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The New Zealand LAW JOURNAL

3 MARCH 1970 No. 4

SUMMARY OF RECENT LAW

CONFLICT OF LAWS-CONTRACT Proper law of contract-Char&party-Adapted stan-

dard form-Law of flag of vessels carrying goods- Arbitration clause providing for arbitration in London- Parties expecting goods to be carried under French jlag- Goods carried under different$ags-Intention, ofparties- Whether proper law French or English, A contract negotiated in Paris between a French company and a Tunisian company, provided for the carriage of crude oil in a number of vessels between Tunisian ports over a period of months. The oral negotiation of the outline terms was conducted in French, and for the written contract a standard charterparty form drawn in English was used with additional typed clauses. One of these provided that shipments were to be in tonnage owned, controlled or chartered by the French company, and it was contemplated by the parties when the contract was negotiated that vessels owned by the French company would be primarily used, but no vessel, or vessels, was specified in the charterparty. There was no discussion at any time of the law by which the contract was to be governed, but one of the printed clauses (cl. 13) provided that the contract should be governed “by the laws of the Flag of the Vessel carrying the goods”, and cl. 18 provided that any dispute arising should be settled in London, the French and Tunisian companies each appointing an arbitrator. Of six vessels used to perform the first liftings none was owned by the French company and only one was French. A dispute arose and proceeded to arbitration. The parties sought a preliminary decision whether the proper law applicable was French or English law. Held, On the proper oonstruction of the contract cl. 13 was to be ignored since it was inapplicable and accordingly the parties, in providing for arbitrat,ion to take place in London, were to be taken to have expressed their intention that the contract be governed by English law. (Z’zortzis v. Mona& Line, A/B [1968] 1 All E.R. 949, applied.) Appeal allowed. Compagnie TUG- sienne de Navigation, S.A. v. G!ompagnie d’Armement Maritime, S.A. [I9691 3 All E.R. 589.

CRIMINAL LAW - OFFENCES AGAINST THE GOVERNMENT AND THE PUBLIC

Crimes relating to the execution of criminal process-’ Resistance or obstruction of constable-Whether wilful- Solicited advice-Repetitio+Intention-Police Offences Act 1927, s. 77. The appellant was a passenger in a car driven by M. who was stopped by a Police sergeant

and a constable. M. got out of the car and after speaking to M. the sergeant announced his intention of giving M. a breathalyser test. M. put his head through the window and asked appellant “What will I do?” and appellant said “You don’t have to take it if you don’t want to”. The sergeant then said “We will take you down to the station and you oan take it there” and M. agreed. The appellant admitted repeating his advice some three times while M. was being bustled away by the Police. The constable said “Shut up or we’ll arrest you for obstruction” and the appellant replied, “What’s wrong, can’t I give my friend any advice?” The appellant was then arrested. He was convicted in the Magistrate’s Court at Christchurch and has appealed. The Magistrate accepted the appellant’s version of his words to M. but his judgment recorded the original question as “What will they do?” whereas the notes of evidence transcribed later show that M. asked “What will I do?“, which was a request for advice. In these circumstances the Court on appeal considered de nouo the question whether the evidence proved that the appellant intended to obstruct the Police. Held, Unless the obstruction be done deliberately and with the intention of obstructing the constable, it is not “wilfully” obstructing him. On the evidence in the instant case, the appellant’s advice was given disinterestedly in response to a request from a friend of some years standing. The appellant’s explanation of his behaviour in giving and repeating the advice was reasonable and one which excludes an intention to obstruct the Polioe. Unless rejected as untrue, it must give rise to a reasonable doubt and the appellant was entitled to be acquit- ted of the charge. (HammerZy v. Scandrett [I9211 N.Z.L.R. 455; Tahu v. Police 119591 N.Z.L.R. 1078 and Betts v. Stevens [1910] 1 K.B. 1078, applied. Steele v. Kingsbeer [1957] N.Z.L.R. 652, distinguished.) Appeal allowed: conviction quashed. Dash v. Police (Supreme Court. Christchurch. 1969. 12 September; 7 October. Wilson J.).

DESTITUTE PERSONS-APPEALS Separation and other orders-Complaint brd and

dismissed-Second complaint to same effect-Additional evidence-Available at time of first heal;ing--Diemissed on plea of res judicatacDestitute Persuns Act 1910, s. 67-Practice-Res judicata-Complaintfor sepnration order heard and dismissed-Second complaint to same effect-No bar to further proceedings-Destitute Persons Act 1910, s. 67. On 19 August 1968 the Magistrate

14 TEE NEW ZEALAND LAW JOURNAL 3 March 1970

dismissed a complaint by the wife under the Destitute Persons Act 1910, evidence being given by the wife and the husband only. On 22 M8y 1969 the wife filed a further complaint to the s8me effeot but this time her evidence ~8s supported by that of her 1%year-old son. The husbend called no evidence, submitting “that the wife ~8s estopped from succeeding by the record of the previous proceedings” end “that the doatrine of rea judicata epplied”. The Magistrete stated two conclusions on the f8cts: (8) that if the matter had been 8 first complaint he would on the evidence before him, make the orders sought and, (b) that the son’s evidence WEB or could have been av8ilable at the first hertring. He dismissed the present complaint on the plea of rea judieata. The wife appertled. Held, 1. Because s. 67 of the Destitute Persons Act 1910 provides that the dismiss81 of 8 complrtint under the Act is in no c&se 8 b8r to the m&king of 8 further complaint in the s8me matter, there can be no rea judtia in suah 8 proceeding. 2. Section 67 of the Act entitles 8 complainant to have 8 subsequent compl8int heard and if there is fresh evidence or other reaeoneble ground the Court crtn justifiably come to 8 different conclusion. Evidence c8n be regclrded 8s fresh if it ~8s not tendered at the earlier hearing even though it ~8s then evailable. (Myers v. Bishop and Crazier (1914) 33 N.Z.L.R. 169 and Robinson v. William8 [I9661 1 Q.B. 89; [l964] 3 All E.R. 12, 8pplied. Tinney v. Perrel [1968] N.Z.L.R. 114 and Re Wakeman [1947] Ch. 607; [1947] 2 All E.R. 74, considered.) Appeal allowed. Case remitted for rehearing. Andrew v. Andrew (Supreme Court. Gisborne. 1,969. 8, 28 October. Wild C.J.).

INCOME TAX-ACCOMMODATION AND BENEFITS PROVIDED TO DIRECTORS AND OTHERS

Expenae.8 incurred by body wrporo&---Treatment a8 income of directora, etc.-Director renting hou8e from company-Company paying all current expsnses- Director entertaining company’s cuatomer8-Need for apportionment of total aum-i?efEection of u8e for business purposes-Absence of 8everaTace of accum- mod~Income Tax Act 1952, 8. 161 (I), (6). 8. 162 (I), Sch. 9, para. 7. On its appointment of the taxpayer 8s its managing director, a renowned pottery 6rm with 18rge foreign business insisted on his occupying a very large house ne8r its works in North Staffordshire, which it acquired and equipped at gre8t cost, in order to entertain customers from overse8s. The compeny p&id 811 the expenses and the taxpayer paid the rates end 8 sum in respect of use 8nd occupation. The taxp8yer wse essessed to income tex on the basis thst the whole of the sums paid by the company 8s current expenses constituted part of his income 8s “benefits in kind” provided by the company for 8 director within s. I61 (1) of the Income Tax Act 1962. On appeal the Gener81 Commissioners of Income T8x found that there w8s 8 genuine business use of the house and that the t8xp8yer’s person81 occupation of it ~8s restricted in th8t he was not free to discriminate 8s to his guests, 8nd they treeted one-quarter of the expenses 8s business expenses of the company not constituting the taxp8yer’s income (mod&led in the High Court). Held, Although the benefit to the comp8ny could not be severed from th8t to the taxpeyer, the house was provided for the joint use- of the company and of the taxp8yer, snd there should therefore be 8n apportionment of the expenses between the oompeny and the t8xpayer, 8s mede by the oommissioners, giving 8 proper proportion of the expenses incurred attributable to the provision.

wholly, necesserily and exolusively inourred in the taxpayer’s performance of his duties under Sch. 9, para. 7. Decision of Pennycuick J. [1969] 2 All E.R. 697 affirmed. Weatcott (Inspector of Tares) v. Bryan [1969] 3 All E.R. 664.

LAW PRACTITIONERS - DISCIPLINE AND RE- MOVAL FROM ROLL

Enforcement of discipline-Striking (IO&i&or off roll and &8pen&on~Diaci&inary Comm>ttee deal&” with ch@rgs-Whether conduct of proceeding8 contrary to n&u&I justice-Appeal-law Pmctitioners Act 1955, 8. 34. The Disciplinary Committee under 8. 34 of the Law Practitioners Act 1966, found that certain charges brought by the Law Society of the District of Auckl8nd 8g8inst the appellant had been proved and ordered that his name be struck off the roll of barristers and the roll of solicitors. The 8ppell8nt appealed on sever81 grounds, the fourth ground which is the only point reported being that the Committee refused to order the deponents who had made the six ctffidavits in support of the oharges to 8ppe8r for crossex8mination 8s the appellant h8d asked. Held, In the circumstances thet the affidavits in support of the charges were limited to the form81 production of documents, the authenticity and authorship of which the appellant did not dispute, there ~8s no matter relevent to the issue before the Disciplimuy Committee on which the deponents could h8ve been cross-examined. The Committee was justified in proceeding to he8r the m8tter without oross-examination of the deponents 8nd this ground of 8ppe81 fails. (De Verteuil v. Knaggs [I9181 A.C. 667; Byrne v. Kinematograph Renter8 Society Ltd. [1968] 1 W.L.R. 762; [I9681 2 All E.R. 679 and Univewity of Ceylon v. Femtando [1960] 1 W.L.R. 223; [1960] 1 All E.R. 631, 8pplied.) Re Wisernan (Supreme Court. Auckland. 1969. 1, 26 September; 16 October. Wild C.J. Moller J. Speight J.).

MASTER AND SERVANT-INDUSTRIAL INJURIES AND WORKMEN’S COMPENSATION

-Ac&leti arising out of or in wurse of employment- Commencemelzt of course of empkyment-No mealzs of conveyance provided by employer-Xatal accident while worker riding motor cycle to “suburban work”-Workers paid travel&g time-No implied authorimtion of u8e of motor cycle- Whether “benej%” to employer-Workers’ Compensation Act 1956, 88, 3, 5 (b)-Industrial Con- ciliation and Arbitration Act 1954, 8. 188-New Zealand Carpenters’ and Joiners’ and Joiners’ Machinists’ Award, cl. 11. B,, 8 carpenter employed by the defendant, died of injuries received when his motorcycle came into collision with 8nother vehicle. By agreement in purpor- ted compliance with cl. 11 of the New Zealand Carpen- ters’ and Joiners’ and Joiners’ Mechinists’ Aw8rd, half an hour’s travelling time at ordinary rates w&8 paid to oarpenters for “suburbtm work”. The sccident occurred shortly before the time for starting work, 7.30 8.m. B. ~8s on his wey to suburban work and entitled to be p8id some money for travelling time. No means of conveyenoe was provided by the defendant Company which neither approved nor disapproved of the methods used. There ~8s no specific agreement to extend the coverage of the Workers’ Compensation Act 1966. Held, 1. There is 8 real distinction between 8 travelling allowance peyment and 8 payment for working time. On the f8ots of this case the contract of employment does not show an express or implied agreement that the norm81 coverage of the Workers’

of the taxpayer’s accommodation under s. 161 (6) of the Aot of 1962, and also excluding so much 8s w8s

1966 ~8s to be extended to workers way to and from work. At the time

3 March 1970 THE NEW ZEALAND LAW JOURNAL 76

of the accident the deceased worker was not in the course of employment within the meaning of s. 3 of the Act. 2. Where the employer has had no control over the form of transport used, even though he was aware of it and has contributed towards travelling costs, this does not amount to implied authorisstion for a worker to use a particular form of transport. Here there was a practical agreement acceptable to both but the acceptance of this arrangement by the worker did not amount to a “benefit” to the defendant Company. (Clunies Roes v. Attorney-General [1954] N.Z.L.R. 1158 and Adams v. Keith Huy Ltd. [1969] N.Z.L.R. 186, followed. Hogg v. Hamilton Corrstruction Co. Ltd. [1962] N.Z.L.R. 133, distinguished.) Boug v. Rogers and Prestidgs Limited (Compensation Court. Christchurch. 1969. 5, 30 September. Blair J.).

