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The New Zealand LAW JOURNAL

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23 JANUARY 1962 No. 1 ____.~_______ __-..--.- __- __ - _~..__ -___

THE JOURNAJrPAST AND PRESENT v

T HIS issue commences a new series of the LAW JOURNAL, changed in size of page and

brought up to date so far as type-face and general lay-out are concerned. Despite the reputed conservatism of the legal profession, it is hoped by the Publishers and by ourselves that these changes will be accepted, and indeed welcomed, by our subscribers. The smaller overall size should make the individual issues easier of handling and reading, while the bound volumes will fit more readily into library shelves of conventional size.

While these changes were under consideration the Publishers a&o thought it desirable to redesign the cover in order to give it a more modern and colourful appearance.

Frankly, all concerned are proud of what has been achieved, and we now place the finished article before our subscribers confident that they will find it a considerable improvement on the old style.

As regards the literary content, the old JOURNAL consisted of 16 pages of the larger size. These are now replaced in the New Series by 24 pages of the smaller size, which has resulted in a small but appreciable increase in the actual area of printed matter.

At a time when such substantial changes are being made it seems appropriate to look back and see how the J~TJRNAL has developed over the years. Our older readers will remember that it was originally published under the title of Butterworth’s Fortnigittl~ &Votes, the ,first issue being dated .3 March 1925. The first editor was Mr C. A. L. Treadwell, then a oom- paratively young practitioner, but now retired. Such first issue consisted of 12 pages, of which five were devoted to fairly full notes of cases recently decided in the Courts. There was one

article on “ Dominion Citizenshin “,: contri- buted by the late Right HonourabG Sir Robert Stout, Chief Justice, a. London Letter by Inner Templar and, under the heading of Bench and Bar, some personal notes including references to the retirement of Mr Justice Hosking and the appointment to the Supreme Court Bench of Mr Justice Ostler and Mr Justice Alpers. The issue concluded with a Digest and Noter- up for Halsbrrry’s Laws of h7ngkwd, then, it’is interesting to recall, still in its first edition,

Comparison with Today By today’s standards those old issues look

archaic but when they are examined it becomes apparent that there has been little real change in style throughout the life of the old series. The major headings were then printed in old English script and more use was made of rules or printed lines. For example, the columns on each page were divided by a rule from top to bottom.

By the publication of Issue No. 2 on 17 March 1925 the size had shrunk to 10 pages, not all of which were free from advertising matter. The Editorial as we know it had yet to appear, but there was one short article and approximately one page of book reviews covering Volume 19 of the English and Empire Digeat, still being published volume by volume, and the seventh edition of Stevens’ Mercantile Law. Succeeding issues varied from 10 to 14 pages, apparently according to the amount of material available.

Leafing through these old volumes one is struck by the fact that the artioles published were generally much shorter than those used at the present time. A similar tendency+ towards increased length exhibits itself in the

,

2 THE NEW ZEALAND LAW JOURN& 23 iJanuary 1962

judgments of the Court of Appeal and the Supreme Court, and raises the question whether the Profession in general, including the Judiciary is becoming more loquacious, or whether the verbiage used in both articles and judgments is the inevitable result of the growing com- plexity of our way of life which causes to be raised increasingly difficult and complicated questions of law and of fact.

Even those of the older generation amongst us are now accustomed to a general increase in the cost of all goods and services, whiEh is taken as a matter of course. This prompted us to look at the annual subscription rate for the Fortnightly Notes which was found to be $2 17s. 6d., as compared with today’s figure of $4 12s. 6d. for the JOURNAL, Having regard to the increased literary content of the JOURNAL and the heavy increases which have taken place since 1925 in salaries and in the cost of printing, paper and postage the increase is much lower in amount than might reasonably have been expected.

Forensic Fables Appear The new magazine followed the even tenor of

its ways with little change until 23 June 1925 when the first Forensic Fable was published. It was called “ The Eminent Common Law Leader and the Promising Equity Junior “, and was republished on 6 June last year at p. 158. These Fables were well received by readers of those days, Not only were they avidly read but they were a frequent topic of discussion amongst members of the profession in their lighter moments..

Shortly afterwards there appeared on the first page of several issues a notice in the following terms :

“ The Editor will be pleased to receive manuscripts of Articles for consideration and any suggestions with regard to the development of the Paper “. One rather suspects a scarcity of material.

