TOWN HOARDINGS

New Zealand Herald, Volume LXXIV, Issue 22670, 6 March 1937, Page 17

TOWN HOARDINGS

koto'eua coukt case decision AGAINST COUNCIL / ___ TWO VERSIONS OF CONTRACT DEFENCE EVIDENCE PREFERRED [BY TELEGRAPH —OWN CORRESPONDENT] ROTORUA, Friday A decision -which is of interest to local bodfes throughout the Dominion was delivered in the Rotorua Magistrate's Court this morning, when Mr. S, L. Paterson, S.M., dismissed an information brought bv the Rotorua J3orough Council against Chandler and Company. Limited, of Auckland, for the alleged offence of exhibiting posters on hoardings in the town without the hoardings being licensed. The case was heard at a sitting of the Court in Rotorua two weeks previously, when the council was represented by Mr. J. I). Davys and the defendant company by Mr. E. Roe. The magistrate said that lie preferred to accept the evidence of Mr. "Webb in preference to that of the Mayor of Rotorua, Mr. T. Jackson, and the deputy-mayor, Mr. E. T. Johnson, as, to what transpired at the original interview between Mr. Webb and these two representatives of the council. No Definite Undertaking There was no definite evidence, lie said, to prove that Mr. Webb bad definitely undertaken to exhibit only posters ,of a scenic nature, and the magistrate said that he could well see that Mr. We lib, as an experienced business man and advertising agent, would not, fop the purpose of ensuring the issue of a licence for the hoardings, write an untrue confirmation of the original interview with the Mayor and deputy-mayor, when asked to confirm the arrangement in writing, in order that the matter of a licence could be placed before the council. Had the terms of the company's confirmation not been according to the original arrangement, one would have expected that when the letter came before the committee of the council, of which the Mayor was a member, Mr. Jackson would have informed the committee that the terms wore not. according to the arrangement, but there'was no evidence of this having been done, and the council adopted the committee's recommendation that the licence be granted on the usual terms. Merits of the Case "What took place between the parties is, however, irrelevant and inadmissable, as the company was charged merely with exhibiting posters on an unlicensed hoarding," stated the magistrate. "A licence is a contract subject to the law of contracts, and the law of evidence, and the only evidence of a contract that 1 can consider is the company's letter and the council's reply, which was the only licence granted. At the same time, I do not think that the company's case rests entirely upon a barren principle of law. It has, I think, the merits or the case in as much as 1 prefer Mr. Webb's version of the account of the interview to that of Messrs. Jackson and Johnson. "Mr. Jackson, in his evidence, stated what lie thought to be the effect of the interview," said the magistrate, "while Mr. Webb was more explicit. Unless witnesses repeat to the Court what actually transpired and leave the j interpretation to the Court, it is im- j possible for the Court to find whether ! the alleged effect of the conversation j would 4 be conveyed to the ordinary man's mind by the words used. So far as conduct is concerned, I am satisfied that Mr. Webb's conduct compared more than favourably with that of the council." Unreasonable By-law The', magistrate added that, having regard to all the circumstances, he shoiild consider dismissing the information as trifling under section 92 of the Justices of the Peace_ Act did lie not' consider that the defendant company had a good defence at law. Counsel for the defence had argued that the by-law was invalid in several points. A section of the by-law provided that licences for hoardings should expire on March 31 and September 30 following the date of issue. This was clearly an uncertain provision of - the by-law, as it might be taken that a licence issued on, say, March 1, would expire on March 31 folowing. The unreasonablness of the by-law was further emphasised in another clause which stated that the,licence fees should be paid yearly. It could be asked: Was it reasonable that a licensee should be required to pay a year's fee while the licence was only for six rnoH*k& at the most? On that point, there seemed to be little room for argument that the by-law was unreasonable and capricious. No Offence Committed The magistrate said, however, that he did not think that the whole bylaw could be taken to be invalid, because,; the portions referred to could be severed from the rest without doing any violence to the language of the bylaw. Accordingly he would hold that the by-law was valid subject to the .severance of the portion referred to. The effect of this was that the company obtained a licence for no fixed term. The council had not purported to r&voke that licence, but treated it as expired, so that the licence was in full force and in effect the defendant company had committed no offence. The information would therefore be dismissed, with costs in favour of the defendants.