BeneJit-Injury and dieablement-Amount of unn- pensation-Rules for determining earnings-Average weekly earnings-Minor-Notional earning capacity on reaching majority-Method of assesame&-Pouere of GourtWorkere’ Compensation Act 1956 (Reprint 1966) 8.16 (Workers’ Compensation Amendment Act 1964, e. 2). On 8 May 1963 the plaintiff who was then not quite 20 years of age had an accident while working as a farmhand for the defendants. He was left with 8 permanent partial disability assessed at 25 percent of total. In February 1964 the plaintiff resumed light work on a farm managed by his father and weekly compensation payments ceased. In April 1964 he went to England where he was employed as a student on a stud farm at $20 a week and keep. While there he became 21 years of age. In October 1965 he returned to New Zealand. In April 1966, although still incapable of doing certain of the heavier farm work, he was sppoin- ted manager of one of his family’s trust farms. His wages are now $36 per week. Held, Under the wider powers conferred by the new s. 16 imported into the Workers’ Compensation Act 1966 by s. 2 of the Workers’ Compensation Amendment Act 1964 the Court must now look at the particular circumstances of the injured worker, and it is the extent to which his personal earnings as a young adult have been reduced by the eccident which must decide whether he should be compensated on a loss of earnings basis. The section is concernad only with flnancittl effects arising from the disability and, through the help of his father, the plaintiff’s actual weekly earnings on reaching young adulthood have not been materially affected by his incapacity. Accordingly compensation should in his case be assessed on a quasi schedule basis. (Baker v. Masters [1937] G.L.R. 597, distinguished.) McKenzie v. Blackwood and Another (Compensation Court. Welling ton. 1969. 22 August; 11 September. Blair J.).

NEGLIGENCE-CONTRIBUTORY NEGLIGENCE AppeadApportionment of liability-Principles on

which appellate Court will interveneApportionment by trial Judge not interfered with cave for error in principle or where clearly erroneous-Pedestrian etruok by motor car when crossing road-Pedestrian and driver with clear view of each other-No evasive action taken- Whether trial Judge’s apportionment to be amended- Damage-Personal injury--Subaequeti further itijury to plaintiff, as victim in a robbery, ltecessitating amputa- tion of limb previously injured-whether damagee for injury originally caueed by tortfeasor should be reduced by reason of subsequent greater injury euperve&ng.

The appellant was knocked down by the respondent’s car. At the scene of the accident the roed, which was 33 feet wide and subject to 8 40 m.p.h. speed limit, was straight and both parties had a clear view of each other for 200 yards. Traffic was light at the time. The appellant had looked to his right before crossing the road and had seen only one car; he did not look again. He walked across the road; when he reached the centre he looked to his left and at that moment he was struck by the respondent’s car which hsd overtaken the car which the appellant had previously noticed. The trial Judge found that the respondent had been driving at excessive speed or had failed to keep a proper look- out, or both; and that the appellant had been negligent in not seeing that more than one car was approaching and in not waiting until they had passed. The Judge assessed the damages at $1,600 and apportioned 76 percent liability to the respondent and 26 percent liability to the appellant. The Court of Appeal held that it was impossible to differentiate as to liability where both parties had a clear view for 200 yards and both failed to take evasive action. On appeal, Held, The duties of pedestrians and motorists with regard to keeping a proper look-out were different and the potential danger of each to other road users was very differenti, there were no grounds for disturbing the trial Judge’s apportionment of liability, 25 percent to the appellant and 76 percent to the respondent. Decision of the Court of Appeal [1969] 2 All E.R. 549 varied. The injury giving rise to the appellant’s claim for damages from the respondent occurred in September 1964. He suffered fairly severe injury to his left leg and ankle, with the result that the ankle was stiff and his condition might get worse. As a result of his partial incapacity the appellant had some difficulty thereafter in finding suitrtble employment. In November 1967 he was engaged in sorting scrap metal. He was shot one day whilst so engaged by one of two men who demanded money from him. The shot inflicted further injuries to his left leg as a result of which it was amputated. He made a good recovery but his disability after the second injury was greater than before and he had thereafter an artificial limb. The appellant’s action against the respondent came on for trial in February 1968 and the trial Judge held that the damages payable to the appellant in respect of the first injury were in no way decreased by the fact of the second injury. The Court of Appeal, however, held that by reason of the second injury the damages should be limited to those relevant to the period between the two injuries. On appeal, HeM, Damages were not compensrttion for physical injury but for the loss which & person suffered by reason of that injury, i.e., inability to lead a full life, inability to enjoy those amenities which depended on freedom of movement and inability to earn as much as he used to earn; these were not diminished by the second injury but would continue as long as if the second injury had not occurred; accordingly, the second injury was irrelevant for the purpose of assessing the damages to which the appellant was entitled in respect of the first injury. Dictum of Hamilton L.J., in Havwood v. Wyken Colliery Co. [I9131 2 K.B. at p. 169 approved. Dictum of du Parcq L.J. in Rothwell v. Cuverawall &one Co. Ltd. [1944] 2 All E.R. at p. 366 and Hogan v. Bentinck West Hartley Collieries (Ownere), Ltd. [1949] 1 All E.R. 688, explained. Per curiam: If the later injury suffered before the date of the trial either reduces the disabilities from the injury for which the defendant is liable, or shortens the period during which they will be suffered by the plaintiff, then the defendant will have to pay less damages. Per Lord

76 THE NEW ZE~LBND LAW JOURNAL 3 Mcwch 19YO

Pearson: I doubt whether the diminution of damages recoverable from the original tortfeasor would be an admissible head of damage; it looks too remote. Decision of the Court of Appeal [1969] 2 All E.R. 549 reversed. Baker V. Willoughby [1969] 3 All E.R. 1628.

PRACTICE-APPLICATION TO MAGISTRATE UN- DER S. 68 (1) OF JUDICATURE ACT 1908

Present effect of section--No “inferior Court having extended jurisdiction”-Magistrate declining jurisdiction -Mandamus-Judicature Act 1908, s. 68. In proceedings which were not within the jurisdiction of the Magistrate’s Court, the plaintiff applied for a certificate pursuant to s. 68 (1) of the Judicature Act 1908. The Magistrate declined jurisdiction and the plaintiff applied for a writ of mandamus. Held, Since the passing of the Magistrates’ Courts Act 1928 there has been no “inferior Court having extended jurisdiction” to which s. 68 of the Judicature Act 1908 can apply. That section has been rendered inoperative although not actually repealed and the Magistrate correctly concluded that he had no jurisdiction to issue a certificate under its provisions. Kidd V. Markholm Construction Compuny Limited and Others (Supreme Court. Welling- ton. 1969. 23 August; 22 October. Roper J.).

REAL PROPERTY AND CHATTELS REAL-LAND TRANSFER ACTS AND INTERESTS THERE- UNDER

Registration of instruments-Transfer executed and delivered to purchaser-Transfer and second mortgage delivered to pZaintiff-Caveat by plaint+- Vendor alleged fraudulent misrepresentations-Sale eancelle~ by consent judgment - Priorities - Conjlkting equities - Land Transfer Act 1962, 88. 41, 62. By a contract dated 15 March 1968 L. agreed to sell certain land to C. and duly executed a transfer subject to a registered first mortgage. C. obtained a loan from the plaintiff and on settlement delivered to that Company the transfer and executed a second mortgage over the said land. By 2 April production of the certificate of title held by the first mortgagee had not been effected so the plaintiff lodged a caveat. On 9 April L. alleged that C. had induced the sale by certain fraudulent misrepresentations. On 13 November 1968 L. obtained judgment by consent in the Supreme Court rescinding the contract of sale, cancelling the transfer and directing C. to repay the moneys borrowed from the plaintiff Company, to remove the caveat and to return the transfer. The plaintiff brought the present action seeking alternative remedies to perfect its title as the registered proprietor of a second mortgage charge over the land. Heti, 1. The act of the first defendant in handing over a duly executed memorandum of transfer to the second defendant was a representation that the second defendant had acquired the interest therein described and was entitled to deal with that interest. The plaintiff dealt with the second defendant in good faith and without notice of any prior equity in the first defendant and acted to its prejudice on the faith of the said document. In those circumstances the first defendant is estopped from denying the validity of the transfer document and the equity of the plaintiff prevails over any claim by the vendor to set aside the sale. (Abigail v. Lapin [1934] A.C. 491; [1934] All E.R. Rep. 720; Barry v. Herder (1914) 19 C.L.R. 197; Tataura@ Tairuakena v. Mua Carr 119271 N.Z.L.R. 688; Maclaine v. Catty [1921] 1 A.C. 376 and Honeybone v. National Bank of New Zealand (1890) 9 N.Z.L.R. 102, applied. Waitara v. McGovern (1899) 18 N.Z.L.R.

372, referred to.) 2. The judgment of 13 November between the first and second defendants is res inter alias acta and has no effect qua the plaintiff. The memorandum of transfer is still a valid and effective document which the plaintiff is entitled to register against the land contemporaneously with but not separately from, the registration of the memorandum of second mortgage executed by the second defendant. Premier Group Limited v. Lidgard and Another (Supreme Court. Auckland. 1969. 25 September; 7 October. Henry J.).

TRANSPORT AND TRANSPORT LICENSING - OFFENCES

Dangerous driving-Motor car towing youth sitting on tyre-Whether danger to youth-Offences of strict liability--Consent a8 defence-Skylarking-No element8 of speed or disregard of other people’s rights-Period of disqualificalion-Special circum8tances-Transport Act 1962 (Repr&t 1967), 8. 57 (c). The appellant drove his motor car on Broadway Avenue, Palmerston North, towing a youth sitting on a tyre secured to the rear bumper by a rope some 20 feet long. The car was driven at some 10 to 20 miles per hour; there was no danger to anyone other than the youth and the manoeuvre had some elements of skylarking. He was convicted of driving in a manner which might have been dangerous and was fined $50 and disqualified from driving for the statutory period of one year. He appealed against his conviction and sentence. Held, 1. What must be proved under s. 67 (0) of the Transport Act 1962 is the driving and a knowledge of the oircum- stances which make the driving dangerous, but the driver need not have directed his mind to the danger. In the present case the appellant was driving a motor car on a public road, well knowing that he had a person being towed on a tyre behind, which factors make the act objectively dangerous. (Pearson v. Police [I9661 N.Z.L.R. 1095 and R. v. Evans [1963] 1 Q.B. 412; [1962] 3 All E.R. 1086, applied. Dim Chin Aik v. The Queen 11963) A.C. 160; [1963] 1 All E.R. 223 and Boye.8 v. Tramport Department [1966] N.Z.L.R. 171, distinguished.) 2. The learned Magistrate correctly came to the view that the offence of driving dangerously is one of strict liability and such a view itself prevents consent being a sufficient defenoe. (R. v. Donovan [1934] 2 K.B. 498; [1934] All E.R. Rep. 207 and Anderson v. Transport Department [1964] N.Z.L.R. 881, considered.) 3. A special circumstance or special reason for exemption from disqualification is one which is subject to the facts which constitute the offence. In the present case special reasons that exist are: there was little speed; the manoeuvre had elements of youthful skylarking; there was no evidence that anyone else apart from the youth on the tyre was affected and there was not a reckless disregard of other people’s rights. (Whittalk v. Kirby [1947] K.B. 194; [1946] 2 All E.R. 652, applied.) 4. The appeal against conviction is dismissed. The appeal against sentence is allowed in part; the period of cancellation is reduced from twelve months to three months and the fine of $50 is reduced to $25.) Edmonds v. Police (Supreme Court. Palmerston North. 1969. 19 September; 7 October. Beattie J.).

Driving motor car while proportion of alcohol in blood exceeded prescribed limit-Breath test-Prior conditions -“Good cau8e to suspect”-“Forthwith’‘-Proof of the notice-Transport Act 1962 (Reprint 1967) as. 59a, 59n (I), 59c (Transport Amendment Act 1968, 8. la)-

3 March 19?‘0 !~?EE NEW ZEALAND LAW JOURNAL 77

Tmnqort (Breath Tests) Notice I969 (S.R. 1969/70)- Evidence Act 1908, 8. 32 (b)-Evidence Amendment Act 1945,s. 12. On 31 May 1969, a traffic officer attending a collision between two motor cars at an intersection in Hastings was told by the appellant that he was the driver of the car which failed to give way to a car on his right. He claimed to have had a bang on the head and was taken immediately to Hastings Hospital where, after a five-minute examination, he was discharged. The traffic officer then drove the appellant into Orchard Road and conducted a breath test to which the appellant agreed. This test was completed some 25 minutes after the accident and was positive. A second breath test at the Police Station 25 minutes later was again positive. A blood test was taken some 40 minutes later at 7.63 p.m. and the sample was dispatched to the D.S.I.R. on 3 June being the first day on which the Post Office was open for registered mail after the Queen’s Birthday holiday. A duly qualified analytical chemist of D.S.I.R. gave evidence of two tests oarried out on this sample which showed a proportion of alcohol in the blood exceeding the prescribed limit. No evidence was called for the defence. The appellant appealed against his conviction on the grounds that the Magistrate was wrong in fact and in law. Held, 1. The fact that the appellant had just been involved in a collision on the face of it due to his failure to give way, coupled with the admission that he had had a few beers, was sufficient ground for the traffic officer having suspicion, in terms of s. 59B (1) of the

Transport Act 1982 and entitling him to require the. appellant to undergo a breath test. (Scott v. Baker [1968] 3 W.L.R. 796; [I9081 2 All E.R. 993; R. ‘+. Spencer (1863) 3 F. & F. 854 and Tumzer v. Pattereon: (1908) 27 N.Z.L.R. 207, considered.) 2. Having regard to the statutory consequences of failure to provide the breath test, the traffic officer’s statement “I told him he would have to take a breath test” was sufficient to “require” the appellant to undergo the test. (Earl of St. Oermana v. Barker [1936] 1 All E.R. 649 and Tool Metal Co. v. Twngstelz ZUectrio Co. [19SS] 1 W.L.R.’ 761; [1966] 2 All E.R. 657, considered.) 3. The word “forthwith” in s. 59B (1) of the Act means “as soon as reasonably practicable”. In view of the appellant’s complaint of having had a blow on the head, the traffic officer acted correctly in first taking him to hospital; the time lag was short and such reasonable delay did not invalidate the First test. (Frmer v. Police [1967] N.Z.L.R. 447, applied.) 4. The production in Court of a copy of the Transport (Breath Tests) Notice 1969 is sufhcient proof of the Notice and even though not given an exhibit number is production within the meaning of 8. 32 of the Evidence Act 1908 and s. 12 of the Evidence Amendment Act 1946.6. The Magistrate oorrectly held that there was no evidenoe in this case to rebut the presumption in s. 69~ (8) of the Act or to raise a reasonable doubt as to its application. Appeal dismissed. C&&urn v. Wtig& (Supreme Court. Napier. 1969. 13, 14 August; 30 September. Beattie J.).

