OPOTIKI DISPUTE

New Zealand Herald, Volume LXX, Issue 21596, 14 September 1933, Page 11

OPOTIKI DISPUTE

ACTION AGAINST MAYOR MANDAMUS NOT GRANTED DESIRED ASSURANCE GIVEN An echo of the disputes that have been dividing the Opotiki Borough Council was heard in the Supreme Court yesterday, when an application was made for a writ of mandamus against the Mayor of Opotiki, G. S. Moody. The plaintiffs- were two members of the Opotiki Borough Council, A. J. Anderson and Stephen Slialfoonj who sought from Mr. Justice Herdman a writ compelling the Mayor to call a meeting of the Borough Council and put a certain motion before it. The circumstances giving rise to the proceedings were that on July 13 the plaintiff Anderson and two other councillors delivered a requisition to the town clerk asking for a special meeting to be held on July 18. The purpose of the meeting was, "if thought fit to pass the following resolution: 'That the town clerk, C. H. Fleming, be and is hereby dismissed from his office as town clerk.' " The meeting was held, but the Mayor refused to put any motion to it, and declared the meeting closed. Mr. Barrowclough appeared for the plaintiffs, and Mr. Northcroft for the defendant, the Mayor of Opotiki.

Mr. Northcroft said this was an application for a writ of mandamus to order a certain motion to be put to the council. The Mayor had declined to put the motion in the belief that he was acting in accordance with the rules, but he now agreed to call a meeting of the council and was willing to act as chairman and put the motion. The Mayor's Assurance

"1 have authority to give that undertaking on his behalf, that ho will do it," said Mr. Northcroft. "He' has now been advisecj that the view he took of the position was wrong, and in view of the undertaking, which I conveyed to my friend the counsel for plaintiffs on Thursday last, nothing is to be gained by issuing a writ of mandamus. I suggest that the matter should be allowed to stand over pending the Mayor carrying out his undertaking." Mr. Barrowclough: The Mayor refused to put the motion over two months ago. He was later served with a notice under the Municipal Corporations Act, and he has had a month in which to get advice. The position is that the Mayor has .refused to put the motion. I do not say he has done it wilfully, but under a mistaken view of his position. In my clients' interests I have to ask for the wit to be issued.

His Honor: I don't know why they want to insist on getting a writ after an undertaking lias been given that the motion will be put. Mr. Barrowclough quoted a case in support of his contention that he was entitled to a writ of mandamus. A Writ Pressed For

His Honor: It seems to me that the proper course to take is to let the matter stand adjourned. An undertaking has been given. Mr. Northcroft has undertaken that the defendant will call the meeting and put the motion. That should end the matter except for the question of costs. Mr. Barrowclough said he had been asked to press for a mandamus. He conceded that the granting of it was in His Honor's discretion.

His Honor: I quite understand you are obliged to make the application, but I think that no good purpose would be served by issuing a writ. Mr. Barrowclough: My clients may be justified in taking this view that a writ is necessary.

His Honor: There has been a good deal of heat over this business.

Mr. Barrowclough: I do not admit that at all, Your Honor. If there is any heat there is heat on both sides. My friend has filed no defence. His Honor: I have quite made up my mind what I ought to do. Mr. Barrowclough was given permission to mention another legal case bearing on the position. His Honor: You get the pledged word of the defendant that he will do exactly what your clients want him to do. What is the use of applying for a- mandamus ? It seems to me a waste of time and money. Proceedings Adjourned Mr. Barrowclough: I do not think I can answer that question. The only question is whether we are entitled to the mandamus. I ask for an opportunity to confer with my clients. I may be in a position to agree to that and not have to take it with or without agreement. > His Honor: I do not know that it matters very much, because nothing you can do will alter my mind. ■ Mr. Barrowclough: It may be more graceful on my part. This is a situation I did not anticipate. ' His Honor: You will be entitled to costs..

Mr. Barrowclough: I do not know that my friend concedes even that. His Honor: You will have that consolation at any rate. After an adjournment had been granted Mr. Barrowclough said he was now instructed to say—if His Honor would permit him to put it in that way —that they agreed to an adjournment for a fortnight, which would enable the meeting to be called. He took it the question of costs would be reserved until then.

> His Honor adjourned the case until September 28.