SUPREME COURT.

Otago Daily Times, Issue 9511, 20 August 1892, Page 5 (Supplement)

SUPREME COURT.

IN BANCO. Wednesday, August 17.

(Before his Honor Mr Justice Williatcs) HEFFERNAN V. BEGO AND OTHERS. " Motion for writ of certiorari moving into the Supreme Court the application of David Heffernaii to the Roslyn Licensing Committee for a renewal of tho license to the Argyle Hotel, in order that the committee's decision might be quashed. The applicant was licensee of the hotel referred to, and the respondents, Alexander 0. Begg, James Lillico, Robert Dalziel, James Stewart, and John Wilson, were the members of committee. Mr D. D. Macdonald and Mr John Macgregor appeared to' move, and Mr A. S. Adams for the respondents. ; The grounds of the motion, together with the statement of claim in the case and the plaintiff's affidavit, have been already published. The defendants in their statement of defence denied all the material allegations in the claim itself. They further said that they did not, in refusing the application of the plaintiff, act upon a predetermination or pledge to refuse the same, orb} reason of bias or prejudice; but, on tho contrary, that they heard and considered the application in good faith and without any predetermination, and received "petitions and heard and considered evidence and arguments of counsel on both sides, and afterwards came to a determination thereon to refuse the application on the ground that, their opinion then was, that the licensing of the Argyle Hotel was not required in the neighbourhood. The following are the material parts of Mr A. C. Begg's affidavit in support of the defence:— That'plaintiffs application for a renewal of a license for the Argyle Hotel was " considered and voted on by me honestly, fairly, and in accordance withlaw." That on thehearingapetitionsignedby 310 adult residents and ratepayers was presented objecting to the granting of tho certificate, and a petition signed by 218 residents and ratepayers, and another petition signed by 44 persons, were presented in favour of granting, but tho lastmentioned petition was signed only by residents of Whare Flat, who reside at distances of from four to 10 miles from the hotel. That the objectors, by their counsel, began the proceedings, anil their petition was duly served and received ; and witnesses, who were known to the committee to possess special mean 3of knowledge of the requirements of the neighbourhood, were examined on oath on their behalf. The applicant by his counsel, was then heard, and the petitions in favour of granting the certificate were duly served and received; and the applicant and his witnesses also examined on oath. The only witnesses examined on behalf of the applicant were persons who reside at "Whare Flat and Middlemarch (about 50 miles distant), and were neither residents in the neighbourhood of the hotel nor ratepayers of the district. That after the applicant's case was closed the committee retired to consider the application, and fairly and honestly considered the petitions, evidence, and arguments before them, and the circumstances and requirements of tho neighbourhood, which were well known to them, and decided, after deliberation and discussion, that the licensng of this house was not required in the neighbourhood, and they refused the same accordingly by a unanimous vote. The evidence on behalf of plaintiff satisfied the committee that the house was not used to any appreciable extent by the residents in the neighbourhood, and was used mainly as a place of call for the residents of Whare Flat, and that those persons could obtain liquor at other convenient places. Tho whole of the evidence was directed to show that the house was used by persons not resident in the neighbourhood of the district. The question of the granting or refusal of the application was not in any way determined by the committee until after the close of the evidence and arguments thereon, and was "an open question in my own mind up to that time." That the Dnnedin Prohibition League were not in existence when the Roslyn Licensing Committee were elected. That " I have taken no active part in the meetings or work of the league, having been present at their meetings on one or two occasions during 1891 only, and I was reelected vice-president at the annual meeting of the league in my absence." That the only work carried on by the league in Dunedin, as far as deponent is aware, is the free distribution of the Prohibitionist, with the object of educatingpublic opinion on the subject of the liquor traffic. That "I have never assented to any proposition for general and immediate prohibition of the liquor traffic. I understand the objects of tho Dunedin Prohibition League to be the education of public opinion with tho view of influencing and enforcing legislation in the direction of the ultimate extinction of tho said traffic." That the principles of prohibition are not correctly stated in paragraph 10 of plaintiffs affidavit; but if they are, then "I do not assent thereto, and, in particular, I say that in considering whether or not a license is required in any neighbourhood I think that all the circumstances of that neighbourhood must be taken into account, not excluding the circumstance that there may be persons resident therein who may reason-, ably desire to purchase liquor." That the Roslyn Licensing Committee understood, from recent decisions of the Supreme and Appeal Courts, that they were not at liberty to act by reason of any pledge, and they did not so act in refusing plaintiff's application. No such general statement as that contained in paragraph 14 of plaintiffs affidavit was made at the annual meeting of the committee in June IS9I, but at that meeting each of the applicants as a licensee was separately informed at the time of granting his application that " with regard to the application, the committee considered that the house was not required in the district, but in order not to appear unfair, and to give the licensee an opportunity of making other arrangements, the license would be granted for 12 months."

