whether the consent of the necessary majority or the ratepayers concerned was obtained, and this, it was argued by counsel for plaintiff, was not so obtained, and that some signatures to the petition had been withdrawn. It was clear, added his Honor, that the Council proceeded with the application knowing that these names had been withdrawn, leaving 'ess than the majority required by Act. In concluding his judgment,' his Honor sad he was therefore “of opinion that the plaintiff is entitled to an order for a certiorari and a perpetual injunction as claimed. Judgment will be for the plaintiff accordingly in terms of his respective notices of mo tip n. The defendant county council is ordered to pay to the c’aintiff ns his costs the sum' of £ls

15s and disbursements, in addition to the £lO 10s costs, formerly allowed at New Plymouth. “J think it right.” said his Honor, “to add that this case was exceedingly well argued by Mr Spratt for the. plaintiff and hv Mr Weston for the defendant county council.” >