However, if there was. such a shortage it was apparently overcome, because the Notes continued without interruption or lack of worthwhile features.

A New Editor

With the close of the second year of publication there oame a change in the editorship. Mr Treadwell had carried out in an admirable manner the extremely difficult task of launching the new publication and consolidating its successe0, but the calls on his professional services had become so great that he was unable to carry on his editorship. It was

therefore handed over to Mr Hugh Jenkins who had been closely connected with the Nor% since their beginning, and it is recorded that those associated with him were Mr H. F. von Haast of Wellington, Mr .W. A. Beattie of Auckland, Mr C. Palmer Brown of Wanganui and Mr Victor Raines of Invercargill.

Although qualified in law, Mr Jenkins was a journalist and not a lawyer by profession. He was at one time a leader writer with the Dominion and later editor of the Wanganui ChroGcle, while he was also a frequent contri- butor to many internationally-known publica- tions.

A Change in Title

The change in Editorship brought ‘about no immediate startling changes in the Bbrtnightly Notes. In fact the history of the Notes and its successor, the LAW JOURNAL is noteworthy for gradual development and improvement rather than for a series of dramatic changes, of which that now being effected is the first. Throughout Volume 3, however, there can be detected a slow change bringing forth something comparable to the leading article of today, beginning with two or three short, uh- related paragraphs and steadily growing into a full-length article on a topical subject. In the, last issue of that volume there is a special announcement of the adoption of the title of THE NEW ZEALAND LAW JOURNAL and the addition of further features.

The promised changes, apart from the change in title, did not immediately appear. Issue 1 of Volume 4 presented much the same appearance as the issues comprising Volume 3, and the si?e remained at 12 pages. There was. further steady progress in the evolution of the, leading article but otherwise the main features remained unchanged. It was during this year, 1929, that the number of pages in each issue was increased to.l6.

On 24 April 1928 there was a further change in the editorship, when Mr Jenkins handed over to Mr H. J. V. James of Wellington. Mr James was a brilliant student and barrister whose hand ‘in the development of the Jomu can be clearly, seen. His term of office extended

,until 18 August 1931 ‘when he found himself compelled to relinquish his position owing to the demands of an ever-increasing practice.

Mr James was succeeded by Mr J. P. Kavanagh, whose tenure \of office extended from 1931 to 1969. His will be a familiar name to even our youngest readers and the steady improvement of the JOURNAL under his guidance is too well known to need any comment.

23 January 1962 THE NEW ZEAILAND LAW JOURNAL 3

New Courts

In 1931 New Zealand in common with most other countries was suffering from the effects of a serious economic depression, and action was obviously necessary to take some legislative steps for the protection of mortgagors. This took the form of the Mortgagors Relief Act 1931, and its provisions were extended to lessees by the. Mortgagors and Tenants Relief Act 1932.

The relief so granted was purely temporary, and in 1935 there was enacted the Rural Mortgagors Final Adjustment Act 1934-1935, which set up a new Court of Record, known as the Court of Review with certain powers as to the adjustment of the liabilities of former mortgagors. This resulted in a new feature in the JOURNAL, being a summary of decisions of this new Court. The feature first appeared on 20 April 1937 in Volume 13, p. 94, and was continued so long as the Court functioned. At first there was a bare note of the nature of the application to the Court and the decision but, as time passed and the Court made pro- nouncements on points of practice and of policy, more and more extracts from its judgments were included. This Court was only abolished in 1961 by the Mortgagors and Lessees Rehabilitation Amendment Act.

The Servicemen’s Settlement and Land Sales Act 1943 also resulted in the setting up of a new Court, known as the Land Sales Court, which has developed into the present Land Valuation Court. Here again the JOUFCBAL was quickly into the field to report the decisions df this new Court, and its first summary Of judgments appeared on 18 July 1944 in VoIume 20, p. 155.

In Your Armchair and Mine In the issue of 20 April 1943 there had

appeared another new feature entitled “ In Your Armchair and Mine ” by “ Scriblex “, a feature which is considered to have been, over its 18 years of publication, the most widely read and appreciated that has ever been contained in the >JOURNAL. I‘ Scriblex ”

The identity of was a very well-kept secret which

caused much speculation until quite recently, and it was only when Mr Justice Leicester was appointed to the Supreme Court Bench that all doubts were set at rest. It may, however, not be generally known that he was not the founder of the page, that honour resting with Mr James, the former editor. As readers are well awarb, the feature is being continued by another author writ@ under the name of “ Scorpio “.