CASE English Cases Contributed by

AND COMMENT the Faculty of Law, University of Canterbury

Intention to Create Legal Relations Recently in this column there appeared a note

on three cases on family agreements, and the consequent problems of intention to create legal relations. The 1969 English reports contain three further cases relevant to intention to create legal relations. This is somewhat remarkable, for this topic is one which has not often been the subject of decision in the past; six cases in one year is a bumper crop indeed.

The books state that in the case of commercial as opposed to domestic arrangements it will be presumed that the parties intended to enter into legal relations, although this presumption is rebuttable. What is meant by “commercial” here is not very clear for the term has hazy boundaries; but a transaction between two businessmen at arm’s length involving something of monetary value is certainly the perfect core conception of the commercial agreement. It probably extends to anything which comes under the rubric “business”.

:

The presumption of intention to create legal relations which arises in the case of a “commercial” agreement can be rebutted either expressly or by implication, In Ton% v. Standard

Telephones and Cables Ltd. [1969] 3 All E.R. 201 express rebuttal was alleged. Two parties were negotiating the settlement of a claim, and one headed all his correspondence “without prejudice”. Agreement was reached on the basic issue of liability, and one of the questions which arose was whether there was a binding contract, or whether the cautionary heading meant that no legal relations were intended. The question was answered by reference to a dictum of Lindley L.Ji in Walker v. W&her (1839) 23 Q.B.D. 335:

“What is the meaning of the words ‘without prejudice’? I think they mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted. If the terms proposed in the letter are accepted a complete contract is established, and the letter, although written without prejudice, operates to alter the old state of things and to establish a new one.”

The statement makes the point so clearly that further elaboration is unnecessary. One may simply ponder what the result would have been if both sides had headed their letters “without prejudice”. It could then perhaps have. been argued that the second letter was not an tin

78 THE NEW ZEALAND LA w JOURNAL 3 March 1970

equivocal, unconditional acceptance, and thus that no contract was completed. The point remains open. (The case also raises another important point, not relevant to the present note, when it suggests that there may be occasions where, if the parties to a contract are agreed on basics, there may be an enforceable contract even though negotiations are still proceeding as to details. This contradicts the traditional understanding, and it may well be that the decision is limited to its facts-the case where the apportionment of liability for an accident is agreed and all that has to be agreed is the quantum of damages.)

The second of the three cases, apart from being of enormous practical importance in the United Kingdom, is a very good illustration of the rebuttal of the presumption of intention to create legal relations by implication rather than by express words. In Ford Motor Co. Ltd. v. Amalgamated Union of Engineering and Foundry Workers [1969] 2 All E.R. 481 Geoffrey Lane J. held that a collective agreement between trade unions and an employer, although a commercial arrangement, was not a legally enforceable contract, just because there was no intention to create legal relations. The Judge’s method of approach is interesting. Rather than lay it down as a general rule of law that collective agreements are not enforceable (a view to which many writers incline), he preferred to take a rather subjective approach and ask what the parties to this agreement must have intended. He took two factors into account in deciding that they could not have intended legal relations. The first was the language used in the agreement; rather than being couched in the definite language or promise, many of the clauses contained “vague aspirational wording”. This suggests not only that some of the clauses were too uncertain to enforce, but also that the words used were words of hope and desire rather than promise. The second factor was that the general climate of opinion-expressed by academics, businessmen and a government commission- was that collective agreements are not legally binding. The writings and reports of these experts “would doubtless be read and digested by both the management of Fords and also by the various union officials”, and this suggested that the negotiators in this case came to their task with the view that their agreement would not be legally enforceable. It was objected by counsel that these opinions were not authori- tative sources, and should not be relied on by the Judge. But Geoffrey Lane J. pointed out hat he was not using the opinions 8s authority

for his conclusion at all: he was merely trying to ascertain the state of mind of the negotiating parties:

“Where a Court is endeavouring to discover the intention of the parties to an agreement, it is impossible and indeed unreal to disregard evidence of their knowledge and accordingly of their state of mind at the time, These document,s show, to my mind, that certainly since 1954 the general climate of opinion on both sides of industry has overwhelmingly been in favour of no legal obligation from collective agreements” (ibid., 495).

Geoffrey Lane J. thus made some effort to find the actual intentions of the parties. He was concerned not so much with collective agreements in general, but rather with this agreement and these parties; his decision goes no further than that. It may be said that it is somewhat unsatisfactory that in an area of the law which has such important repercussions on society at large a Judge should spend his time searching for a fairly artificial “intent,ion”, and leave all-important policy fact’ors unconsidered (or rather unmentioned). (Judges do this in matters other than legal enforceability, too: see Spring v. N. -4.8. A. D.B. [1956] 2 All E.R. 221). Yet one can understand the reluctance of the Judges to lay down sweeping propositions in such a potentially explosive area; and at least this approach based on the intention of the actual parties is amply flexible, and allows the Court to approach each case on its own facts and produce a decision best suited to the demands of the occasion.

The third case, Connell v. Motor Insurers’ Bureau [1969] 3 All E.R. 572 is an awkward one. On three separate occasions the plaintiff obtained a car ride from a casual drinking acquaintance named English, on the terms that he would pay English the sum of IOs., and buy him a drink. Although the question involving insurance- there was an accident on the third occasion- was decided on another point, the members of the Court of Appeal expressed their views on whether there was a contract of carriage between Connell and English. This was a difficult question, for the arrangement here did not fall comfortably into either of the common categories into which the books divide this field-domestic and commercial agreements. It was a transaction sui gene&. This meant that there was no real presumption either way, and the Judges had to ask, from scratch as it were, whether the parties intended legal relations. A very nebulous question that was on the scant facts available to the Court; it was admitted that most probably


neither party gave a thought to whether a legal relationship was intended. No real guides were laid down by the Judges, except that Sachs L.J. reiterated the not very helpful and sometimes not very meaningful truism that “the test of contractual intention is objective, not subjective”. They concluded, however, that there was probably a binding contract here. To quote Sachs L.J.:

“This is not one of those ‘domestic or social occasions’ . , . on which legally binding contracts are in appropriate circumstances found not to have been made. The dividing line may sometimes be thin, but in the instant case the agreement appears to me to have been well on the contractual side of the line” (ibid., 576).

Their Lordships did not treat this as a special case, but rather seemed to assume that a contract will be the usual inference when one man agrees to carry another for financial reward. It is thus not at all easy to reconcile this case with Coward v. Motor Insurers’ Bureau [1962] 1 All E.R. 531, where it was held that an arrangement whereby one man carried another to work every morning on his motor cycle in return for a monetary contribution to the petrol was not a contract, there being no intention to create legal relations. Lord Denning made no effort to distinguish Coward’s case but said bluntly that he was “not altogether satisfied” with it. Sachs L.J. was a little more circumspect, saying that in Coward’s case both parties to the arrange-

ment had died before the case came to Court, and thus there was no longer any evidence of what the terms of the arrangement were. “Too many material facts were on that case left in doubt.”

If any conclusion is to be drawn from all this, it is that the only time it is easy to determine whether a contractual intention exists is where it is spelled out in express words by the parties. The rest of the time the Courts are trying to infer intention from “circumstances”. It is not much help in this search to say that the law of contract takes an objective approach: that “what matters is not what the parties had in their minds, but what inferences reasonable people would draw from their words or conduct”: Cheshire & Fijoot on Contract, 2nd N.Z. ed., 89. What this statement normally means in the law of contract is that one party will not later .be allowed to proclaim that his private, un- communicated intention at the time of the contract was different from what his words and conduct would have led one to believe. But the problem is that often the parties do not even have a private unoommunicated intention about legal enforceability, let alone one demonstrated by words and conduct, for they are looking ahead to performance rather than breach. In such a case all the Courts can do is to ask what reasonable men in the position of the parties would have intended had the question of legal enforceability been considered by them. And that involves a good deal of judicial intuition and a certain amount of public policy. J.P.B.

REGULATIONS Regulations gazetted from 20 January to 9 February

1970 &I% as follows: Arms Regulations 1959, Amendment No. 7 (S.R.

1970/13j Customs Export Prohibition Order 1970 (S.R. 1970/10) Customs Tariff Amendment Order 1970 (S.R. 1970/2) Customs Tariff Amendment Order (No. 2) 1970 (S.R.

1970/3) Customs Tariff Amendment Order (No. 3) 1970 (S.R.

1970/6) Customs Tariff Amendment Order (No. 4) 1970 (S.R.

1970/7) Customs Tariff Amendment Order (No. 51 1970 (S.R. % ,

1970/9) National Provident Fund (Interest on Investments)

Order 1966, Amendment No. 2 (S.R. 1970/11) New Zealand-Australia Free Trade Agreement Order

1970 IS.R. 197011) New Ze&end-Aus’tr~lia Free Trade Agreement Order

(No. 2) 1970 (S.R. 1970/8) Oyster Fishing Regulations 1946, Amendment No. 5

(S.R. 1970/4) P&t Office B&us Bonds Regulations 1970 (S.R. 1970/6) Trustee Savings Banks (Investment in Government

Securities) Order 1969. Amendment No. 1 (S.R.

OBITUARY Mr W. D. Dent

Mr Warwick Dehan Dent, a partner in the Wellington firm of Luckie, Hain, Kennard and Sclater, died recently at the early age of 32.

Mr Dent was educated at Wellington College and Victoria University from which he graduated LL.B. in 1960. During his university years, Mr Dent took a keen interest in debating and had the distinction of winning at the age of 19 the New Speakers’ prize, the Union Debating prize and the Plunket Medal for oratory in the one year, He represented Victoria University in many debates and, with Mr E. W. Thomas, toured the western States of America debating in many universities.

He is survived by his wife and two small daughters.

THE NEW ZEALAND bw JOURNAL 3 March 1970

RESULTS OF QUESTIONNAIRE FOR PRACTITIONERS ON LEGAL EDUCATION

The Legal Research Foundation recently distributed a comprehensive Questionnaire on Legal Education to practitioners in the Auckland Law Sooiety District. Approximately 490 practitioners completed the Questionnaires and these have now been processed. What follows is a brief selection of a few of the questions and answers.

To which of the following areas do you &vote a rigni,ficant portion of your time?

70% of those who answered marked general practice, 62% marked conveyancing, 54% family law, 45% commercial and company law, 45% mortgages and securities, and 40% marked estates. St the other end of the scale, international law failed to score, 11% marked taxation 14% local body law, and 15% marked workers’ compensation. Personal injuries litigation for plaintiffs scored 25%, while personal injuries litigation for defendants scored 13%. It appears that the bread and butter of the profession is still conveyancing and general practice, while a significant number of practitioners are involved in family law matters. Taxation seems to be still largely in the hands of the accountants. The low figures for personal injuries litigation may indicate that the Wood- house Report, if adopted, will seriously affect only a comparatively small number of lawyers, drastic though the results may be for them.

What were your main reasons, for coming to Law School! (IPlease indicate more than one, if desired, but not all.)

56O/, of those responding stated that interest in the subject-matter was the main reason. Only 11% stated t’hat they went into the profession to make a lot of money. 25% were motivated by intellectual stimulation. 21 y. became lawyers because they liked to argue and debate.

The contribution made by various facets of legal education

Those factors which received high ratings were reading and other study for courses, informal discussion with other students outside the class, teachers in the classroom, and Moot- Court cases. Those factors with a low rating included visiting teachers from abroad, and the

association with law teachers outside the classroom.

In relation to the present law course and to the .general manner in which it is taught at Auckland, make any comments which you feel appropriate, bearing in mincE the nature of modern legal practice and assuming that the majority of students are going to practise Law

By far the most popular comment here was that legal education should be more oriented to the practical problems encountered in practice. 73% of those responding made this comment. 55% favoured the associated idea that there should be a short compulsory practical course to be taken after graduation but before admission. 43% of those responding felt that law teachers should receive training in classroom teaching techniques, while 48% believed that teachers should be chosen leas for their writings and more for their ability in the classroom. Only 6% of those responding were satisfied with the existing structure of legal education.

Do you feel there is a need for cortiinuing legal education for practitioners!