Mr James Stewart, for himself, made affidavit endorsing paragraphs 3, 4, 5, ti, 13, and 14 of Mr Begg's affidavit, and declaring that lie is not, and never was, a member of the Dunedin Prohibition League, or of any similar body. That he did not vote on plaintiff's application by reasonof any pledge, or iv pursuance of any predetermination. That until the case for the applicant was closed, and the committee had retired to consider it, he had not made up his mind to grant or refuse the application. That he honestly and fairly considered the evidence for plaintiff, and the argument thereon and the circumstances of the case, before csming to any conclusion with respect thereto. That' he neither gave, nor concurred in the giving of, any pledge at the election of the committee in June 1891, and the placards mentioned in paragraph 12 of the plaintiff's affidavit were issued without deponent s consent or concurrence. That deponent did not give any public expression of his views on the question of Slanting or refusing licenses in the district. Mr James Lillico made affidavit of the truth of the statement of defence, so far as it relates to himself. His Honor said that he had looked through the papers, or some of them, and there seemed to be some points of resemblance between this matter and the Sydenham case. Mr Adams said it would be found that the circumstances were different. His Honor remarked that that might be so, but he was thinking of the principle. That was the same, was it not ? Mr Adams was not satisfied that it was so.

His Honor said that it might be that tho principle was nearly the same, and it had occurred to him that if there turned out to be any real similarity between the cases, and the Sydenham case was going to the Court of Appeal—whether it was going or not he did not know Mr Adams said that the decision of tha Sydenham case would not settle this one. His Honor said that possibly that was so, but Still if the Sydenham case did go to appeal, and it could not be arranged that this present matter should stand over pending the decision in the Sydenham case—a course which appeared to be advisable—it would probably be desirable that he should withhold his decision until after the Court of Appeal had determined the Sydenlmm ca3O : not because one case governed others, but because the principles should be settled by the Court of Appeal. Mr Adams would much prefer to go on, and wait for the decision if his Honor reserved it. His Honor remarked that that was no doubt so. .Mr Adams would probably not mind if the matter stood over for the next 20 years, but this question, of delay was more for the other side to speakMr Macdonald said that if his Honor was going to reserve judgment till after the decision of the Court of Appeal it seemed to be futile to go on with the argument. What would be the use of arguing this matter when the decision of the Court of Appeal might throw new light on the whole case? There might need to be a supplementary argument, and perhaps new points would bo raised. Mr Adams thought that the cases were so dissimilar that after hearing the present application his Honor might give judgment upon it. ■ His Honor said that possibly it might be so. "Was it the fact that the Sydenham case was going to the Court of Appeal ? Mr Adams had no information further than the public had in regard to the matter. Mr Macdonald might mention that a letter had appeared from the chairman His Honor: Oh, well Mr Macdonald : And Sir Robert Stout told me yesterday that ho understood it was going to Hi's Honor supposed that it might be suggested that there were other districts in which a somewhat similar stale of things had happened as m this district. , Mr Adams said that he supposed that was so. Ho did not know of any, but it might be so. He was desirous' of getting the matter before the court if possible. His Honor intimated that he was ready to hear the argument, but at the same time unless it appeared to him that the circumstances of the case were really distinct from the Sydenham case he should probably think it right to withhold his judgment until the Sydenham cases wore disposed of by the Court of Appeal. Mr Macdonald said it seemed rather strange that they should argue the case and then have to wait for a decision which might throw light on the whole thing. Mr Adams said that his friend could have stayed the proceedings if he desired the judgment of the Court of Appeal. It was his (Mr Macdonald's) side who brought the matter on. Mi- Macdonald : We had to begin some time. We are quite reasonable, and are willing to postpone. We are in the hands of the court. His Honor remarked that all knew that the present case and the Sydenham case were not entire strangers—that was a matter of common knowledge, the parties being the publicans on one side and the prohibitionists on the other—and one would have thought that they could have arranged to have the whole matter settled by the court, if the court was to settle it. He would hear the case if thepartips were ready; but, as he had said, unless it appeared that it could be disposed of independently of considerations which affected the Sydenham case, he should not be in a hurry to give judgment upon it. Mr Adams : My instructions are to get the argument over, if possible at all. His Honor: It may bear further argument at a later stage. I understand you say that there are other circumstances which apply, Mr Adams. It that i 3 so I can hear it at once. Mr Adams : That is so, your Honor. His Honor : Very well; I will hear it. Mr Macdonald then proceeded to open the argument. After reading the notice of motion for a writ of certiorari, learned counsel was abont to «o over tho statement of claim, whereupon Mr Adams submitted that the statement of claim had nothing to do with the motion. His Honor asked Mi- Macdonald what rule he was proceeding on. Mr Macdonald replied that he relied on rule

