TAKAPUNA TRAMWAYS.

New Zealand Herald, Volume LVI, Issue 17274, 25 September 1919, Page 9

TAKAPUNA TRAMWAYS.

CURTAILMENT OF SERVICE,

SUPREME COURT ACTION.

PRELIMINARY LEGAL POINTS.

Matters relating to the complaint* which have been made from time to time by residents of the Takapuna and Milford districts concerning the inadequacy of the Takapuna Tramway Company's service,

more particularly the proposed curtailment in the Milford service to one tram in

every two hours, were the subject of legal argument at the Supreme Court yesterday, before Mr. Justice Cooper. Recently four ratepayers of the Milford district filed an originating summons under the Declaratory Judgments Act, 1908, the effect of which will be, when argument on the summons is heard, to test the legal

position of the Tramway Company in curtailing the service below what is 6aid to be the requirements of the public convenience, and also to decide which local authority—the Takapuna Borough Council or the Waitemata County Council—or if either of these bodies has the legal right and authority to compel the company to conduct its undertaking in conformity with the provisions of the original Order-in-Council and the deed of delegation. The ratepayers in question were Reginald E. Cunningham, Frederick W. Retter, Albert Fulljames, and Edward Grimwade, plaintiffs to the originating summons. Theyiwere represented by Mr. A. M. Gould. The defendants were the Takapuna Tramway Company (Dr. Bamfordl. the Takapuna Borough Council (Mr. Reed. K.C.. and Mr. Lowrie), and the Waitemata County Council (Mr. Bagnall).

Standing of Plaintiffs. Certain preliminary technical objections to the originating summons were raised yeste.vday. The summons itself was attacked by Dr. Bamford, who moved that the -Thole proceedings be set aside, on the ground that the plaintiffs were not parties to the deed of delegation entered into by the company and the Waitemata County Council in 1908. Dr. Bamford said the proceedings should | be set aside because the case was not one that could be properly dealt with under | the Declaratory Judgments Act. The - appropriate remedies were contained in the original Order-in-Council and the deed of delegation themselves, namely, a power for the Governor-General to impose fines for a breach of the Order-in-Council, and a power for the local authority to act similarly, or to exercise the right of rescission for a breach of the deed of delegation. Dr. Bamford said the pionts at issue ware purely academic, no dispute J had arisen between the parties to the deed 1 of delegation, and the local authority had I not demanded from the company anything I more than the company was already doing, 'consequently there was no dispute or controversy for submission to the Court. i Under the Order-in-Council the GovernorGeneral was the sole judge as to whether provisions of the Order-in-Council were being complied with. When the tramway was constructed its route was entirely in the Waitemata County. Subsequently the Borough of Takapuna was formed, and the question was whether the Borough Council had succeeded to the rights of the County Council. That was purely a question of law, in which the plaintiffs had no interest. Borough Council as Plaintiff. Mr. Reed said the Borough Council realised that the ratepayers were interested in the present case, and for that reason was willing to be joined as a plaintiff, in order to facilitate a settlement of the dispute. He applied for the Takapuna Borough Council to be struck out as a defendant to the action and to be joined as a plaintiff. This was desired in order that any technicalities regarding the standing of the original plaintiffs would not prevent a settlement of the dispute. His Honor agreed to the amendment asked for by Mr. Reed. Dr. Bamford contended that the Borough Council had no locus standi in the case, and in terms of his motion he asked that the council be struck out as a plaintiff. The County Council was the only local authority with, any legal powers in the case. Dr. Bamford contended that assuming the Borough Council was held by the Court to be the proper local authority there was still no case, for the Court to decide under an originating summons. The machinery in the Order-in-Council and the deed of delegation had not been brought into operation. As an alternative, Dr. BamfoTd asked that the affidavit filed by the plaintiffs in support of the originating summons be struck out on the ground that it contained irrelevant matter, was intemperate in its language, was argumentative, abusive, incorrect, and inferential in its nature. Reply to Objections. On behalf of the original plaintiffs Mr. Gould said the clauses objected to, although not relevant for the purpose of construing the Order-in-Council and the deed of delegation, were relevant to show that, the plaintiffs had sufficient interest to give them locus standi, and to show that there was a controversy which a decision on the point of law would determine. The questions, therefore, were not purely academic, the plaintiffs had an interest, as they and the other residents were inconvenienced by the curtailment in the Milford service. They also had a pecuniary interest, inasmuch as their enjoyment of the resident*' concession tickets was to some extent dependent on the answers to the questions of law. The three of the. four plaintiffs who were members of the Takapuna Borough Council were proper plaintiffs because until a decision on the questions of law was given they were hampered in the performance of their duties. Mr. Reed argued that the Court had jurisdiction to hear the case under the Declaratory Judgments Act. In the course of further argument counsel reached an agreement that the Court should not be expected to decide any question of fact, but purely questions of law, and that the paragraphs in the joint affidavit of the plaintiffs should not be read except for the purpose of showing the propriety of the procedure. His Honor intimated that he would give a decision on Saturday on the legal objections raised by Dr. Bamford.