On 17 April 1945 the JOURNAL sadly recorded the death of its former editor Mr James at the comparatively early age of 40 years. The last six years of his life were mainly spenk in bed as a result of the malady from which he suffered and which ultimately caused his death ; but illness did not put an end to his professional activities which he continued, so far as was possible, from his bedside. Those who remember him will find a sincere tribute at (1946) 21 N.Z.L.J. 90.

Further New Features In the meantime, the Summary of Recent

Judgments, which began with the first issue of the E’ortnightly Notes was continuing. The summary of each judgment was relatively brief and followed the style of the Weekly Note9 produced in England. With the beginning of Volume 24 on 20 January 1948 there was a fundamental change, and there appeared for the first time the Summary of Recent Law as we now know it. In addition to the notea of judgments of the Court of Appeal and Supreme Court previously published there were added notes of English and Apstralian cases, a reference to articles in our contemporaries which would be of interest and value to our subscribers and notes of cases decided in the Magistiates’ Court.

Finally on 6 March 1956 there was added the now well known reports of decisions of the Town and Country Planning Appeal Bdard and in 1961 “ Case and Comment ”

The Future By this time the JOURNAL had emerged

into the form under which we have known it so well, a form which is now being abandoned. Each change which was made from’ time to time was no doubt regarded as a modernisation, but inevitably with the passing of time that which was modern has become old-fashioned. Drastic changes had obviously become necessary and what the Publishers and the literary staff now present is what we%hink to be a vast improvement on that which we are abandoning. In one respect is the IJOURNAL unchanged ; that is in the continuation of its policy of endeavouring to advance the interests of the profession and to improve the worth and interest of the material which we carry. That at least is something that will fiever change.

[The New Zealand Law Journal is not the official Journal of the New Zealand Law Society.]

4 ‘%E NEW ZEALAITD LAW ~OURNA.L

SUMMARY OF RECENT LAW

CRIB¶INAL LAW Mene rea-Statutory offence-whether proof of

abeenoe of mena rw a defence-Primiplea applicable. The urovision of a minimum fine in a statute ~reatimr an &f&n& is a compelling consideration strongly favouring the view that the Legislature cannot have intended that such offence should be one independent altogether of mens sea, and that consequently it is probable that it was intended that. it should fall into either the first or the third cl- defined in R. v. Ewavt (&@a). On a charge brought under s. 46 (6). of the Customs Act 1913 it is a defence if the defendant is able to prove absence of m,en.s rea on his part. Observations as to matters to be taken into account in deoiding whether mena sea is a neceesaxy ingredient of a statutory offence. (R. v. Ewart (1906) 2[, N.Z.L.R. 709 ; 8 G.L.R. 22 ; R. Y. St. Margaret’8 Trust Ltd. (1968) 42 Cr. App. R. 183 and R. v. To&m (1889) 23 Q.B.D. 168, referred ,to; Ecchsfidd V,

Ch&nan (1898) 11 N.Z.L.R. 719, followed.) D’Audney v. Marketing ServgCes (N.Z.) Ltd. (S.C. Auckland. 1961. 16 August; 4 September. Turner J.)

DESTITUTE. PERSONS Jwim%tiolcWife resiclerct o&&de New Zeahtd-

Application for mmhtenance ora!m cm ?w behalf- Whether juriediction to make such ordet-De.&&% Persona Act 1910, 8. 25. There is jurisdiction to make a maiutenance order, end indeed any other order wrovided for in Part II of the Destitute Persons Act 1910, in favour of a wife ‘who is resident outside New Zealand. There is also jurisdiction to make cun order in favour of a wife whose husband is outside New Zealand. The words “ or elsewhere ” used in s. 25 of the Act in conjunction with a reference to the Commonwealth of Australia do not restrict the operation of the section to persons living in Common- wealth oountries. Herman.9 v. Hermasa. 2 October. Wicks S.M. Wellington.)

(1961.