---455 Mr Adams said that that was disposed of in re Roche. After agument, His Honor upheld Mr Adams' contention, and ruled that the. statement of claim was a superMr ' Macdonald then -proceeded to refer to the several affidavits, when Mr Adams objected. The affidavits wore filed jin the action, and could not be used in the

motion, which was now the only thing Jjcfore.ttis: xourt.-;.--;;-,;:,f'- i :V;-":..iJ:.;.,.. J:iV;'.^ ■::-.;;i'~.&~~&'s'-J':.;:/ij< His Honor ;.If these objections;are taken I shall give leave to aniend. ' '•■.■.' ■::".*■'■ :r '■'•£";;-'-:. '",""■.' Mr Adams submitted,that the affidavits jlidhdt: refer to the notice of motion, arid,were therefore' .wrongly intituled. •■•:.■■•' '.■ ~-•:':/■ ••"■Vw; '-.': .-■ ''■',:■■■' :_ His Honor: I think that unticr tlie/ciMim-, stances the court has jurisdiction to'authorjse the aftidnvits to lie' read, even if ■-they<are-i.uliIpuglji: Intituled. ■.. ; .";■..' '■ ■ ■;■)■■■■■.::-..:/f-

Mr M'aedontild, in reiuirag.throiishthe affidavits-, pointed out that when the committee were oluctui-. the poll showed that the highest on the poll had 258 votes and the lowest 2HI, so that there was a large minority opposed to the prohibition candidates, and the views of that minority, had been entirelydisregarded. It was simply a faction fight. At the time of the election there was a pledge, which was freely distributed among the people, by-which; the five prohibition candidates bound : themselve that if elected they would give 12 months' notice to takeaway all licenses. The next step was to carry out their pledge. At the annual meeting they gave 12 months' notice, and at the following annual meeting they did exactly what they had promised iv their pledge. There could be no doubt whatever of the bias. They carried it out to Ihp end. There was a population of 3SOO in the district, and yet they took away every license in the district. They might be said to be admiuistering the act if they had loft one hotel out of the throe, considering that that one was enough ; but as it was they could not be said to have administered the act in any way, because they ignored the wiUies of a large minority of the ratepayers. Could it be said for a moment that that was a fair administration of the act? The cases were unanimous that a committee were judicial officers to administer the act according to the spirit of the licensing law. His Honor said that tbere was a case which said that although the committee had power to take objections, yet the existence of that power did not render their functions leas judicial. There was an English case where the committee took objection on their own behalf, and it was decided that if they had that power—and it was assumed that they might have it—still that they had to hear and determine applications in the ordinary way. Of course the point in our act which seemed to render a committee not wholly judicial was the fact that they had the power themselves to takeobjection, and this put them in the position—the inconsistent position—of being accuser and judge. Mr Macdonald remarked that that point was argued in the Sydenham case before Mr Justice Denniston. Learned counsel referred to the case of Sharp v. Wakefield, in the House of Lords, and said it had been held that the act was a regula-' ting act, and not one to destroy tho traffic, and that if committees refused all licenses they evaded the act and introduced local prohibition, although that was entirely coutrary to the spirit of the act.

His Honor: Assuming your contention,to be correct, that the committee were biased by. reason of the pledges they gave at the time of election and by reason of their conduct at their first meeting, when they said that they wore not going to renew licenses at the next one—assuming tnat, your clients have pone before what they knew to be a biased tribunal. Is not that.a' waiver of pre-existing bias. : Mr Macdonald: That was argued in the Sydenham case.

Mr Adams: I propose to raise that question. His Honor: We know that if a judge has a pecuniary interest in a matt-r, and the parties know it, and consent to try the case before him, that is a waiver, and gives him jurisdiction where he would not have it. ..

Mr Macdonald : Supposing that were raised, I submit that the applicant has really no option. It is the only judicial body to which ho can go. Taking that view, it cannot be said to be in any sense a waiver. Further, the applicant was not to know that at the last moment they would not repent and act judicially, and giv« him his license. ...

