JUDGMENT UPSET.

New Zealand Herald, Volume LXII, Issue 19141, 6 October 1925, Page 12

JUDGMENT UPSET.

THE MANGAWARA DISPUTE. COMMISSION NOT LEGAL. APPEAL COURT'S DECISION. [BIT TELEGRAPH. —PRESS ASSOCIATION. ] WELLINGTON. Mondav. The Court, of Appeal was engaged this morning hearing an appeal from the decision of Mr. Justice Herdman in an action heard at Hamilton in March. The appellant was Edward Charles Pilkington, of Tanhei, farmer, and respondents Frederick William Plaits, of To Kuiti, stipendiary magistrate, Alfred James Baker, of Auckland, Public Works engineer, Ernest Feltus Adams, of Thames, civil engineer, L. R. W. lie id, W. D. Thompson, E. A, Thompson, G. E. Buck, George Proctor, Tom Marchie., C. A. L. Thompson, B. Thompson, D. S. McKenzie, R. A. Cuff, C. A. Green and C. A. Proctor, all of Orim, farmers, and W. S. Carter, of Wellington, fanner, and the Mangawara River Board. The facts,are that in November, 1923, appellant and others presented to the Governor-General in Council three petitions praying respectively for abolition of the Mangawara river district, for exclusion of the Tanhei subdivision from such district, and for the exclusion of the lower subdivision from such district. In February, 1924, the Governor-General in Council set up a commission for the purpose of inquiring into the petition, and also into the alterations of the boundaries of tho Mangawara river district, and the personnel of the commission was Frederick William Platts, Alfred James Baker and Ernest Feltns Adams. The last-named, Ernest Feltus Adams, had previously acted for the respondent board as a witness in support of the classification of the land in the district required for the purpose of rating, and this classification has, been generally adopted by the respondent board. It was this with which appellant and other petitioners were dissatisfied, and they lodged objection against the appointment of Adams as a member of the commission, but on such objection not being entertained they decided not to appear before the commission, which sat in the Magistrate s Court at Hamilton on March 17 and 18, 1924. Not Called to Give Evidence, It is alleged appellant received no notice of dates of such sittings and was not cited as a party or summoned to attend and give evidence at such inquiry. He did not appear, therefore, personally or by counsel, at such sittings and did not adduce any evidence. As a result the magistrate announced that as he and other petitioners had refused to appear there was nothing to inquire into, and he would so report to the Minister. The Respondent Board and counter petitioners thereupon applied for costs and the commission fixed costs and witnesses expenses of the counter petitioners at £56 13s, and those of the Mangawara River Board at £9B 15s, at the same time ordering petitioners to pay costs. The caso for the appellant is that it was contrary to law: (1) For the commission to enter into the inquiry, owing to the fact that one of its members, namely, Ernest Feltus Adams, had previous'to his appointment formed and expressed his opinion on the subject into which the commission <ras authorised to inquire. (2) For the commission to make any order for appellant to pay any of the costs of enquiry, inasmuch as appellant was neither cited as a party nor _ summoned to apppar before toe commission and give evidence. (3) For the commission to order that its order for costs be filed in the Magistrate's Court at Hamilton, inasmuch as the costs amounted to a greater sum than £IOO. The Grounds of the Judgment, On the question of notice to attend the Judge held that the solicitors, Messrs. Swarbrick and Swarbrick, were informed of the date of hearing, and this was suihcient notice. As regards costs there was power to file an order for two separate amounts under £IOO each, although both sets of costs were included in one instrument. On the mam point, Mr. Justice Herdman said; "From what I have so far stated it will be seen that petitioners for abolition of the river district were solely responsible for causing the Crown to undertake the business of setting up a special tribunal to investigate their grievances, with all the attendant expense and j labour. Not only must they accept liability for that, but they put the coun-ter-petitioners and the River Board to expense and trouble. After doing all this, and because the constitution of the tribunal did not meet their approval, they refused to proceed with their case. They may have some justification for objecting to Mr. Adams, but as to this I can form no opinion. The members of the commission evidently thought the objection was groundless, and in the absence of specific information upon the subject, I think I ought to assume the tribunal properly constituted. The commission duly sat tor the purpose of conducting an inquiry which it was directed to undertake. Members assembled and sat, and | the proceedings were formally opened, | somo of the parties to the inquiry being j present and ready to proceed with their i evidence." Mr. Skerrett, K.C.. and Mr. Swarbrick appeared for the appellants, and Mr. Gray, K.C., and Mr. Johnston for the respondents. After hearing legal argument the appeal was allowed without calling on the appellant. Costs were allowed in the Supreme Court proceedings and in the Court of Appeal on the lowest scale.