ESTOPPEL WaGver-Dkst&ct&n. So far as concerns compliance

with para. (a) of s. 23 (1) of the Limitation Act 1.960 the se&ion should be read ss directory only, so that,

<if it should appear during or at the end of the trial of an action to which the section applies that the ‘orovisions of that paresrenh have not been fizllv complied with, the’ i&u% may then, if it thinks fit to do so, excuse non-complisnoe by granting leave to nroceed with the action. So M. bv the Court of Appeal (North and Cleary JJ., Gresson”P., dissentin dismissing an appeal from the judgment of Shorland

) f .,

(Watchtouter Bible and !&a& Society v. Huntly Borou@ r19691 N.Z.L.R. 821, overruled.) Further /&,d leer &xx& P.) : There .is e distinction between w&r end estoppel even though the facts of e particular

T case might admit of the application of either dootrine and make it unnecessary to have regard to such differences as there are. Estoppel is based on the principle that it would be inequitable to allow ti person who by a representation or by conduct amount- ing to a representation has induced another to act ae he would not otherwise have done to deny or repudiate the effeot of the represent&ion. Waiver consiste of an intentional act with knowledge indicating expressly or by implioation an intention to dispense wrth rur

existiruz oondition. It looks chiefly to the conduot and position of the person who is sa]d to have waived whereas in the case of estoppel it is not essential that the person sought to be &opped should have had knowledge or intention. Auckland Harbour Board v. Kaihe. @.C. Auckland. 1960. 14 July; 10 August. Shorland J. Court of Appeal. Wellington. 1961. 16, 17 March ; 25 Aug& Gresson Py North J. Cleary J.)

HIRE PURCHASE. AGREEMENT R&&r-Isolated Bale of cav which ia the pe?‘8o?Uld

property of the vendor--Vendor not a retailer-Hire hm9tase and Credd Salea ReguEcctdona 1957 (S.R. 1967/

iO), Reg. 10. A person not engaged in the business of selling cars cannot be regarded as a retailer of cars for the purposes of the Hire Purchase and Credit S&s Regulations 1957 (S.R. 1957/170) if he makes an isolated sale of a cw, his personal property, to another person. Berquist v. Haneep. (1960. 8 November ; 20 December. Sinclair S.M. Palmer&on North.)

INFANTS AND CHILDREd Custody-App2icaGn.a by fathuy of i&g- ddd

-No jzlriediction to make order for colstody--lrtfcmte Act 1908, 8. 6. There is no jurisdiction to ti en order for oustody under a. 6 of the Infants. Aot 1998 in favour of the father of & illegitimate child, Ed though the applio&nt has been adjudged the father by virtue of an affiliation order. Ch. 48, followed;

(In rs C. T. [IOU71 Kelluunay v. Qindding [1948]

N.Z.L.R. 338; [1947] G.L.R. 440, referred to; d&&z in In ce L. (1899) 2 G.L.R. 44; In re A. B. & C. D. (1914) 16 G.L.R. 681, and In re Mius [1928] N.Z.L.R. 158 ; [1928] G.L.R. 167, not followed.) In’re O’D. (1961. 8, 29 September. Wicks SM. Wellington.)

LAW PRiCTITIONERS

Act 1955, 8. 18. The draGof a tenancy agreement which is not a deed,and is not under seal by a person who is not a nrctctisinn barri&er or solioitor nor 8 licensed land bioker is “not a bres.ch of s. 18 of the Law Practitioners Act 1966. McUdkwh v. hdm’8on. (S.C. Wellington. 1961. 24 July; 11 September. Hutchison J.)

PRACTICE Coata-T?kd party makin bffer to defendmU of

Beth&&--Fffect. on third $nzrty’s biub%ty for c&t& I f e third party who has been joined in an adian for demages by a defendant makes an unequivocal offer in writinn to the ‘defendant of a contribution which may la to settlement of the plaintiff’s ck and sneoificallv informs the defendant that if he doea not act upon s&h offer an application would be made to hold him responsible for costs, the Court mt%y consider whether the offer should be taken into oon- sideration in exercisti its discretion 8~1 to costs by analogy with 0. XVG, r. 12~. Such an offer ‘made orally is not sufficient to shift the burden of eoste. Moore v. E&non&m and Another. (S.C. Christohumh. 1961. 8, 13 Sepuxnber. Turner J.)

23 January 1962 THE NEW ZEALAIND LAW JOURIUI. 6

PRACTICE-THIRD PARTY PROCEDURE Costs-Third party making offer to defendant of

eettlement-Ejject on third party’s liability jot costs- See PRACTICE (&pa).

PUBLIC REVENUE-INCOME TAX Aaseasments-Amendment-Amended a88~slneT&t8

&usd to laundryman based on asseb-accretion method -Alleged gijt8-%XpayeT’8 burden of proof--land and Income Tax Act 1954, ss. 22, 32. 1 N.Z.T.B.R. Case 10.