His Honor said that he had merely mentioned the matter sis a point which might have to be met. ■.:.:■■■■:

Learned counsel spoke at some length, and in support of his arguments he cited Sharp v. Wakefield, House of Lords; Taylor v. Isitt, bef )re Mr Justice Denniston in ChrUtchurch; the same case in the Court of Appeal; the second case in Sydenham, before Mr Justice Denniston for ccrtiorari to quash the proceedings; the Queen v. Gaisford (1892,1, Q. 8., 331), as to the court having power to interfere where bias exists; the Queen v. the London County Coimc'l, to show thatJt is unnecessary to show that justices are influenced by bias; ex parte. Akersdyk (1892, ], QB., 100); and Leesou v. the General Council of Education on the question of bias. ~....■ Mr John Macgrecor followed on the same side. Ho submitted as his first proposition that licen: sing committees are for the regulation, and not for the suppression, of the liquor traffic. Secondly, he submitted that committees are elected for the purpose of administering the Licensing Act and regulating the traffic in a judicial spirit. His third proposition was that the Roslyn committee' were elected for the express purpose of suppressing the liquor traffic in Roalyn within a certain time and in a certain way. Fourthly, he contended that a committee so elected and so pledged was prima facie biased, and so disqualified for-dis-charging the judicial functions of a licensing committee. Fifthly, as a proposition of fact, ho Baid that the comniitteo did suppress the liquor traffic in the district within a certain time and iv the precise way iti which they pledged themselves to suppress it. His next proposition was that this committee have thus shown by -their acts that in the discharge_ of their functions they acted from bias, and not in a judicial spirit, and that any declarations by the committee as to their reasons and motives for suppressing the liquor traffic cannot countervail the effect of their acts. Then it followed — and this was the seventh proposition, a proposition of law —that if it is shown that the committee were biased it was not necessary to go the length of showing that their decision was influenced by the bias, and that it was sufficient to show that' some of them — not the whole— were biased.

Mr Adams said that the first point lie wished to raise was that it appeared from the affidavit that the plaintiff knew of all the facts, upon which he now relied as evidence of bias, and upon which he asked the court to interfere and grant the. writ eettiorari before the committee met; that,he, with this knowledge, voluntarily submitted his application to the committee and invited them.to adjudicate upon it, and having done so he could not now say that they were disqualified by reason of the alleged bias ; that the affidavits of the plaintiff showed that all the facts were within'his knowledge before the annual meeting of the committee; that if he had believed that the committee were prejudiced, as alleged, heought to have applied to the Governor to exercise his powers under " The Triennial Licensing Committee Act ISS9," and to remove the committee, and appoint another committee to act in their place: that he. voluntarily and deliberately chose to make his implication to the committee on the chances that the committee would grant the application, and having taken those chances he must abide by the result. TJiecourt,hesubmitted,wouldnotinakean order which would not bo effective, and the parties applying must satisfy the court that the order asked for would place them in a better position than they were at present. If the writ of cer-: d'orari was issued in each case the parties would be in no better position than they were before. The decision of the committee would be quashed ; the application would remain; the committee would still be entitled to act; and the. court found, sis they were advised to do, that the committee were invincibly prejudiced and mentally unable to exercise a judicial discretion, and if the committee then sat again to consider the application they would simply again refuse, and an application would again have to be made to the court. The court would not assume that this Governor would exercise his extraordinary powers and remove a committee in any case.such as the present. It would bo an unprecedented tiling for the represent:itive_ of her Majesty in a British colony to interfere with the rights of the electors and place a nominated bench in a position from which the elected bench had been removed. Then, again, learned counsel went on to contend the present case was distinguishable from the Sydenham case. Sin that care the committee were found by Mr Justice Denniston to be so identified with the furtherance of actual prohibition as to be uuable to bring a judicial mind to the consideration of its duties, and that the committee had acted perversely and non-judicially. In the present case three of the members of the committee were proved not to have had any connection with pror hibitiou or any temperance movement, and not to have been in any way identified with the furtherance of prohibition. "If bias was held to be a ground of disqualification it must be held to be a bar to the election of the committee as well as to the exercise of their functions. But it had been established by a long series of decisions in this colony that bias alone was not sufficient ground to disturb the election of a committee. Committees might exercise their functions although influenced by bias. AVherc could the court draw the line as to the amount of bias necessary to disqualify? In the S ydenham case Mr Justice Denniston faid: "I do not see why a committee may not be elected pledged to go as far as the law permits them in the way of dimi; nishlng the number of houses in any district., And again: "I do not mean to suggest that a committee are in no case in law entitled to close all the houses in the district. From this it was clear that the committees might in some circumstances close all the houses in their district, and having that power might be elected, although pledged to exercise that power. The committee were bound to sit and consider applications. If they resigned, the electors in their district would be disfranchised, and if they sat to hear and determine, the court could not interfere. The decisions given in England under the Licensing Act there were no authority on the New Zealand act. The circumstances were entirely different. Our act was unique in its character and in its provisions. By section 75 the act provided that a committee should exercise their discretion in granting or refusing a certificate for any description of license, and should not be bound to grant the same unless in thenopinion there was a necessity for,. it. in the neighbourhood. The words "unless in, their opinion there is necessity for it" did not occur in the English act. It must have been assumed that men of all degrees of intelligence and education would be placed upon licensing committees throughout the colony. The Legislature had provided in the act that the opinion of the committee must govern. must have been meant was, opinion as ordinarily understood, and if any member ot a licensing committee had an opinion, to give fair opportunities to persons interested to bring evidence and argument to bear udou him on the question iti order, if possible, to change his opinion; and whether his opinion was the same as at the commencement of the case or whetheritwas altered by argument.itwas bound to »overn. All men were more or less amenable to reason It could not be said that a man formedan opinion that it was impossible to alter. Ifa.committee had fairly and impirtially considered the. arguments brought before them, and gave honestly their opinion that the license was not rcnuired, the decision was final. Even if the decision was contrary to the evidence the court could not interfere. Iv order to succeed the plaintiff must show that committees were bound mall cases to leave at least one liccense in each district. It was said that the act was an act to regulate, and not to suppress, the liquor traffic. That was true colonially but not locally. The act contemplated that'under its provisions there would be prohibition districtsinportions of the colony. Provisions : were formed in the act to the effect that in. any district where at the time of the passing of the act there was no licensed house in existence, no license could be granted till after a poll had been taken, and the determination, of the ratepayers ascertained, and if that determination was against the granting of the license the district remained a prohibition district. In a number of licensing '■ districts in the colony there was only one licensed house, and iv others two or more. The Legislature made general provision vesting discretion to grant or refuse licenses in all licensing committees. The committee in a district where only one licensed house existed had the discretion to refuse, and if that discretion wore exercised the necessary result would lie to create a prohibition district, and if the committee had the power where there was only one.license, the same powgr must exist