93% answered yes, 4% answered no, 3% expressed no opinion. 63% of the persons responding also felt that the Law Society did not disseminate enough practical information to praotitioners about recent changes in the law. These responses surely constitute a challenge to the District Law Societies to do more to cater for this particular need, particularly when it is remembered that the practitioners responding already receive the Auckland District, Law Society Newsletter which does contain information about changes in the law.

The Legal Research Foundation is holding a Symposium on Legal Education on Saturday, 4 April 1970, at the University of Auckland Law School. Many other aspects of the I aw practitioners’ questionnaire will be discussed at the Symposium. Three papers will be delivered and commented upon. Two of the authors will be practitioners, one a law teacher. Those wishing to attend should communicate as soon as possible either with the Legal Research Foundation, P.O. Box 6813, Auckland, or with the District Law Societies who have enrolment forms,

3 March 1970 !bm NEW ZEALAND LAW JOURNAL

JUDGMENTS AS EVIDENCE

81

When can a judgment be evidence! Before Jorgensen v. News Media [1969] N.Z.L.R. 961 it was generally accepted that a judgment is inadmissible as evidence of the facts on which it is based. It may create an estoppel, where it affects the status of a thing or person (judgment in rem) or where the parties to the proceedings are bound by it, because of their participation in the earlier case (judgment in persoltant). The judgment is then conclusive, and cannot be controverted. But unless the judgment creates an estoppel, it cannot be used in the later proceedings at all. This was held to be the law in the English Court of Appeal decision, Hol- lington v. F. Hewthorn & Co. [1943] 1 K.B. 587; [1943] 2 All E.R. 35. In Jorgensen, however, the New Zealand Court of Appeal declined to follow that decision, and held instead that a judgment can, in certain circumstances, be evidence of the facts which it finds. The holding and its implications are considered in this commentary.

The plaintiff in Jorgensen had been convicted of a sensational murder. The defendant news- paper proprietor published an article some four years after the conviction, describing the murder and the plaintiff’s part in it. The plaintiff, however, still claimed he was innocent, and brought the present suit for libel, with the object of clearing his name. He contended, on the authority of Hollington v. Hewthorn, that his conviction was not admissible in the libel suit as evidence that he had committed the murder described in the article. The effect of this was, of course, that the defendant would have to prove once more the very facts which were found by a criminal Court four years before, without the aid of the conviction.

The trial Judge held himself bound by Hollington v. Hewthorn. He admitted the conviction, but only as evidence in mitigation, to show that the plaintiff’s reputation could not have suffered severe damage even if the article was untrue. He directed the jury that the conviction must not be used by them as evidence that the article was true. The jury failed to agree. The Judge then decided that, rather than repeat the same direction to a jury at a second trial, a ruling on the point should be obtained from the Court of Appeal. The matter thus reached that Court on a case stated, before the matter proceeded further. The Court heId the

conviction admissible, in these circumstances, to prove that the plaintiff committed the murder.

As a, statement of current judicial policy in the law of evidence in New Zealand, the case is of considerable importance. The Court’s members affirm its obligation to reconsider an English decision which has stood for twenty-five years as the definitive statement of the law with which it dealt (see especially per Turner J. at 990). They also declare its willingness to develop new exceptions to the hearsay rule, notwithstanding the more conservative attitude which prevails in England (per North P. at 979; Turner J. at 990; McCarthy J. at 993). Purthermore, in reaching their conclusion, they consider and give weight to the recommendations of a law reform body, the English Law Reform Committee set up to consider evidence in civil proceedings (per North P. at 968-970; Turner J. at 986, 991; McCarthy J. at 993). These are strong indications that the Court is irrevocably ctimmittecl to a leading role in the reform of the adjectival law of New Zealand, a role which, some might claim, it has until recently neglected.

As a statement of the law governing the use of judgments as evidence, however, the decision is somewhat obscure. Certainly, the “un- compromising terms” in which the decision in Hollin~gton v. Hewthmn was expressed are now substantially qualified. Certainly, too, a conviction for murder is now admissible in New Zealand as evidence in the defence of a libel suit where the convicted murderer asserts his innocence. But when, and on what principles, should the Courts admit judgments as evidence! It seems, with respect, that no clear answer to the question emerges from the judgment. On the one hand, Hollington v. Hewthorn is no longer the law. On the other, it is still the duty of the Court to reject judgments presented as evidence in certain oases.

That the rule in Hollington v. Hewthorn is only qualified and not abolished, emerges from various examples that are cited in the judgments. It seems, in these oases, that Courts will still be expected to exclude the findings in an earlier decision.

Thus, North P. (970, 976) refers to the standard practice in motor accident claims to exclude Police Court convictions consequent upon the accident. Here, “little or no incon-

82 THE NNW ZEALAND LAW JOURNAL

venience was experienced by rejecting this class of evidence which, even if admitted, would usually have little probative value. . . .” Neither North P. nor Turner J., who mentions the practice at 982, appears to dissent from it, so presumably it remains unchanged. North P. also refers to the acquittal in a criminal case, which is no parallel to a conviction, since all it shows is that the Court was not satisfied of the accused’s guilt beyond reasonable doubt (978). Acquittals too, then, appear unaffected by the new ruling.

Turner J. (985) gives another instance where the conviction, it seems, is inadmissible. This occurs where the person against whom the conviction is tendered was not a party to the prosecution. For instance, a man forges a cheque and is convicted. The person to whom the cheque is uttered still claims that it is genuine. Can the conviction be tendered as evidence against him by the person whose name has been forged. No; according to Turner J. the conviction is “reg inter alias acta, and neither of the parties to the subsequent litigation was a party, and neither could call evidence nor cross-examine the witnesses who testified” (986). But the qualification is not a clear one, as Turner J. himself later casts doubt on the validity of the rea inter alias acta principle where the judgment is used as evidence, not as an estoppel (986).

Finally, McCarthy J. goes further than giving mere examples, and states a positive restriction on the new ruling. He says (994):

“It might be said (though I don’t agree) that if one makes an exception from the hearsay and opinion rules for a conviction recorded at a criminul trial in the Supreme Court (a plea of guilty is already admissible as an admission) one should logically go further and make the exception sufficiently wide to include if not all civil judgments of the Supreme Court, at least its findings in divorce and paternity, decisions of inferior Courts and even perhaps decisions of other jurisdictional bodies as, for example, the professional disciplinary bodies, the Racing Conference, etc. The answer to that is at this point of time we are concerned with one matter only. If it is desirable that a somewhat wider exception be created than I am prepared to accept today, that can be attended to when Parliament considers the matter generally as I hope will be the case” (author’s italics).

It is not clear, however, whether he means to say that, as a matter of law, no judgment which is not a criminal conviction in the Supreme

Court can ever be admitted as evidence, or whether he means that Jorgensen can be regarded as direct authority for that situation only, leaving the matter open for the Courts as well as the Legislature when other situations arise.

While these examples show clearly that Jorgensen is not to be interpreted as making all judgments evidence for all purposes, they do not, it is respectfully submitted, give a very clear picture of the principle that should be applied in admitting or excluding such evidence. Taken singly, the instances are isolated and unhelpful. Taken as a whole, they show merely that some judgments are more reliable, and have more probative force, than others. They do not, of themselves, explain why the Court draws the line here and not there. Why, for example, confine the new ruling to Supreme Court judgments! Why accept as evidence a conviction (which might be highly unreliable, the accused having been unrepresented), but reject a disputed divorce finding, where the degree of cogency of proof required may be almost as strong, and the parties assisted by a battery of Q.C.s, private investigators and the like? One must, therefore, look beyond these isolated instances, and search the judgments for statements of principle.

It might have been hoped that, in the Court’s discussion of the authorities before and after Hollington v. Hewthorn, something concrete might emerge. It does not do so. There are lengthy collections of previous decided cases (per North P. at 971-976; Turner J. at 987-990) and discussions of the practical disadvantages of the Hollington v. Hewthorn rule (per North P. at 967-970). These are informative and thorough, and no doubt, essential to the judicial inquiry. But they are marshalled with a view to establishing one proposition only, namely, that there is no absolute rule barring judgments as evidence in subsequent proceedings.

The Court makes no attempt to weld them into an alternative exclusionary theory. The same comment may be made about various observations in the judgments invoking “oom- mon sense” (per McCarthy J. at 994) and the paramount consideration of “relevancy” (per Turner J. at 986). All of these observations support the complete abolition of the Hollington v. Hewthorn rule, yet it is clear that the Court does not wish to arrive at that result. They therefore tell the reader too little, because they establish too much.

If any definite policy is to emerge from the judgment at all, therefore, it must come from the Court’s discussion of Hollington v. Hewthorn

3 March 1970 !L’HE NEW ZEALAND LAW JOURNAL 83

itself, and the way in which it disposes of those arguments of principle which seemed conclusive against admitting judgments as evidence in ?he earlier decision. Three such arguments of principle are thought worthy of extended comment in Jorgensen. They are, firstly, that admission of a judgment offends the opinion rule; second, that it offends the maxim, re8 inter alias acta alleri nocere non &bet; third, that it offends the hearsay rule.

The argument based on the opinion rule runs as follows. The Court is seised of the function of deciding a dispute. If it accepts someone else’s opinion, then it is neglecting its duty. This is just as true where the opinion is that of another Court as it is where the opinion is that of a witness. The Court of Appeal meets this point by saying that a judgment may be much more weighty than witness’s opinion, and should therefore have greater olaims to being treated as evidence. North P. says (at 976):

“ . . . this approach was a revolutionary extension of a rule which hitherto had been traditionally concerned with the opinion of witnesses. . . . In my opinion a finding of guilty after a trial in which one of the parties to the subsequent civil action had every opportunity of defending himself cannot possibly be regarded as being of no greater weight than the opinion of a witness.”

Turner J. tackles the problem in a similar way, saying (986):

“ . . . it seems to me that the Court of Appeal in deciding Hollington v. Hewthom gave far too little weight to the principal consideration upon which a first approach should be made in every question of admissibility-viz, how much logical relevance has the evidence tendored to the question in issue? I cannot doubt but that most men would be shocked by the proposition that the conviction of X. in a New Zealand Court for murder is logically irrelevant in considering the question whether he committed murder. Such a proposition has only to be stated to be rejected out of hand.”

These arguments are addressed to the particular problem before the Court, and say little about the principle to be applied in the borderline oases. When is the degree of logical relevance insufficient, so that men would cease to be “shocked” if the judgment were excluded! In particular, by what process of reasoning can one reach the proposition of McCarthy J., that only a conviction obtained in the Supreme Court may be good enough to be exempted from the opinion rule!

The argument based on re.s in&r adios acta runs, that a proceeding contested between two parties should not prejudice a third. This it would do if he were confronted with the judgment in the earlier case and told that he had to disprove it. On this point, ambivalence pervades the judgments of North P. (977) and Turner J. (985). Both begin by making the obvious point that the plaintiff in Jorgensen was before the Court in the earlier case and therefore could not possibly be prejudiced. But they do not unequivocally adhere to the oonverse proposition, that a judgment cannot be tendered against anyone who was not a party to the judgment. North P. cites Cross on Evi&n& (3rd ed. 1967) 374, where no more is said than that “it may be unjust to hold a person bound by a finding of fact in proceedings in which he had no responsibility for the pleadings, and could neither give evidence nor cross-examine.” Does this mean that, as long as it is not tendered as conclusive and the other party is free to disprove the finding, res inter alias acta does not apply! This would seem to be confirmed by Turner J.‘s observation that “the fact is that the maxim is one whose application is in modern English law almost exclusively to be found in cases of estoppel” (985). As for McCarthy J., he does not seem to regard res inter alios acta as worth mentioning at all (993). None of these passages is easy to follow, but one cannot confidently draw from them any concrete proposition of law dealing with res inter alias acta.

The argument based on hearsay is that evidence which is not heard and tested in Court proceedings is insticiently reliable to be admitted. Obviously, this is not a convincing argument when applied to a conviction for murder, and the only question is how it should be dealt with. Should it be fitted into an established common law exception to the rule, or should a new exception be made for it? The question is not merely academic, since the choice may have significance in the decision of later oases.

North P. (979.980) prefers to fit judgmentsinto the common law exception which says that statements in public documents are admissible in evidence, though he concedes that other views are permissible. The effect of this ruling would be that any judgment of any Court, being “public”, would presumably qualify though there would be diflioulties with arbitration awards and the findings of domestic tribunals.

Turner J., on the other hand, prefers to create a new exception, rather than fit the case into an old (990). The exception is based on the

fact, firstly, that there can be no doubt that the Court conviction is an rtccurate account of the proceedings, and secondly, that the evidence must be reliable since a conviction can only be obtained where proof goes beyond reasonable doubt. It might be argued, from this passage, that the admissibility of judgments is limited to criminal convictions. If one links the passage up with the comments of McCarthy J., already quoted, one might get a majority holding to that effect. But this can hardly have been intended. It would be irreconcilable with Harvey v. The King [1901] A.C. 601, s, decision of the Privy Council much relied on in all three judgments (per North P. at 975; Turner J. at 988; McCarthy J. at 994), where the judgment admitted was a finding of the Master in Lunacy. The exception that Turner J. creates, therefore, is still somewhat indistinct, since it is difficult to imagine any Court bringing itself to the conclusion that one of its predecessors was likely to keep its records inaccurately or make an unreliable decision, except in the most unusual circumstances. No other possible limitation is discussed.

