WANGANUI APPEAL CASE

Otago Daily Times, Issue 18761, 15 January 1923, Page 6

WANGANUI APPEAL CASE

A .HATRICK AND CO. VERSUS THE KING. APPELLANT COMPANY SUCCEED. Oub Own Correspondent.) LONDON, November 30. An appeal from the judgment of tho Court of Appeal of New Zealand in the case of A. Hatrick and Co., Wanganui, versus the King, was recently heard befpre the Judicial Committee of (he Privy Council. Lord Atkinson, Lord Sumner, Lord Pannoor, and Lord Carson heard the appeal and delivered judgment this week in favour of the appellant company. The action out of which this appeal arose was brought by the Railway Department or the "Minister” in the name of the Sovereign, to recover the sum of £142 11s alleged to be due and owing by the appellants to the Crown. 'I he statement of claim, in its second paragraph, alleged that between April 13, 1018, and May 25, 1918, the New Zealand Government Railway Departments re-

ceived and sorted goods for the appellants at the railway premises at Wanganui. I n the third paragraph it is alleged that the sum sued for is due and owing by the appellants to the King in respect of freight and wharfage on, and the sorting and handling of these goods. In the fourth paragraph it is alleged that of this sum of £142 11s the sum of £23 19s 5d is due in respect of sorting charges levied on goods received by tho respondent into the railway sheds at Wanganui delivered from tho Wanganui wharf. CLAIM OF THE CROWN. In the fifth paragraph it is alleged that these sortage charges are made and levied by the x’laintiff in. the action, the Crown, under the authority of regulation 47, mad® under the Government Railway Act of 1909, on November 14, 1917, and published in the New Zealand Gazette of November 22, 1917. The claim of the Crown is not vested in any respect upon any right, power, or authority emanating from, or conferred by, the Harbour Board. On tho contrary, the right sought to be enforced is an independent statutory right claimed' to bo vested in the Crown by the provision of this regulation 47, founded on the provisions contained in the 10th section of the Government Railways Act, 1908. The appellants filed a of defence in which they admit that a sum of £llß 7s 7d, portion of the sum sued tor, was owing to the Crown in respect of charges other than sortage charges, and alleged a tender of this sum of £llß 7s ,7d, and brought that sum into court; but as to the sum of £23 19s sd, denied that this or any other sum was due by them to the Crown in respect of sortage charges ’as alleged; that the storage charges claimed were as respects the appellants’ said goods not mad© ruifjjrt any lawful authority; and that regulation 47, purporting to impose such charges, was as to them ultra vires. GOODS NOT CARRIED ON RAILWAYS. In the course of a lengthy judgment their Lordships said: “If no shed had been erected, and this sortage had taken place ou the wharf, it could not be reasonably con-

tended that the Railway Department had any concern with it, since tho consignee’s goods would never have been in fact carried on the railway, never delivered to or placed in tho custody or under the control of the Railway Department with the intention or for (he purpose of being so carried by it anywhere. That department would have rendered no eervice to the consignee in respect of these goods which would entitle it to receive any remuneration from him. One special peculiarity about the practice is that through traffic pays no charges such as those sued for. This goes to show that the claim made in this case is not based upon any work performed by the department in their character of carriers of goods by rail. The question for decision is whether tho Crown, acting through the Railway Department, and entirely independently of the Harbour Board, has a statutory right to exact dues and charges in respect of this eortage, in their shed, of goods never carried on the railway, or delivered to the department, or placed under its control for the purpose or with the intention of their being so carried. SortageDs in such a case not an operation in any way ancillary to tho proper business of the department as carriers of goods by rail.” A NEW CLAIM. Their Lordships quoted the evidence given by Mr A K. Harris, district manager of the railways at Wanganui, in which he admitted that the sorting was don© from 1900 to 1917 without any charge having been made on the consignees. Ho said that the claim now put forward was a new claim, a war charge, for the doing of eomething which was formerly done without charge, and was taken to be covered by the lOd per ton retained by the department out of the money collected by it as agent for the Harbour Board. He then proceeded to show that owing to the rise in the wages of labour, etc., this sum did not cover the cost of the eervice rendered to consignees by the department. “On the question of ultra vires,” enid their Lordships, “these considerations are irrele-

vant. 1 It may well be, however, that there is another way in which the financial needs of tho department might be met —namely, that the Harbour Board should increase its dues from 3s per ton to 4s per ton, and allow its agent, the department, to increase its remuneration to Is lOd and deduct that amount from the sum it collects on behalf of its principal. But however that may be, the question is not what the department can obtain when acting through and on behalf of the board, but what it can exact independently of the board.” APPEAL ALLOWED WITH COSTS.

Finally their Lordships held that “the Department by merely permitting the class of goods to be sorted in their shed in the manner described cannot acquire the same statutory right in respect of them that they may have with respect to goods which have been carried on tho railways or are to be carried on the railways. If the words ‘in connection with a railway' used in section 10 meant merely a place physically contiguous to a railway and nothing more, charges similar to those sued for could be exacted in respect of goods such as timlier sorted upon the wharf, which is contiguous to the railway, thougli the goods were never brought within the shed at all. But this, it is admitted, cannot be done. These words, therefore, must bo directed to something different from propinquity or contiguity, and in their Lorsnips’ view, having regard to all tho provisions of the statute, mean in section in connection with the

business and operations of a railway as a carrier of goods by rail. In moat cases this provision would onlv be satisfied if the goods were taken to tire shed after they had been carried on the railway, or were taken to the shod for the purpose and with the intention of being so carried. Sortage in such a case would form part of the proper business of the railway os a carrier of goods by rail; and the transit of the goods and the handling of them would come within the words of section 10. “As the goods of the appellants did not fulfil this latter condition in their Lordships' view, the words of this section did not apply to them, nor does regulation 47 passed under its provision. As regards these particular goods of the appellants, in respect of the sorting for which the sum of £23 19s 5d is sued for, that clause is therefore illegal and indefensible. They arc, therefore, of opinion that the appeal succeeds, that the decision appealed against was erroneous and should be reversed, and that in respect of the respondent's claim for £33 19s 5d judgment should bo entered for the appellants with costs, and that the respondent should pay the costs o' the appellants, and they will humbly aivise his Majesty accordingly.”