A88ea8ments--Amended assessments issued to milk vendor based on estimated profit on milk purchased from dairy-E8timate8 compared with profits made by other milk vendors-commissioner entitled to refuse to check eatimatea by assets-accretion method,---Following an investigation of his affairs, taxpayer, who carried on business as a milk vendor, was reassessed in respect of the income years ended 31 March 1956, 1957 and 1958. The amended assessments were based on calculations of the profit that would be derived from the nurchase of known auantities of milk sold at fixed prices. In arriving at the net profit allowance had to be made for certain losses and expenses such as wastage, theft, own consumption, token expenses and bad debts. The inspector supplemented and checked the results so obtained by ‘making a comparison with the results obtainod by other milkmen, but he refused to check the results by the assets- accretion method. Taxpayer objected on the ground that the amended assessments were excessive. He contended that the Commissioner had made in- sufficient allowance for certain losses and expenses and also that the inspector was in error in making provisions for purchases overclaimed or underclaimed in the relevant years. Held, The appellant had failed to establish that the assessments were excessive and they were accordingly confirmed. 1 N.Z.T.B.R. Case 9.

A88e88ment8-Amendment-Assets-accretion baa&- Calculation of lting expenses-Amount of opening cash -Alleged inuwwistenci~~ in allocating deficient income. --Lana! and Imome Tax Act 1954, ss. 19, 22-Tax- payer’s affairs were investigated by an inspector. The inspector calculated taxpayer’s assessable income on an assets-accretion basis after estimating his living expenses. Taxpayer claimed that the inspector’s estimate of his living expenses was excessive and that the inspector had made no allowance for ;E2,500 which taxpayer claimed he had on hand at, the beginning of the period. Taxpayer further claimed that in any event the total assessable income for the whole period ae calculated by the assets-accretion method should be apportioned equally to each year. Held, Taxpayer had failed to establish any of the grounds upon which he contended that the assessments were excessive. 1 N.Z.T.B.R. C&e 5.

Penal ta;E--Meaning of (’ evad.es “-InQdeq~e rewrda-Injo?m.ation intentionally withheld--Board’8 pow8r8 Of rev&w of pe?u&? tax a88888ment ma& befee 8 September 1960-Land and Income Tax Act 1954, s. 234 : Land and Incoma Tax Amendment Act 1960, 8. 3. 1 N.Z.T.B.R. Caee 13.

Penal tax-Whether eme88ive-Estate of deceased taxpayer-Inquiry limited to nature and degree of offence or the reason jar the impositkm of the penal tax -Hardship to beneficiary is irrelevant-land and Inwm Tax Act 1954, 8. 234. 1 N.Z.T.B.R. Case 14.

Protitarv wmwaniea-Director’s remuneration- Com&ny a legal e&ty-Burden of proof on objector- what ie ” reasonable ” remuneration-Comparative remunerations only approximate g&e--Land and Income Tax Act 1954, 8. 139. 1 N.Z.T.B.R. Case 7.

Proprietary companies-Directcrr’a remunerati- Cfrocery bu&ne88-Part-time attendance-what is ” reasonable ” remuneration-&sIa?+ie paid to director’8 8ons employed full time taken as base-land and Income Tax Act 1954. s. 139-A urivate comnanv wae incor- porated m-1936. At all material time; th; company’s authorised cauital had been $500 divided into 500 shares of fl each and A. had held 497 shares. The comnanv had at all material times carried on a mocerv business and A. had been virtually the sole d%ector. A. retired from full-time emnlovment in 1953 but since then he had attended *&ermittently at the business premises. A.% two sons were employed full time in the business. In its return of income for the year ended 31 March 1960 the company declared that its assessable income was $1,268 2s. after paying each son a salary of El,320 and 21,040 to A. as director’s fees. The Commissioner applied s. 139 and allowed the comnanv a deduction of $520 in lieu of the 21,040 paid io A. Held, A deduction in excess of f520 should be allowed and a maioritv of the Board determined that a deduction of E625”should be allowed. 1 N.Z.T.B.R. Case 11.

Prowrietamr remuneration- What a is

comwanks-Director’s “ ~eason&Ze ” remuneration-&imited com-

pany a legal entity-Land and Income Tax Act 1954, s. 139. 1 N.Z.T.B.R. Case 2.