All of this, of course, brings the matter to its original starting point. How does one decide whether a judgment is admissible or not? The opinion evidence rule and the hearsay rule do not apply if the judgment is reasonably reliable; the res inter alios acta maxim may never apply where the judgment is tendered as evidence and not as an estoppel. How then is it possible to maintain that there are judgments which, even though they have some probative force, are inadmissible under the new law? Having exhausted accepted methods of inter- preting Jorgensen, one is forced to speculate about developments in the law which have yet to come.

Probably the central feature of any law dealing with the admissibility of judgments will be an individualised judicial discretion. The possible factors which need to be weighed, and the particular circumstances which might arise in individual cases, are too complex and varied for the matter to be expressed completely in a “rule” or a series of statutory exceptions. Hollington v. Hewthorn itself is a good example. There is, as has been mentioned, a sound practice of not allowing evidence of Police Court con. vi&ions in cases of motor accident claims arising out of the same affair. But in Hollington v. Hewthorn, it was rigidly applied in a case where the claimant’s witness had died between the Police prosecution and the accident case, so that he had no other evidence. Would it not have been more desirable in such a case to

admit the conviction in the Court’s discretion, rather than exclude it pursuant to an inflexible rule? Problems like this will be repeated if the Courts do not recognise that “rules” are here practical guides only, to be applied with discretion and a sense of justice.

What factors need be taken into account in the exercise of the discretion? Obviously, the special circumstances of each case, as has been mentioned. Obviously too, since so much emphasis is placed on it in Jorgensen, the reliability of the judgment as evidence of the facts on which it is purportedly based. But there are other factors, hidden beneath the surface in Jorgensen, to which it may be expected that more prominence will be given. These are the factors which tend against the admission of the judgment, and which are to be found in the arguments of principle with which the Court dealt. Was the earlier Court in a better position to judge the matter than the present one! Was it peculiarly suited for the task, as with a criminal Court, on the question whether or not a crime had been committed, or did it decide the matter by chance, as where a Court dealing with a matrimonial dispute interprets a contract between one of the spouses and a third party! Did the party against whom the judgment is tendered have an opportunity to defend himself in the earlier proceedings and, if not, does this matter? Was the issue likely to be fully investi- gated and argued in the earlier case, or was too little at stake to make that worth while? These considerations are derived from the opinion, res inter alios actu and hearsay rules, and should be applied directly to the facts of each case.

Adopting this method of approach, the instances of judgments which are not admissible no longer seem arbitrary. The Police Court conviction is generally rejected because that Court has no more special expertise in traffic accidents than any other, and the parties are unlikely to go to great expense in trying the case; against this, the conviction is of small probative value since the issues decided in each case are not the same. The forgery conviction, tendered against the victim of the forgery, is excluded because it handicaps him unfairly to have the prior judgment, in which he had no part, interfere with his attempts to show that the document was genuine. The acquittal will be excluded, in many cases, simply because of its want of probative force, though it is difficult to see how it could be prejudicial, and it may help to give the Court a complete picture of the events with which it is dealing. All of this happens, not because of any pre-conceived restriction on relief, but because the individual

THE NEW ZEALAND LAW JOURNAL 85

Court considers that the inclusion or exclusion of the judgment is the best course in the interests of justice.

It may be objected, to this approach, that counsel will have difficulty in forecasting the result of their cases, and certainly this is a problem which should not be minimised. But there is so much uncertainty about the effect of judgments anyway, that this particular problem ought not to stand in the way of a just rule. If one had, instead, a clear rule excluding the evidence, counsel would still have to consider the effect of the judgment getting in for other reasons, for example: through impeachment of a witness, or, as in Jorgemen itself, in mitigation of damages. If one had a clear rule including the evidence, counsel will still have to weigh the effect of the judgment on the Court’s mind; as Turner J. points out (992), a judgment has no necessa,ry effect on the mind of the Court, and whether or not it satisfies an evidentiary burden “must depend on the whole of the evidence at that stage of the case” when the matter falls to be determined. Indeed, if a

judgment is so marginally probative that it is in danger of exclusion, then it is likely to have little effect even if it is admitted, so that an accurate forecast on this point seems unnecessary. So if the Courts are convinced that the discretionary approach is the better one, arguments based on difficulties of prediction will not be decisive against it.

This commentary has ranged a little further than might have been expected. Beginning with an account of what the judgments in Jorgensen say, it goes on to discuss what they do not say, and what the Courts might say in the future but so far have not. This last is pure speculation, which might be frustrated by the Courts’ reluctance to accept an explicit, wide-ranging discretion, or by the anxious interference of the Legislature. But the matter is one of such importance, and the leads given by the Court in Jorgensen are so elusive, that this commentator will be forgiven, it is hoped, for wandering beyond the traditional paths of exposition and criticism.

R. J. SUTTON.

MAINTENANCE OF CHILDREN UNDER THE DOMESTIC PROCEEDINGS ACT 1968

It is the purpose of this article to set out the rules relating to the maintenance of children. In a previous article, [1969] N.Z.L.J. 684 the writer dealt with the maintenance of wives under the Domestic Proceedings Act 1968.

This is dealt with by ss. 35 to 39. They impose upon parents what Mr Kanan described as the fourth main principle of the Act-an equal responsibility in providing for their children: Hansard, 22 November 1968, col. 3365.

No distinction has been drawn between those born in wedlock or out of wedlock as to their right to be maintained, the quantum of maintenance or the duration of time for which the maintenance shall last. This is in keeping with the spirit of the Status of Children Act 1969, as to which see B. J. Cameron, [1969] N.Z.L.J. 621. The one distinction, however, that will still have to be drawn, is that the paternity of a child born out of marriage has to be properly proved, as to which see Webb, [I9691 N.Z.L.J. 635. The mother of such a child is not in such good case as regards maintenance for herself

as is the married woman, though, as explained in the latter article, it will be seen that her lot is considerably better than formerly.

Maintenance Applications by Mothers Against Fathers

By s. 36 (l), the Magistrate’s Court may make an order against the child’s father on being satisfied that the father is not providing or is likely not to provide proper maintenance for the child. By s. 2 of the Act, “maintenance” is to mean “the provision of money, property, and services; and includes, in respect of a child, provision for his education and training to the extent of his ability and talents, and, in respect of any deceased person, the cost of his funeral”.

Before ordering the father to pay maintenance in respect of a child, the Court must be satisfied that it is reasonable to make the order against him, regard being had to the following con. siderations:

(a) Both parents’ means, including the father’s potential earning capacity;

86

(b)

(0)

(d)

THE Nxiv ZEALAND LAW Joum~L 3 March 1970

The responsibilities of each parent, including his or her responsibilities to any other person whom he or she has a legal obligation to support and (to such extent, if any, as the Court in all the circumstances and having regard to the public interest, thinks proper) his or her responsibilities to any other person he or she is in fact supporting; The contribution, whether in form of oversight, services, money payments or otherwise, of either parent in respect of the care of that or any other child of the family; and, Any other circumstances thought by the Court to be relevant.

Maintenance Applications by Fathers Against Mothers

By 9. 35 (2) a.,father can seek a maintenance order agaiust ,the child’s mother for its maintenance, but the father must be, or have been, married to the mother or have lawful custody of the child, whether or not under a Court order.

The Court must, however, be satisfied that the mother is not providing or is likely not to provide proper maintenance for the child, and that, in all the circumstances of the case, it is reasonable that she should maintain, or contribute towards the maintenance of, the child.

Applications by Parents Against Step-parents and by One Foster-parent Against the Other Foster-parent

Orders may be made by virtue of s. 35 (3) as if the. step-parent or foster-parent were the fatherfniother of the child in any case where the child is a member of the familg of both parties when the application is made or is at that time li$fng ‘with the applicant and apart from the defendant but was a member of that family immediately before the separation of the appli- &ant and the defendant. In this event, s. 35 (1) and (2), so far as they are applicable and with the necessary modifications, extend and apply as though the step- or foster-child were the child of both parties.

: Applications by .Persons Other than Those

Mentioned in S. 35 Against Parents Section 36 provides, by subs. (I), that a

maintenance order can be made against either or both parents on the application of:

(a) Anyone having the lawful care of the child; or,

(b) A Child Welfare Officer. If an application is ma& against one parent, he or she may, by virtue of s. 36 (2), join the other

as co-defendant and in any case the Court of its own motion can direct joinder of the other parent.

Section 36 (3) requires the Court, when considering whether to make an order and against whom to make it, to consider certain matters. These are:

(a) The parents’ means and financial responsibilities, including their potential earning capacity;

(b) The contribution, whether in form of oversight, services, money payments or otherwise of either parents towards the care of that or any other child of the family; and,

(0) Any other circumstances thought by the Court to be relevant.

It may be that a Court makes an order under this section and the other parent was not a co- defendant with the one against whom the order was made. In this event s. 36 (4) allows the one against whom the order was made to apply to the Court for an order requiring the non- defendant parent to make a money contribution towards the child’s maintenance. The Court may then make such order as it thinks is reasonable.

Applications by Agents Those entitled to apply for maintenance or

contribution orders under ss. 35 and 36 may, by virtue of s. 37, employ agents, but must give their agents written authority.

Orders Against Fathers of Children Born Outside Marriage

This is a special case which is dealt with by s. 38. No maintenance order may be made under ss. 35 and 36 against anyone as the father of a child if he is not, and never has been married to the child’s mother. Four exceptions are made to the rule by s. 38 (1):

(a) Before or at the time of making the maintenance order the Court has made a paternity order against him;

(b) The Supreme Court has declared him to be the father of the child;

(c) He has been declared such by an order made in some foreign country to which this section has been applied by Order in Council under a. 38 (2);

(d) He has in proceedings before the Court. or in signed writing admitted paternity.

What provision can an order under as. 35 and 36 make, and for how long may it last?

By s. 39 (1) the order can direct the parent to pay towards the child’s future maintenance such

3 iikrch 1970 THE NEW ZEALAHD LAW JOURNAL 87

periodical sum as the Court thinks reasonable; it may direct a reasonable lump sum therefor; it may direct a reasonable lump sum on account of back maintenance. There are rules as to payment of lump sums in s. 39 (2) and they are the same as those in s. 26 (2) above.

No order for future maintenance of a child is, however, to be made if 6he child is of or over the age of sixteen when the order is made unless it appears to the Court that it is, or will be, engaged in a course of full-time education or training and that it is expedient that payments towards its maintenance should be made: s. 39 (3).

It is also the case that an order for the future maintenance of a child under sixteen at the date of making the order is not to have effect after it attains the age of sixteen unless the Court directs so in any case where it appears to the Court that, after attaining the age of sixteen, the child will be engaged in a course of full-time education or training, and that it is expedient that payments towards the maintenance of the child should continue to be made after the child attains the age of sixteen.

It is, however, possible by virtue of s. 39 (5) to apply in these cases to extend an order beyond the age of sixteen at any time, whether before or after the child attains that age.

In the event of an order being made under s. 39 (3) after the child is sixteen, the Court can. also order the defendant to pay, in respect of the child’s past maintenance during the period beginning on the date when the child attained that age and ending on the date of the order, such sum at such time or times and in such tianner as it thinks tit.

There are certain final upper limits under s. 39 (7). No order is to be made under ss. 35 or 36 where at the time of its making:

(a) The child is of or over the age of twenty- one; or,

(b) The child is married. Accordingly no order and no extension of an

order can be effective after the child is twenty- one or sooner marries. Hence it is too bad if the education or training of the child goes on after marriage or majority; the order will simply have to cease.

The Court is permitted by s. 39 (8) to impose conditions as it thinks fit when it makes orders under ss. 35 and 36, and when it varies them or extends them.

Procedural Points Since a claim for maintenance foi a child will

fall within the term “any proceedings under

this Aot relating to any child” used in s. 8 (1)) the Court may, if it thinks fit, request a Child Welfare Officer to make a written report to the Court on matters relevant to the child’s welfare and maintenance, and the Officer has to report aocordingly.

Moreover, also, s. 8 (2) provides that in any proceedings under the Act in relation to maintenance, the Court may, if it thinks fit, as with a claim for a wife, request any officer of the Social Security Department to make a written report to the Court on the means, earning capacity and economic circumstances of any party to the proceedings and on any matter relevant thereto. The Court may call witnesses pursuant to s. 10 and may appoint any counsel or solicitor to assist it. If the claim for maintenance of the child is ooupled with a claim for its custody, reference to a conciliator may be required under s. 15 (2).

Since the proceedings are not criminal, s. 114 of the Act will apply to them (as is the case with a claim for a wife), so that the Court may receive any evidence it thinks fit, whether otherwise admissible in a Court of law or not. By virtue of s. 115, questions of ,fact will be decided on a balance of probabilities, as is also the case with a claim for a wife.

