AUTHORITY NOT VALID

Poverty Bay Herald, Volume LXIV, Issue 19377, 15 July 1937, Page 11

AUTHORITY NOT VALID

HOUSE SURVEY OFFICERS OBSTRUCTION A LLEGATIONS COURT CHARGE FAILS (Per Press Association.) AUCKLAND, last night. Because the authorities with which the inspectors appointed under the Housing Survey Act •were armed, did not comply with the Act and because proper notice had not been served, Mr. C. R. Orr Walker, S.M., in the Magistrate's Court to-day dismissed a charge of obstruction brought against a Ponsonby house-owner. Costs were allowed against the City Council, which brought the prosecution. The defendant, J. W. Payne, of Oliphant street, Ponsonby, for whom Mr. J. J. Sullivan appeared, pleaded not guilty. He was charged tiiat on May 17, being the owner and occupier of a dwelling in Oliphant street, he obstructed Arthur David Bines and Douglas Vincent Campbell Kensell, persons duly authorised under the Housing Survey Act, 1935, in the execution of their powers of entry and examination under section 5 (1) of the Act. Mr. R. H. Maclcay, who conducted the prosecution, said that Ponsonby was'' one of the areas defined in the Housing Survey Act. On April 21, Herbert Vincent Hutton, an inspector, called personally and saw the defendant, explaining his business to Payne. Hutton wrote out one of the usual notices of intention to inspect the house, whereupon Payne became abusive and refused to accept, it. Payne ordered Hutton off the premises and threatened him to such an extent that Hutton left quickly. Abused and Ordered Off

On April 28, two other inspectors called, but Payne was not at home. On May 17 two authorised inspectors, Bines and Kensell visited Payne and explained their business. Again Payne was abusive and ordered them off the premises. When Hutton produced his authority in writing to enter houses, the magistrate remarked that it was signed by the city engineer and not by the local authority concerned as prescribed by the Act.

Mr. Mackay submitted that it was abundantly clear that the City Council could delegate power to its executive officers.

Mr. Sullivan: I have got a more meritorious defence than that. “The matter is important in view of the wide powers of this Act,” said Mr. Orr Walker. Hutton said that when Payne refused to take the notice to be filled in by householders, the witness took it away with him. “Payne told me he did not want Citv Council men coming round,” said Hutton. “He used a foul word and also said it was just a job put up by the council to allow men to earn £6 a week.” Mr. Sullivan: Payne had his hat on and was going out when he came to the door? —Yes. You never gave him the notice and vou did not call back next day?—No. I never returned next day.

Why did you throw the notice at his feet after telling him what it was?—We are instructed to deliver the notice to people. Far-Reaching Act Arthur David Bines described his visit to Payne’s house on May 28. Payne told him tiiat it was his properly and that he would not allow anyone to enter. This witness produced his authority, which was also signed by the cityengineer. “This Act, passed only in 1935, is one of the most far-reaching things in the city,” said Mr. Sullivan. “It is also of great importance to all householders. It is very proper that the notices should comply strictly with what is stated in the Act; otherwise it would be quite easy for unauthorised persons to enter homes and commit crimes. There have been many burglaries and crimes of violence in Auckland of late. At the lime of this alleged offence. Payne was overwrought, having had trouble with his tenant; in fact, an assault charge is pending in this court. “I submit,” counsel continued, “that die inspectors should have received competent advice as to how the notices should be served. The notice was not properly and legally drawn. Also it said that Hutton would be back on the following day, bqt lie did not return.” Power of Interference

The magistrate said it was most obvious that the Housing Survey Act gave power to interfere with a man s home, and for tiiat reason it had to be construed strictly. The Act provided that 24 hours’ notice of intention to enter a house had to be given and it had to be given by persons duly authorised by a local body or the Minister. Proof of authority and proper notice were vital. “The authority, in my opinion, does not comply with the Act,” he added. “It is an authority signed by the City Engineer and till the proper delegation of authority is proved, the authorities I have been shown here to-day are no better, or no worse, than one given by a clerk or a typist to anyone in the council’s employ. The wording of the notice is not a happy one either. “Was the notice given sufficient, he asked. “Hutton could have returned next day and entered the dwelling. If Payne had obstructed him he would have committed an offence, but a man said he would call, and did not call, so there was no obstruction.

“This charge is not for obstructing Hutton, but of obstructing, two other inspectors, so the charge must fail on that ground. They had not given any notice to enter on May 17, and before they could have entered they must have been able to prove notice of intention to enter. It seems to me there are several reasons why the case must fall to the ground. Everything must be done strictly and in accordance with the Act.” When the magistrate dismissed the charge, Mr. Sullivan asked for costs. “This is a very serious matter and the council should be more careful, he said. “The City Council could have saved the costs but for their meanness in not conferring with the excellent solicitors in their own office and the very eminent city solicitor, Mr. Stanton and others in his office.’’ Mr. Orr Walker thought the application for costs was a proper one, and awarded costs £1 Is against the council.