WAIVER .?&toppedDistinctio?%--ke ESTOPPEL (8upra).

WORKERS COMPENSATION Liability for compensation-Worker killed while

travelling from town to town in own motor car-Work at destination not to wmmnoe till next day-JoWn4y partly for Own purpoee8--Employer paying mi.%age allowance for zG9e of car-Whether wmpenaation payable -Workers’ Compensation Act 1956,8. 5. The deceased husband of the plaintiff was a driver of earth-moving eauinment. His home was at Geraldine but he was temporarily living for the purposes of his work at Omarama. On a Friday he was killed while driving himself in hi own motor car from Omarama to Timaru where he was‘ to take part in a demonstration of earth-moving equipment on the following day. He was paid a mileage allowance by his employer for the use of his car on the iournev from Omarama to Timaru. but there was at cast a” possibility that he would have gone to Timaru or Geraldine for the weekend in any event. Held, That even if the deceased had intended to PO bevond Timaru temporarily he would have been t&elhug to work within the meaning of s. 5 of tho Workers’ Compensation Act 1956 while on the journey from Omarama to Timaru, and that, by paying a mileage allowance for the use of the deceased’s car for that journey the employer had impliedly authorised its use. The widow was therefore entitled to compensation. (Ha888tt v. Bridgeman (NO. 2) [1948] N.Z.L.R. 1220; [1948] G.L.R. 511 ; James v. Willitcms [1951] N.Z.L.R. 290; [1951] G.L.R. 162 and workers’ Compen88ation Board v. Maraki [1955] N.Z.L.R. 248, applied.) Hogg v. Hamilton Conatrmction Co. Ltd. (Comp. Ct. Timaru. 1961. 30 August. Dalglish J.)

27 JuIy;

6 TEE NEW ZEALAND LAW JOUT~NAL 23 January 1962

CASE AND COMMENT Contrtbuted by Faculty of Law of the University of Auckland

The Monopoly is Broken If McCdloch v. Anderson (judgment 11

September 1961) is rightly decided it seems possible that the legal profession need no longer concern itself with the danger of being investigated by the Trade Practices and Prices Commission.

This case was an appeal by an accountant and licensed land agent against conviction on a charge under s. 18 of the Law Practitioners Act 1955 that he, not being the holder of a licence as a land broker in force under the Land Transfer Act 1952 or of a practising certificate as a barrister or solicitor in ,force under the Law Practitioners Act, did act as a conveyancer in connection with an agreement concerning the tenancy of a house.

The appellant prepared for one of his clients a tenancy agreement, obtained the signature of both parties to it, paid the stamp duty on the agreement and counterpart, and sent an account in the following terms to the tenant :

“ To our fee drawing engrossing f s. d.

.and attending to execution of stamping of lease Jansen to yourself . . . . . . . . 500

Disbur8emmt+2 : Stamp duty . . . . . . 179

f6 7 9 ”

The agreement in question was an elaborate one, incorporating technical terms usually found in such agreements. In fact, as the learned Judge, Hutchison J., points out, the precedent for the agreement was in all probability an agreement drawn by a solicitor, for it contained an agreement that the tenant would pay the “ landlord’s solicitor’s costs of and incidental to the preparation hereof “.

The sole question in issue was whether the appellant “ acted as a conveyancer ” in pre- paring the agreement.

It is submitted that the Gallup Poll people would have found that the commuter on the Mosgiel train or the Devonport ferry would have been of the opinion that he was acting as such. It is certain that a fellow practitioner, when questioned on the Middlemore Golf Links, was of the quite emphatic and unprintable

opinion that he was aoting as such. However, because of the technical and historical mea*ning of “ conveyancer “, it was held by the learned Judge that he was not.

His Honour looked at the history of s. 18 of the Law Practitioners Act 1955 and found that its New Zealand source was s. 54 of Ordinance No. 10 of the Second Session of the Legislative Council of New Zealand passed 18 January 1842. This in turn had its counterpart in s. 14 of the Imperial Stamp Duties, Act of 1804. The learned Judge then noticed that there was a proviso to this section which made it clear that a person was not acting as a conveyancer if he prepared “ any will or other testamentary paper, or any agreement not under seal, or any letter of attorney “. The learned Judge then said that a,lthough the agreement prepared by the appellant was an elaborate one

“‘it was obviously, and admittedly, not a deed. It would therefore not correspond to a document under seal, but would be, for the purposes of the Act of 1804, an ‘ agreement not under seal ‘. The drawing of it then by appellant would not have been a breach of the Act of 1804. . . , I think, therefore, that the preparation of this agreement by appellant would not have been in breach of the 1842 section, or of any of the inter- mediate sections, and was not in breach of the present s. 18 “. It must be observed that the proviso to a. 14

of the 1804 Imperial Act does not appear in the 1842 Ordinance or in any subsequent equivalent provision ; it is questionable, therefore, if the learned Judge was entitled to rely heavily on the actual words of the proviso in construing s; 18.