Miscellaneous Points Part VII of the 1968 Act is devoted to the

registration of maintenance agreements. Con- siderations of space preclude full treatment of this topic, but it should be noted that, by s. 54 (1) (c), any written agreement made between any person entitled under Part IV of the Act to apply for a maintenance order in respect of a child and any person against whom that order may be made and providing for the periodical payment by the latter of sums of money towards the child’s maintenance, is registrable in any Magistrate’s Court office. Section 58, it should be noted, restricts the enforcement of agreements in respect of children over sixteen; hence the content of this section will require careful note.

Attention is drawn also to s. 77, which em- powers the Court to niake interim orders for maintenance in appropriate circumstances. By virtue of s. 83, security for maintenance for a child may be ordered. By s. 132 (1) (a), the 1968 Act will apply to all maintenance orders made under the Destitute Persons Act 1910 and any variation thereof under the 1910 Act as if they had been made and varied under the new Act. Section 132 (1) (d) of the new Act makes the new Act apply to all maintenance agreements

registered under the 1910 Act and any variation made under it as if they had been properly registered and varied under the 1968 Act.

Variation of the place of payment is governed by s. 84 and the circumstances in which an order may be discharged, varied or suspended are to be found in s. 85. Particular note should be taken of the point in s. 8% that the making of

a final order for maintenance under Part VI or Part VII (which is devoted, inter alia, to the maintenance of children) of the Matrimonial Proceedings Act 1963 in respect of the same parties serves to make a maintenance order under this Act or the 1910 Act cease to have effect.

P. R. H. WEBB.

EXTRADITION-AN ANSWER TO HIJACKING

The Tokyo Convention of 1963 “on offences and certain other acts committed on board aircraft” has been ratified by a number of States, including the United Kingdom; it is incorporated into law by the Tokyo Convention Act 1967 which came into operation on 1 April 1968. Among other things, the Act of 1967 applies s. 16 of the Extradition Act 1870 to criminal offences committed by a foreign national on board an aircraft registered abroad which lands in the United Kingdom, as that provision already applied to offences on board a foreign ship entering a British port. Accordingly a person responsible for an offence on board an aircraft may be extradited from the United Kingdom under the provisions of the Act of 1870, just as he might be extradited if he committed an offence in another country and subsequently made his escape to the United Kingdom by air. The Act of 1967 is thus of considerable relevance to the apparently growing problem of aircraft “hijacking”. For hi-jacking will of course continue as long as there are countries that either have not ratified the Tokyo Convention or have no comparable extradition arrangements-however promptly they may deal with the return of hijacked planes and their passengers to their countries of origin.

Even in the United Kingdom, however, as a result of applying the Extradition Act of 1870 to crimes committed on board aircraft, in implementation of the Tokyo Convention, there is an escape clause for “hijackers” in the fact that s. 3 (1) of the Act of 1870 excludes from surrender by the United Kingdom fugitive otienders wanted “for an offence of a political character “. When the Tokyo Convention of 1963 was being drawn up, a proposed provision which would have made the surrender of offenders to whom the Convention applied virtually automatic was opposed by the United Kingdom, among others, because such a provision would, it was said, be in conflict with the principle of “political sanctuary” embodied in

s. 3 (1) of the Act of 1870. We have no wish to see that principle restricted in so far as it applies to those genuinely seeking political asylum in the United Kingdom, but it is not, in our view, right that the advantage of it should be available to anyone who, in order to effect his escape from his own country, even for reasons of a political nature, in the process subjects others to violence or the threat of violence, in order to seize control of an aircraft in flight, thereby gravely endangering the safety of others. Those who commit offences of this nature should without exception be returned to their own country, or to any other country having jurisdiction to deal with such offences, as the country of registration of the hijacked aircraft. Indeed this seems to be precisely

*what the Tokyo Convention was intended to achieve, and all that it was intended to achieve, in this context, concerned as it is with “offences * . . committed on board aircraft”, and we cannot see how, once such an offence has been committed by a hijacker, the provisions of the Convention can be ousted by considerations related to offences “of a political character” not committed on board aircraft at all.

All this, admittedly, does not apply to a country that has made no relevant provision for extradition at all. As a result, last week’s resolution of the World Peace through Law Conference in Bangkok, calling on all countries to make effective provision for the extradition of aircraft hijackers, may, as The Times recently suggested, have to be supported by some political sanction, such as denying membership of international civil aviation society to countries that (in the words of the Bangkok resolution) “aid or comfort” desperados of the air by giving (or not denying) them asylum. It was after all because membership of the “maritime club” was long ago made conditional on compliance with its rules that maritime law today enjoys such general acceptance: The New Law Journal.


MR PENNYFEATHER By Scilice t

Summoned by Nita our pretty inter-corn service, she in a maxima-mini, I hurried to the room of Mr Pennyfeather.

Melinda Rive1 who lived in Chelsea and visited her stud farm at fairly ,regular intervals. Mr Peabody commented that the lady must be possessed of considerable wealth.

His or Hers

There I found a seated gentleman whose physique I guessed as above six feet when standing but now somewhat crouching in his chair, his hat clamped between his legs. Indeed a nervous client who obviously needed our services. Mr Pennyfeather made introdudtions whereby our client learned that I was Mr Brunt, ti Pennyfeather’s partner, and I became aware that the other was Mr Thomas Peabody of Green Grass End, Puddleforth, Oxfordshire.

,Stated Mr Pennyfeather, “my partner Brunt can be of great help in our difficulty. He has selected the last three Derby winners.”

“Two,” I corrected. “Hogshead ran second. I’ “Nevertheless a fine record, Brunt, but here

is our problem presented by our Mr Peabody. Mr Peabody, may I weary you to state the facts once more in the presence of Mr Brunt. You see, in the offices of law, you obtain the learning of two for the price of one. Pray continue, Mr Peabodv.”

And “indeed the shy, halting recital of Mr Peabody was of arresting interest.

It seemed that he farmed a piggery-he did give the activity another name which I forget- at Puddleforth which was some four miles from Abingdon. After the War, he succeeded in leasing some ten acres of lush land where he had established his pig farm. He had at first enjoyed some considerable prosperity but in latter years it appeared to him that appetite interest in ham and bacon had waned with the result of constantly reducing income. Now a widower with four sons all under the age of twelve, it had not been easy to obtain a living from the porkers, sows and weaners who were the inhabitants of his meagre acreage.

Adjacent to Mr Peabody’s piggery was a well set out stud farm known as the Paternoster Stud and here one of England’s most famous stallions resided and performed-his name Diogenes. He had sired many winners of classics and I happened to know that he served only a limited number of mares and even these had to have equine blue blood to attain the honour of Diogenes’ favours. Mr Peabody went on to say that Paternoster Stud was owned by a Miss

Mr Peabody owned a well bred mare named Tisket. As a yearling, she had injured a fetlock and for this reason she had never raced. The breeder of Tisket-an old army pal-had given Tisket to our itlient and for some eight years she had resided in her own paddock and had become a warm favourit,e with the four young Peabodys.

Earlier in the year, our client had noticed that Tisket was putting on some considerable weight but this he attributed to a middle aged spread. Imagine therefore his astonishment when some four months prior to his visit to our office, excited cries from, his song hurried Mr Peabody to the paddock. Crouched on the

90 !I!EE NEW ZEALAND LAW JOURNAL 3 Hnrch 1970

ground and already possessing alert, eyes, was a handsome chestnut foal which later after a brief inspection turned out to be a colt. Proudly looking down on the foal was Tisket and she swished her tail with justifiable pride.

“There’s no doubt that Diogenes is the sire,” admitted ti Peabody. “Dead spit of the old man, the colt, is. Chestnut, white star dead on centre, two white socks.”

“Where’s the problem?” 1 a.sked. Mr Pennyfeather pushed a letter towards me. “There’s the problem.” he said groping for a

cheroot from his humidor. I read the letter. It was from Darby, Newbury

and Ascot, a well-known firm of solicitors in Regent Street. Briefly it stated that acting on behalf of Miss Melinda Rive& they were instructed to demand that the colt by Diogenes out of Tisket be handed over to his rightful owner, their client Miss Rivel, within ten days-or else.

“Who owns the colt, Brunt-or the get- if I may use the old Anglo-Saxon term?” murmured Mr Pennyfeather.

“Did Diogenes jump the fence and-er--2” “No evidence of that,” dismissed our client. “Then did Tisket somehow wander on to your

neighbour’s land?” “NO evidence.” Mr Pennyfeather’s eyes twinkled. “Is it rape or seduction, eh, Brunt?” “Not relevant, sir,” I murmured. The long fingers of Mr Pennyfeather drummed

on his desk. “Could one plead immaculate conception,

Brunt?” I did not answer. It did occur to me that my

partner was making light of a serious situation. But then he had never been seriously interested in the Sport of Kings since, as he told me-an ill advised wager on the 1924 Grand National had cost him two pounds when Old Salt, the favourite, had stumbled over the Iast hurdle when holding a five length lead, bringing the aged gelding to grief at the cost of his jockey’s collar bone.

“You could get over it by paying the stud fee,” I suggested.

“Two thousand guineas! You must be joking. I couldn’t raise two hundred quid. I would have sent Tisket to stud years ago had I had the service fee.”

“Two thousand guineas!” cried my partner. “Why that’s equine prostitution.”

“Have you met Miss Rivel?” I asked. “No,” admitted Mr Peabody. “But I’ve seen

her several times. Handsome woman and looks pleai3ant.”

“Perhaps if you called on her, you could come to some arrangement.”

“I don’t think so. One of her stud grooms has told me that she wants the colt more than anything.”

“A hen belonging to my neighbour strays on to my land,” I mused, “and lays an egg. Who owns the egg, my neighbour or I!”

“In this case,” twinkled Mr Pennyfeather, “a stallion laid his egg and----” he coughed in embarrassment. “Well Brunt, is this not a case for Drubble? In the meantime writ$e to Diogenes’ solicitors denying liability.

Mr Drubble Q.C. was not very encouraging. “I wouldn’t like to fight this one, Rrunt.

Custody of a colt oh! While the Courts look with sympathy at the claim of a mother for her child, I do not think that the same would hold good for the mother’s claim for her colt. But nevertheless I think Miss Rive1 should pay something for the use of your client’s mare. You know the conundrum of the Leghorn that lays an egg on a neighbour’s land-!”

“Yes,” I said rising. A week later, a sad eyed Mr Peabody brought

a writ into my office. “I can’t afford to fight,” he said sadly. “I’m

going to see Miss Rive1 and tell her she can have the colt.”

“It might be wise,” I concurred with sincere and deep regret.

A few days later I received a telephone call from Mr Peabody. His voice was joyful.

“Mr Brunt, I’ve settled the case with Miss Rivel.”

“I’m delighted. How?” “We are going to race the colt in partnership.” “Now that’s a fine compromise,” I congratu-

lated him. Time goes quickly and the affair of Peabody

and Rive1 had been shrouded in my memory because of many other problems which had demanded my concentration.

Thus, some two years later when a voice on the telephone told me it was Tom Peabody, it took me a few seonds to recall who he was.

“Mr Brunt, our colt has his first start on Saturday. The first race at Newbury. Our trainer says he’ll bolt in. Just thought I’d let you know.”

“Many thanks, Mr Peabody. What did you name him?”

“Side Issue,” he murmured and I think he giggled.

I duly reported all of that to ti Pennyfeather and mentioned that we acted for a reputable bookmaker in Maida Vale. He handed me a five pound note.


“It had better win,” he warned, his eyes twinkling.

Later I telephoned our bookmaker and set a wager of ten pounds on Side Issue.

Our bookmaker client said, “glad to do business Mr Brunt, but if the nag loses, don’t put a tenner on my next bill.”

Side Issue won by four lengths at twelve-to- one.

A month later Mr Peabody telephoned me again.

“Mr Brunt, by any chance will you and Mr Pennyfeather be in Abingdon next Wednesday? ”

“Not that I can think of. Why?” He coughed. “Melinda-that, is Miss Rive1 and I are being

married.” “Congratulations,” I said. And this I duly reported to my partner. “Well, well,” he said. “All parties have

displayed a considerable degree of horse sense.” (Mr Brunt’s final note. I have just read in this

morning’s paper that Side Issue raced by Mr and Mrs Thomas Peabody won the Derby equalling the track record.)

CONCEALED FRAUD FOR THE PURPOSES OF THE LIMITATION ACT

For the purposes of the Limitation Act in the case of concealed fraud or mistake, the right of action is deemed to accrue at the time when such fraud or mistake is or might with reasonable diligence have been discovered: Cnrrow’s Real Property, 5th ed. 311.

In Baker (G.L.) Ltd. v. Medway Building and Xupplies Ltd. [1958] 3 All E.R. 540; [1958] 1 W.L.R. 1216, a fraudulent agent named Titley paid a large sum of his principal’s-the plaintiff’s -money into his own private business account and thereafter paid the defendant sums of 23,268 and g2,893 odd by cheques drawn on that account. The plaintiff having discovered the fraud sued the defendant to recover those moneys. Danckwerts J. decided that the defendant was personally liable on a direct claim in equity not based on the doctrine of tracing, but on the principle of In re Diplock [1948] 2 All E.R. 318; [1948] Ch. 465, affirmed in the House of Lords [1950] 2 All E.R. 1137; [1951] A.C. 251, as extended by a dictum of Denning J. in Nelson v. Larlwlt [1948] 1 K.B. 339.

