LOCAL BODY PROCEDURE

New Zealand Herald, Volume LXIII, Issue 19510, 14 December 1926, Page 15

LOCAL BODY PROCEDURE

VOTING BY COUNCILLORS. FINE POINT AT BIRKENHEAD. COURT ASKED FOR A WRIT. A nice point in local body procedure came before Mr. Justice Adams yesterday when George Jarrett, shorthand writer, of Birkenhead (Mr. Beckerleg, instructed by Mr. A. Hanna), applied for a writ of certiorari quashing a resolution passed by the Birkenhead Borough Council (Mr. Cocker) refusing an application lie had mads concerning- access to his section at Birkenhead. In previous proceedings, it was alleged by the plaintiff that the council had determined his application without giving him an opportunity of appearing befora it in ( terms of section 10 of the Publia Works Act, 1911. These proceedings were withdrawn on condition that the council reopened the matter and allowed the plaintiff to exercise his rigivls under the section mentioned. On August 1 of this year Jarrett appeared before a meeting of the council and stated his case. At that meeting, however, there were only six members present, but when the application was considered on August 15 ten members wefe present and voted on the question. It was contended that the body which heard the plaintiff was not the body which adjudicated upon his application, In other words, it was pointed out that four councillors had voted on the application without having heard the plaintiff when he appeared before the council.. Mr. Beckerleg admitted to Hi;; Honor that if the council as a whole had adopted the recommendation of the six councillors his client would have no grounds for complaint. There was, however, nothing to show that the four councillors had acquainted themselves with the details of the application. Further/ had only the six councillors voted on the question, Jarrett could not complain. Counsel added that there was no allegation of mala fides against the council. The jurisdiction of the Court in the matter was limited to directing the council to reopen the question. The misrits of the application could not be considered by the Court. Only the council could deal with them. Mr. Cocker pointed out that the, application had been befofo the council on several occasions since 1919 and on every occasion it had been refused. The present application dated from May, 1923. ' He submitted that plaintiff had no right to a writ of certiorari on the grounds brought before the Court. Full minutes had been taken of the meeting of August 1 and these had been circulated to all members of the council before tho meeting of August 15. The minutes contained a resume of the speech toads by Jarrett to the six Councillors. All the members, therefore, were acquainted with the details. On the legal aspects ot' the case, Mr. Cocker submitted that a council was.a corporate body separate from its members and capable, when a quorum was present, oil exercising its functions independent of its personnel. He contended that if the submissions of Mr. Beckerleg were accepted, a councillor elected at a by-election would be debarred ftom voting. on any matters which wcra in process of being dealt with by thi* council at the time of his election. The onus was also on the plaintiff to show that -

the requirements of natural; jusitice had jnot been complied with and this, counsel submitted, he had failed to establish. v ;: Decision wag reserved. : ; ,-v>a