If this decision is correct then it is obvious that there are many documents which are now regarded as documents which should, for the protection of the public, properly be prepared by a solicitor (or, because of the way s. 18 is worded, a barrister) which can be prepared by an unqualified person.

One peculiar result of this interpretation is given as an example of the difficulties, which could be encountered. Until the passing of the Land Transfer Amendment Act 1958 no instrument under the Land Transfer Act 1952 (and, of course, it will be appreciated that such

23 January 1962 THE NEW ZEA.UND LAW JOUBN& 7

instruments could not possibly have been in the contemplation of the Imperial legislature in 1804) was a deed until registration : Farno V. Ryder [1954] N.Z.L.R. 523. Therefore a person not a land broker or the holder of a current practising certificate as a barrister or solicitor could have prepared any Land Transfer instrument including the most complicated easement and could have involved his client in very great difficulties. Because the document was not a deed until registration he would not, on the authority of 1McCulloch v. Anderson, have been carrying on business “ as a conveyancer “. Of course if, and when, t’he instrument was registered he would have committed an offence under the section. This particular result would not now occur because of the amendment to the Land Transfer Act, but other difficulties could be envisaged.

It is submitted that for the protection of the public it might be appropriate for s. 18 of the Law Practitioners Act 1955 to be amended so as to ensure that members of the public should not be exposed to the dangers inherent ir. having documents prepared by persons not properly qualified to prepare them.

D.J.W.

Void Chattel Security. Claim by Official Assignee of Bankrupt Grantor

The judgment of Richmond J. in Off&d Assignee of McCormick v. The Provident Life Assurance Co. Ltd. (judgment 22 September 1961) is of great practical importance. More- over it settles, for the time being at least, a question on the effect of supervening bankruptcy on contracts which are both void and illegal. On this point, it appears,” there was no previous authority. It is consequently deemed advisable in this note merely to set out the facts of the case and to give his Honour’s decision on the issues involved without giving a critical appraisal of the decision or making a detailed examination of the authorities.

In the action the Official Assignee claimed a declaration that a certain instrument by way of security was void and an order for possession of a Morris motor car, or, alternatively, j&g- ment for its value. The bankrupt, an insurance agent employed by the defendant, executed an instrument by way of security which was duly registered. By this instrument the bankrupt purported to assign to the defendant by way of mortgage the motor car in question to secure repayment of the sum of 3Z685 with interest. It ww expressly stated in the instrument that

it was given as security for a loan to be expended wholly or partly in the purchase of the motor car. The security being subject to the terms implied by the Chattels Transfer Act 1924, the bankrupt was entitled to retain possession and use of the motor car “ until the grantor becomes bankrupt “. Likewise the defendant was entitled, in the event of McCormick becoming bankrupt, immediately to take possession of the car and sell and dispose of it.

The moneys advanced by the defendant were used by McCormick to purchase the car, the amount of the advance representing the full purchase price.

On 31 July 1958, McCormick was adjudicated bankrupt on his own petition. There was no evidence of any earlier act of bankruptcy which might have brought the doctrine of relation back into operation. At that date McCormick was in possession of the motor car. On 14 August 1958, the defendant, purporting to act under the powers conferred on it by the chattel, security, seized the motor car and later sold it to another insurance agent employed by it.

The first question which, in these circumstances, the learned Judge had to decide was whether the security was void as being in contravention of the Hire Purchase and Credit Sales Stabilisation Regulations 1957. Regula- tion 6 provides that “ a . . . lender shall not . . . make a loan on the security of any goods which . . . are to be purchased by the borrower and of which the purchase price or any part thereof is to be paid out of the pro- ceeds of the loan ” unless certain requirements set out in the Regulations are observed ; in particular unless a minimum deposit is paid and the loan is repayable within a maximum period of time as set out in the Regulations. It was common ground that these requirements had not been observed.