In the recent case of Eddis v. Chichester Constable [1969] 1 All E.R. 546; [1969] 1 W.L.R. 385, affirmed by the Court of Appeal [1969] 2 All E.R. 912; [1969] 3 W.L.R. 48, an attempt was made to get a ruling from the Court that Baker’s case was wrongly decided and, in the alternative, it was submitted that the decision did not apply to an action for conversion.

The facts were as follows. Among the heirlooms of a settlement was a picture which the tenant for life (since deceased) sold in 1951 to the second or third defendant who, between 1950 and 1961 sold the painting to the fourth defendant, who in turn sold it to an American art gallery. By

their writ dated March 1966, the plaintiff trustees claimed damages against the first defendant (as personal representative of the tenant for life) for breach of trust in selling the painting without their consent, and damages against the second, third and fourth for conversion of the painting. All four defendants denied the allegations and contended that in any event the plaintiff’s cause of action was statute-barred. The trustees alleged against the first defendant that the sale by the tenant for life was a fraudulent breach of trust amounting to fraudulent concealment of the plaintiff’s cause of action; as against the other defendants, that one, B. had acted as agent of the second and third defendants and ought to have known that the painting was not the absolute property of the tenant for life; and, further that the defendants ought to have known that the sale by him was a fraudulent breach of trust.

The trouble thus began by the tenant for life selling the picture as if she were the absolute owner thereof. The Court would not hold that Baker’s case was wrongly decided. Did then s. 26 of the Limitation Act 1939 (U.K.) apply to a conversion? The answer is in the affirmative. Did it apply to a claim in detinue? The answer is again in the affirmative.

Goff J. who heard the Ed&s v. Chichester Constable case said “If the decision in Baker v. Medway is right (and he later held that it was) and if it applies to the present case, a serious difficulty presents itself under the proviso to s. 26. That is intended to protect a bona fide purchaser for value without notice, but it would seem that where there has been concealed fraud such a purchaser who still holds the

92 THE NEW ZEALAND LAW JOURNAL 3 March 1970

property could be sued in damages for conversion and would have no answer and certainly that would be so if he had parted with it.”

So far as it is relevant s. 26 of the Act reads: “Where, in the case of any action for which a period of limitation is prescribed by this Act, either (a) the action is based on the fraud of the defendant or his agent or of any person through whom he claims or his agent, or (b) the right of action is concealed by the fraud of any such person as aforesaid . . . the period of limitation shall not begin to run until the plaintiff has discovered the fraud . . . or could with reasonable diligence have discovered it: Provided that nothing in this section shall enable any action to be brought to recover, or enforce any charge against or set aside any transaction affecting any property which . . . (1) in the case of fraud,

has been purchased for valuable wnsideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed. . . .”

It would appear that in equity the case would have been decided with the same result; there were two rules. First, that the defendant would not be allowed to take advantage of his own fraud. Secondly, there was the rule that no person however innocent would be allowed to keep what he had received under a title derived through the fraud of another. The basis of this equity was his seeking to hold that which he knew it was unconscionable for him to keep: In re McCalluna [1901] 1 Ch. 143, 150.

E. C. ADAMS.

CORRESPONDENCE

Domestic Proceedings Sir,

I have read the new Act and some of the comments to which it has given rise. I am not sanguine that the new Act will do more for husbands, wives and children than the old law.

It has been my experience over 50 years that our Magistrates have always striven to reconcile the parties. I have known them to break into cases-being fought, with requests that the parties attend them in Chambers and the parties have been brought together again. Our Magistrates often have made maintenance orders but refused separation orders so that the parties may have time in which to try out living alone and to come together again.

Under the legislation of the past, we practitioners have been compelled to try conciliation. The nndoubted fact is that the Magistrates, conciliators and lawyers have been brought in too late. In cases where there are children, the mothers usually suffer in silence until the situation becomes intolerable. It has been my practice to ask the question “Has the marriage broken down?” and in cases where I have advised the Magistrates that conciliation is hopeless, I have never been chided by the Magistrates by so advising.

Underlying the new Act there is the illusion that this or that ought to be done but, while human nature remains what it is, there will be unsuitable marriages and husbands will -drink and diink too much and both husbands and

wives will find married life intolerable and will adopt one method or another to rid themselves of the tie. A recent examination of the position in Australia revealed that the number of deserted wives there is about 25,000.

The demagogues who sponsor this type of legislation are always happily married people but no such people have any conception of the blow that a man or woman suffers when he or she gets to know that his or her spouse is bedding down with another of the opposite sex. It is rare, indeed, for forgiveness to be offered in such cases.

It is significant that Britain, so conservative in the past, has now come to the conclusion that not adultery, not cruelty, shall be the deciding factor in divorces, but only whether the marriage has broken down or not.

I am, et.c., L. A. TAYLOB.

JUDICIAL APPOINTMENTS

Mr Justice Haslam has been appointed an additional Judge of the Court of Appeal during the absenoe of Mr Justice McCarthy on Royal Commission business.

The Hon. A. L. Tompkins has been appointed a temporary Judge of the Supreme Court for a further term.

Phe New de&bnd~Law Journut 3 March 1970 TOWN AND COWTRY

Sherratt v. Waimairi County

Special Town and Country Planning Appeal Board. Christchurch. 1969. 16 July.

Conditional use-Application to use land for motel- Zoned rural--Cobnsent refeed by Council-Proximity to airport-Appeal-Town and Country Planning Act 1953, aa. 28~ (3~), 280 (Town and Country Planning Amendment Act 1968, 88. 7, 8).

Appeal under s. 28~ (1) of the Act.

Woodward, for the appellant. Ryan, for the respondent. De GoJdi, for the objector.

The decision of the Board was delivered by LUXFORD (Chairman). This is an appeal against the

refusal of the respondent to consent to the condit,ional use of portion of the appellant’s land at 447 Memorial Avenue, Christchurch, to enable a motel to be established thereon. The total area of the appeIlant’s land is five acres 0.2 perches; the frontage of the land to Memorial Avenue is approximately 264 feet and the depth of the rectangular block is approximately 824 feet. The exact boundaries of the portion proposed to be used as the site of the motel have not been properly defined but it will be the north-west portion of the land with a frontage of approximat,ely 148 feet to Memorial Avenue and its back boundary is to be in the vicinity of the dry drain shown on the survey plan produced at the hearing of the appeal.

The proposed development includes the building of twelve motel units of high quality construction with high quality equipment, and the landscaping of the open areas of the site. The proposed site is in a rural zone in which motels are a conditional use, consent to which was refused by the respondent on the following grounds:

1. The encroachment of any development of a residential nature towards the Christchurch Inter- national Airport should not be permitted because of the noise and safety factors and the possibility of such encroachment being detrimental to the future operation of the airport.

2. The site is located on a stretch of Memorial Avenue which is comparatively free from development which would be detrimental to the flow of t,raffic and as the Avenue is an arterial road, as well as the main access road to the airport, any further development such as that proposed, would lower the service of the road.

3. Any approval of any such development on Mem- orial Avenue would conflict with the memorial significance of the Avenue and could also give rise to further applications of similar developments of a commercial nature.

4. The site lies within the rural area as defined by the Christchurch Regional Planning Scheme 1959 and the establishment of motels on the site would tend to promote close settlement in the area which would be in conflict with that scheme.

The Board dealt with the necessity of preventing non- conforming urban development in a rural area between the urban fence and the Christchurch International Airport in its decision in the appeal by the Mikster of Works v. Waimairi County (Appeal No. 640/68) delivered on 30 April 1969. In that decision the Board held that in the particular locality a non-conforming use of land should not be granted except in special circumstances for reasons similar to the first ground

PLANNING APPEALS 93

upon which the respondent refused the consent applied for by the appellant in the present appeal.

In the present appeal the proposed use of the land is a conditional use in the rural zone in which it is located, and one of the reasons for using the land for a motel is its close proximity to the airport, because it will be better able to cater for travellers arriving or departing by air who require accommodation in such a location. The evidence shows that this is the modern trend, and is being catered for where the air passenger traffic is heavy. In point of fact the same thing applied in the days when the railways provided the principal means of inland travel as is seen by the number of hotels which were sited close to a railway station; indeed, in some overseas countries hotel accommodation was provided at the railway stations. The evidence also shows that the highest grade accommodation in Christchurch is that provided by two hotels in close proximity to the international airport.

The safety faator is important, especially so far as the flight paths for aircraft taking off from or landing at the airport are concerned. The evidence shows that the edge of east-west or cross-wind flight path is within eight chains from the site of the proposed motel, but it also shows t’hat that flight path is seldom used.

In 1966 five percent of the flights landing at and less than one percent of those taking off from the airport used that flight path. Safety and noise may be factors relevant to the suitability of some sites but not to the suitability of the site of a motel where the safety factor is so slight, and the motel is to cater for travellers who want accommodation close to the airport.

In an application for consent to a conditional use, the local authority in the first instance, and an Appeal Board on appeal is required by s. 28~ (3A) to have regard first to the suitability of the site for proposed use by reference to the district scheme, and secondly, the likely effect of the proposed use on the existing and foreseeable amenities of the neighbourhood and on the health, safety, convenience and economic and general welfare of t,he inhabitants of the district.

These mandatory provisions came into force on 25 November 1968, but t,heir subject-matter, particularly the suitability of the site for the proposed purpose, has always been a relevant consideration.

The Board finds: (a) The proposed site is suitable within the meaning

of s. 28~ (3A). (b) The likely effect of the proposed use will not be

detrimental to any of the matters referred to or described in s. 28~ (3~) (b).

It was contended on behalf of the respondent, based on the evidence of the regional planning officer, that a motel is undesirable in a rural area, if it is sited close to an urban area, but not otherwise, and that one of the reasons for refusing the consent applied for, is the close proximity of the proposed site to the International Airport.

Tho suitability of a motel site should not, in the opinion of the Board, be determined by the policy of the local authority which has not been incorporated in the relevant ordinance which provides that motels are a conditional use in a rural zone. The whole of the surrounding circumstances should be taken into consideration.

The Board, having taken into consideration the whole of those circumstances, has come to the conclusion that the appeal should be allowed subject to the conditions set, out in t,he schedule heret’o, and it, in allowed acoord- ingly.

Appeal allowed.

94 Tom AND COUNTRY

SCHEDULE 1. The boundaries of the &rea of the proposed site

to be approved by the County Engineer before the consent becomes absolute.

2. The siting of the motel units and car parking facilities and the landscaping of grounds to be approved by the said Engineer.

3. Le8ve reserved to apply for directions in c&se of any dispute on these conditions.

G.U.S. Properties Limited o. Christchurch City

Special Town and Country Planning Appeal Board. Christchurch. 1969. 10 July.

Speci$ed departure-Application to we land for supermarket, shop8 and parkirtg-Zoned partly commercial, partly residentiaCAppl;cation prior to notice of review of operative district scheme-Heard subsequent to such notice-Public interest-Town and Country Planning Act 1953, 88. JOB, 35.

Appeal under s. 35 (6) of the Act.

Mahon and HadJield, for the eppellant. Hearn, for the respondent. Barrer, for the estate of H. M. French. Kerr, for all other objectors.

The judgment of the Board was delivered by LUXFORD (Chairman). This is an appeal against the

refusal of the respondent to consent to a specified departure from the City’s operative district scheme to enable the appellant to erect on land presently to be described, buildings to be used &s retail shops including a supermarket, and also to use part of the land to provide car parking facilities for persons transacting business in the proposed buildings.

The land is situated at the north-west side of Wilson’s Road at the intersection of that reed with Gamblin’s Road and comprises five separate lots having an aggregate erea of 1 acre 1 rood 24.1 perches. Included in this land is & rectangular area of 2 roods 13.7 perches et the road intersection, which is zoned in the operative district scheme “commercial A”. The two sides of this &ree without road frontages adjoin the balance of the “L” shaped land which is zoned “residential 1” in the operative district scheme.

The appellant proposes to use the whole of the Wil- son’s Road frontage of approximately 240 feet and 64 feet of the Gamblin’s Reed frontage for the car parking facilities. The area reserved for this purpose will accommodate 75 cars, and will lie between the Wilson’s Road frontage and the buildings proposed to be erected. A servioe y&rd giving access from Gamblin’s Road to the back of the proposed buildings, having a width of approximately 18 feet, has been provided.

A question which it is not necessary for the Board to decide w&s raised at the hearing. It relates t.o the effect of the review of the City’s operetive scheme.

The application for consent was filed on 9 September 1968; public notice of a proposed new district scheme consequent upon the review of the operative district scheme w&s published on 5 and 12 November 1968; the application for consent to the specified departure w&s heard on 3 December 1968: and notice of the resolution was sent to the appellent by notice dated 13 January 1969.