"whbfe^iherofw'crqstwo Cdr^i;iore-il!censes,;S;tlief ■chamcteri:;of;'the'::di?evelipn?;,ana;;;the,ippw,sr»b£| (the "committee- being .the>same Jhieyeiy;: case.";; Unless: the.plaintiff; could i'shoVr-that* licensing; committees^ Were., bound' to" grant fat least;1 one i 'license? in'jthoir district,'he';must^fail. VlriSthisi case;the; committee'did not proceed:.of its own/ motion. 'A-memorial was lddgecL signed by 310 'objectors,'and theobjectors: were .represented by ;•;■ Counsel.;-The applicant had notice of the objec-S tion before the meeting, arid he attended with/ his counsel and .witnesses. ..Kvidence was given,-;, .argument ensued, and the committee retired to a; consider the case;, TJie'y. afterwards refused the;; application on, the ground that in their opinion; the license was uot required.; Even if the, court >„: ,were satisfied that the -committee had given the; pledge alleged by tbe plaint inland were in-.;; fluenced by bias as '.alleged by him, if the court .were also satisfied tliat, the evidence beforethe:; committee in;each case did not-justify the're-.V fusal of the license, the court would not interfere ■■/; wilh the decision. The provisions of the act, . giving the committee power to take notice of , : objections on their own motion, constituting the ,' opinion of the committee the standard 'of ■judgement in each case, and pi oyidiug for the election of cuinmittces by the popular vote, distinguished the. v position of licensing committees in New Zealand; : fromthejustices in England. Biasmight be held to ' boaground of disqualification infiugland where tho ■:■■ justices granted the licenses, and the withdrawal:. of one or more of their number would still leave a'■': body.witli povyer to deal with the application. But if a licensing committee or any of its members .wore held to be disqualified by reason of' bias, there.was no other tribunal to which appli- .; cation could be made. Tho court cottld not grant a license nor order one to be granted, and if the . committee were prevented from acting the result would be no licenses would be granted. During the course of hia address, which was of a lengthy v. nature, Mr Adanis cited aad commented upon , several cases. : ; : . .. Mr Macdonald having replied, "' His Honor said: I will take time to consider. There is a strong resemblance between this case ■' and the Sydenham case. One might not exactly govern the other. The principle which governs is the same. .If the Sydeuham committee is going -. to appeal I will probably await the, result. ; ,■.'-; The court then rose. ;