COURT CANNOT SUPPLY LEGISLATIVE OMISSION

Manawatu Times, Volume LIV, Issue 7060, 7 November 1929, Page 6

COURT CANNOT SUPPLY LEGISLATIVE OMISSION

Granting of Licenses

PARLIAMENT SHOULD AMEND PRESENT ACT appeal dismissed.

Per Press Association. * WELLINGTON, Last Night,

Mr Justice MacGregor delivered the judgment of the Court of Appeal m the case Scales versus Young, in the course of which he said: “In this case tho Mid-Canterbury Licensing Committee has refused plaintiff’s application for a publican’s license, on the ground that it was not satisfied it had any jurisdiction to entertain it. The question now to be decided by this Court, on the motion for a writ of mandamus, is whether or not there was jurisdiction in the committee .to hear and determine plaintiff’s application. The answer to that depends on the true interpretation to be placed on tho relevant previsions of the Licensing Act, 1908 and various amendments thereof. ’ ’

His Honour then proceeded to deal .with these statutory provisions and cases cited by counsel and concluded his judgment as follows: “The result is that I feel myself now to bo in much the same position as the majority of the judges of the Supreme Court in tho case Smith versus McArthur and others. In that case, these eminent judges thought it plain, as apparently is the case here, that the contingency that had arisen had not, in fact, been present in the minds of the Legislature when the Acts were passed. “As Mr Justice Dennistoa said in that case: “I have pointed out the gravity of the consequences of the omission and I bavo indicated my opinion that it is net only the right but the duty of the Court to struggle to the fullest extent to avoid the conclusion that there has been such an omission but if the court cannot, with the aid of the context and the rest of the Act, avoid the conclusion that there has been an omission, it cannot, on account of the consequences take it on itself to supply such omission and read into the Act what it may think Parliament would have done had its attention been drawn to the omission.

“I regret to say that this appears to me to bo the legal position here, Also, in these circumstances, I desire respectfully to repeat the views enunciated by Mr Justice Denniston in the closing passage of his judgment in Corby v. McArthur and others: ‘lt is the Legislature and not the Court, which is responsible for the hardship and it ie from the legislature that the remedy musit be sought. I will not speak of the existing state of the law as a scandal, for such language would not be respectful and legislators are not more infallible than the courts but we are justified in concluding, with confidence, that no legislature will hesitate when tho omission and its serious consequences ore pointod out by the body whose duty it is to interpret law, to supply the omission and as far as possible, correct and avert such consequences.’ ” The unanimous judgment of the Court was that plaintiff's motion must be dismissed, with costs, 50 guineas, and disbursements.