The question reised w&s whether a further application under s. 30~ was also necessary. Mr Mahon electsed to stand or fall by the application under s. 35, claiming

The New ii%x&md Laiu hwnd tiNMQ APPEALS 3 March 1970

that s. 30B h&d no application in the circumstances disclosed by the dates to which reference hes just been made. That cleim, of course, would not be velid if the Board’s decision in Burton v. Auckland City (1968) 3 N.Z.T.C.P.A. 130, is correctly decided. That decision, however, also held that where the proposed ohenge of use is contrary to both the operative district scheme 8nd the proposed new scheme, consent under both s. 303 and s. 35 are necesssry. The ctppellant is entitled to apply for consent under s. 36 (whioh is m&de to the local authority in the first instance). and if necessery to make &n clpplication for consent under s. 30B (which is to the Appeal Board in the fist instance). Consequently, no objection may be t&ken to the present application or the 8ppe81 against the respondent’s refusal to grant the applic&tion, based on the appellant’s omission to make an applicition under s. 30~.

The matters for consideration are those referred to in 8. 35 (2), (4).

The Board is satisfied that it is not precluded from allowing the appeal by the provisions of s. 36 (2); therefore, in ooming to & decision whioh results in the gr&nting br refusal of the consent &pplied for by the appellant, “the public interest shall be the paramount consideration.” (See s. 36 (4).)

The expression “public interest” includes “&ll matters which c&n in any ciroumst8noes be of public interest.” It would be difficult, if not impossible, to compile 8 list of all the matters which m8y be of public interest within the meaning of the definition, nor would such & list be of &ny assistance. The degree to which any such metter is contrary to the public interest or to which it promotes the public interest, or whether any particular matter affects the public interest at all, depends or may depend on the surrounding circumstances.

In some o&ses, as in Amalgamated B&k and Pipe Company Ltd. v. Hutt County (1968) 3 N.Z.T.C.P.A. 122, there may be features associated with & specified departure which promote the public interest and others which are contrary to thet interest. When that happens, as it does in the present o&se, the one has to be weighed ag&inst the other so that the Board may determine whether the public interest will be best served by consenting to the departure or by refusing such consent.

The following mrstters relevant to public interest (or contended so to be) h&ve been considered by the Bo&rd:

Public need, the evidence establishes that the modern supermarket provides 8n efficient service to house- holders by making available for retail sale under one roof and on a ground floor 811 the goods required for daily use or consumption in & household.

In addition, shoppers who use their c8rs to t8ke them to 8 supermarket,, find parking facilities available for them when they 8rrnve. Indeed, adequacy of parking facilities is essential for the successful operation of a modern supermarket. The Board is satisfied therefore, that if the proposed supermarket is established consequent upon consent being given to the specified departure applied for, it will be 8 f?n&ncial su(3uess.

The financial success, however, is dependent first upon the 8ppellant having purchased most of the land necessary for establishing the supermarket while it w&s zoned residential 1, and thereby reduced its capital expenditure; and secondly upon obtaining consent to the specified departure applied for.

The relevancy of this to the question of “public interest” will now be dealt with.

The evidence esteblishes that there is sufficient lasld in the commercial zone on the opposite side of the road to the appellant’s lend, to enable the appellant to

The New Zmhd tnZw Jownd 3 .March 1970 Tom AND Commw PLANNDTU-APPBALS 96

establish a supermarket of the kind proposed. The appellant’s reason for not buying that land is that the price required ($100,000) against the $49,260 paid for the land the subject of the application, would involve a capital expenditure that would render the proposed supermarket business uneconomio. The director called as a witness in support of the app8a1, stated that in order to establish a modern supermarket on a profitable basis in a suburban locality, it is necessary, generally speaking, to obtain a site in a residential zone, on account of the high price that is payable for land in a commercial zona.

The Board assumes? in the absence of evidence to the contrary, that this is a correct statement. That assumption, however, does not assist the appellant because, in the opinion of the Board, it would be contrary to the public interest to grant the dispensation applied for to enable the appellant to establish a business on a profitable basis, which, without the dispensation would not be possible, and which would be in competition with other businesses being carried on on land in a commercial zone which was priced too highly for the appellant to buy.

The benefit the establishment of ths supermarket may confer upon the public is insufficient, in the Board’s view, to outweigh the adversa effects of granting the dispensation.

The Board agrees that the establishment of a profitable business which provides a useful service to a large section of the general public is in the public interest, but the weight to be given to that factor for the purposes of considering tha public interest depends upon all the surrounding circumstances. In the present case, the appellant contended that the insufficiency of. retail shopping facilities in the locality sstablishes a need for the supermarket sufficient to justify the appeal being allowed.

It is true that according to a formula adopted by the respondent for determining sufficiency of retail shopping facilities, there is a need for increasing the area in which those facilities are a predominant use. That is made clear by Mr Williams, the respondent’s staff planning officer, who said-‘*Although the Council has provided for extension of the existing shopping zone, the size of the proposed development is such as to be in excess of that envisaged by the Council as an extension to existing retail faoilities.”

In the opinion of the Board, it would be contrary to the public interest to interfere in the present proceedings with the respondent carrying out its functions under the Town and Country Planning Aot. The respondent, having ascertained that there is such a shortage, has taken the proper steps to have that remedied. Whether the proposed increased area is adequate or suitably sited, are matt8rs the appellant can have determined, or could have had determined, if it had lodged an objection, to the proposed zoning of its land, -

Another submission made by Mr Mahon is that the Board should have regard to part of the appellant’s land beine zoned commercial A in the onerative district scheme. ‘%he Board is concerned only v&h the application so far as it relates to the land that is not zoned commercial A, and not with the uses to which the land so zoned may be put without any consent being obtained.

The Board has come to the conclusion that having regard to the circumstances to which reference has been made, the public interest will best be served by disallowing the appeal.

The appeal is disallowed accordingly. Appeal dismissed.

National Trading Company of New Zealand Limited wu. Rotorua City

Special Town and Country Planning Appeal Board. Rotorua. 1969. 9 June.

SpecQU departure-Application to we land for supermarket--Most of land zoned residential+-Ex&&g shop on small area zoned commercial-Public need- Town and Country Planning Act 1953, s. 35.

Appeal under s. 35 of the Act.

Temm, for the appellant. Dav?/s and Henderson, for the respondent., Dennett and O’Sullivan, for the objectors.

The judgment of the Board was deliverad by LUXFORD (Chairman). This is an appeal against the

decision of the respondent by which it refused consent to a specified departure from the provisions of the operative district scheme of the City of Rotorua, to enable the appellant to use an ar8a of land containing 1 acre 22 perches (all of which except forty perches is in a residential A zone) for the purpose of establishing and conducting the business of a supermarket thereon.

The appellant has conditionally agreed to purchase this land. It is “L” shaped with a frontage of approximately 250 feet to Ranolf Street, 144 feet to Pererika Street, and 125 feet to King Street. Ranolf Street and King Street are parallel atreats. The building in which the business is to be carried on will have a floor space of 14,000 square feet and will be sited close to the south boundary of the land and will face Ranolf Street. The width of the building will be 117 feet which means that the north side will be approximately 126 feet from the corner of Ranolf and Pererika Streets. The whole of the land not to be occupied by the building is to be used for providing 82 customer parking spaces and lanes for vehioles servicing the supermarket, with access only to and from Pererike and King Streets.

The 40 perches of land already referred to are zoned commercial A, and is situated in the north-east Corner of the block. That is to say, its north boundary is Pererika Street, and its east boundary is Ranolf Street. A shop stands on this land, and bar been used for the retail sale of groceries for approximately 50 years.

The present owner and occupier of the shop has conditionally agreed to sell it to the appellant. The zoning of the land as commercial A was on account of its long use for a commercial purpose, although the statutory provisions relating to existing uses would have permitted the lawful continuance of the grooery business, without this special zoning.

It is common ground that had the appellant so desired it could lawfully have developed the 40 perch8s ae a supermarket, but only of the kind which the Board was informed is known as a “supermini”. The bulk provisions of the district scheme allow a ground floor er0a of 5,176 square feet on a site of this size. That, however, is not relevant to the present appeal. because the appellant is interested only in the erection of a building with E ground floor space of 14,000 square feet with sticient surrounding land to provide customer parking facilities, without which a supermarket of the kind proposed cannot operata successfully.

Much of the evidence adduced in support of the appeal was directed to prove that the establishment of a supermarket supplies a public need, and therefore it is in the public interest that a supermarket should

96

!i%e 1\Tew ieaiana fraw .3ourd TOWN AND COUNTRY PLANNING APPEALS 3 March 1970

be allowed to operate where it is able to do so successfully. There can be no doubt that it is a convenience for a householder to be able to purchase all his household requirements in one shop instead of having to go to a number of shops such as the grocer, the baker, the butcher, the seed and plant shop, the hardware shop and the like. The same may be said of any other form of commercial activity which like the modern supermarket provides a useful and efficient service to a large range of people or a large section of the general public, but that does not, per se, justify a local authority consenting to a specified departure from the provisions of its operative or proposed district scheme to enable such an activity to be carried on in a residential A ZOIlCl.

The provisions of s. 35 of the Act, as the Board has often pointed out, are a complete code of what a local authority, in the first instance, and the Appeal Board on appeal, must have regard to when determining whether or not such a departure may be permitted.

In the present case the Board is satisfied that the departure sought will have little significance beyond the immediate vicinity of the land in question, and therefore the prohibition against granting the consent imposed by subs. (2) (a) of s. 35 does not apply. Therefore, the sole question to be answered is whether the public interest will be better served by allowing the appeal or by disallowing it. That is a question of fact.

The evidence adduced by the appellant merely establishes that the proposed supermarket will be an economic success because the parking facilities available on the site will assure the patronage of an adequate percentage of the large volume of passing traffic. That, however, does not, in the opinion of the Board, establish a public need of the kind necessary to justify the consent the appellant seeks. Such a need may exist if refusal of consent would adversely affect the residents in a residential zone to a greater degree than their being deprived of the amenity of living in a zone undisturbed by any commercial activity being carried on therein. Such a need may also exist if it is of such importance to the general public or a large section of the general publics that the adverse affect of a refusal of the departure outweighs all other considerations.

In the present case the evidence relating to the number of supermarkets already operating in commercial zones wifihin the City of Rotorua or in the course of construction negatives public need of a nature that justifies this appeal being allowed.

For these reasons the Board has come to the conclusion that the public interest will be better served by disallowing the appeal, and it is dissllowed accordingly.

Appeal dismissed.

Wakelin w. Tauranga County Special Town and Country Planning Appeal Board. Tauranga. 1969. 19 July.

Specified departure-Subdivision of rural land- Not conforming with operative di8trict scheme a8 to rninimuna area of &s-Town and Courbtry Planning

Act 1953, 8. 38 (8).

Appeal under s. 38 (8) of the Act.

PattW8On, for the sppell8nb

Morgan, for the respondent.

The judgment of the Board was delivered by LUXFORD (Chairman). This is an appeal under s.

38 (8) against the refusal of the respondent to approve the scheme plan of a subdivision of the appellant’s land. With the consent of both parties and at their request, the appeal has been treated as an appeal against the refusal to consent to a specified departure from the provisions of the operative district scheme relating to the minimum area of lots in a subdivision of rural land.

The appellant is the owner of 10 acres 1 rood 27 perches having a frontage to Minden Road of approximately 134 chains. The scheme plan creates 7 lots. Six of these lots have full road frontages, and one (lot 4) has a road frontage of 22 links which is the entrance to a driveway which gives the lot road access. Lot 4 contains 7 acres 11 perches, the other six lots contain in the aggregate 3 acres 1 rood 16 perches.

The land is situated about 9 miles from Tauranga City and is about 500 feet above sea level. Apart from lot 4, none of the land is suitable for farming. The six lots, however, are so situated that “round the compass” views can be had from some of them, and from the other “near round the compass” views.

The Members of the Board were asked to inspect the property, and, having done so, felt that the public interest may best be served if the respondent acquired the land as a public reserve, and thereby preserved for the people of New Zealand in general and of Tauranga and its environs in particular, an area of land from which can be seen a panorama which equals, if not, surpasses the panorama seen from the top of Rangitoto or of any of Auckland’s volcanic hills,

Be that as it may. The jurisdiction of the Board is limited to determining whether this appeal, having regard to the evidence adduced, should be allowed or disallowed.

It is common ground between the parties that the only practical use that can be made of the land com- prising the six lots with full road frontages, is residential. The respondent, however, contends, that the proposed subdivision is premature and that the scheme plan is not in accord with good planning practice.

The Board was impressed with the evidence given by Mr Bagnall, an experienced town planning consul- tant, in support of the respondent’s contention. This witness, after agreeing that the Minden area or locality is far better suited to good quality home sites than anything else, said:

“There are many parts of New Zealand where a potential land asset of this kind has been prematurely exploited; parts of Titirangi are an excellent example. Low value cottages on minimum-sized lots, bad roads, and no residential services are the legacy which both the Council and its ratepayers have to bear as the price of premature fringe subdivisions.” Referring to the present application, Mr Bagnall

said that it is unrelated to any general development policy for the locality; the lot sizes proposed are inappropriate to a high class residential locality situated in the country; and the subdivision appears seriously to compromise the later development of the back land.

The Board accepts these comments on the scheme plan of the proposed subdivision, as a correct summation of its probable effect should it be approved. In the opinion of the Board, no approval should be given to any scheme plan that does not make provision for the subdivision of the whole of the appellant’s land into residential lots, but the time for doing that, has not, for the reasons advanced by Mr Bagnall, yet arrived.

The appeal is therefore disallowed. Appeal dismissed.

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