Counsel for the defendant submitted that t-he definition of “ lender ” % the Regulations viz., “ a person who is engaged in the business or makes a practice of lending money “, should be so construed as to restrict the Regulations to thoB who made a practice of lending money on the security of goods. Evidence showed that loans made by the defendant on chattels, which included. solely agents’ cars, comprised an exceedingly small proportion of the total amount of money lent by the defendant. Richmond J. did not accept this submission. He consequently held that the transaction between the bankrupt’ and the defendant contravened the Hire Purchase and Credit Sales Stabilisation Re@ations. The conse-

8 THE NEW ZEALAND LAW JOURNAL 23 January 1962

quences were that the contractual obligation of the bankrupt to repay the loan and the security given were void-as expressly stated in the Regulations-and that the whole transaction was an illegal transaction. This was his Honour’s interpretation of Luhrs v. Bad Investments Ltd. [1958] N.Z.L.R. 663, which was followed in Stenning v. Radio and Domestic Finance Ltd. [1361] N.Z.L.R. 7.

The second question concerned the effect of the contract being illegal on the right of McCormick before the bankruptcy to claim possession of the motor car. To claim possession it would be necessary to prove the illegal agreement. The maxim in pari delicto potior est conditio defendentis applied. The learned Judge said : “ I am therefore of the opinion that if the defendant company conse- quent upon a default by McCormick had re- possessed the car and resold it MdCormick himself would not have been able to recover the car or its value from the defendant “. His Honour distinguished the case .of Bowmakers Ltd. v. Barnet Instruments Ltd. [1944] 2 All E.R. 579 ; [1945] K.B. 65. In the instant case the defendant company could justify its action in seizing the car as being founded on a claim of right, viz., its power under the chattel security. Hence if, acting under those powers, the defendant had taken possession of the car before t%e bankruptcy, any claim by McCormick would have been met by the defence of il- legality.

But McCormick had been adjudicated bankrupt before the defendant seized the car. Did that affect the legal situation ? That was the third point with which the learned Judge had to deal.

On this point there did not appear to be any binding authority. After a careful consideration of the relevant cases his Honour came to the conclusion that the Official Assignee’s title could not be displaced by any acts which had taken place after the commencement of the bankruptcy. Section 61 of the Bankruptcy Act 1908 provides that the property of the bankrupt passing to the Official Assignee includes “ all property belonging to or vested in the bankrupt at the commencement of the bankruptcy “- in this case at the date of adjudication. At that time the full and un- fettered legal ownership and possession of the

car were vested in the bankrupt. The original contract between the bankrupt and the defendant was void and could give the defendant no rights whatever in the car. Hence the Official Assignee was entitled to judgment for possession of the motor car or its value.

The issues *decided by Richmond J. may be summarised as follows :

(a) An insurance company, or, for that matter any lending institution which lends any part, however small, of its funds to assist in the purchase of chattels is subject to the provisions of the Hire Purchase and Credit Sales Stabilisation Regulations 1957. Any chattel security given in return for such a loan which contravenes the provisions of the Regulations is illegal and void.

As the ‘security is illegal, if the lender obtains possession of the chattel, the borrower cannot get an order for possession. To do so, he would have to plead an illegal contract.

(b)

(cl

(4 If the chattel is in the hands of the borrower at the commencement of his bankruptcy, the Official Assignee may claim the chattel even though, after the commencement of the bankruptcy, the lender has taken possession of the chattel. The Official Assignee is not affected by a claim on behalf of the lender as such a claim arises from a void contract.

With respect, one may doubt his Honour’s statement that the instant ease can be distinguished from Bowmuker’s case (supa). He said : “ It is I think . . . clear that [Bow- maker’s case] has no application to the circumstances of the present case because the defendant company is able prima facie to rely upon the terms of the bill of sale to justify its action in seizing and selling the car and is therefore able to set up a prima facie ‘claim of right “. But if the bill of sale was void, as it was held to be, how could the defendant rely upon it to justify its action ? Such doubts do not affect the final decision, They are stated to draw attention to the consequences of a contract being held to be both illegal and void.

A.G.D.

A Coincidence-At the 1957 Legal Con- Arndt (Wellington). In the first case in ference held in Christchurch, Mr J. C. White Wellington in which this procedure was adopted (Wellington) proposed that after a jury had counsel engaged were : for the plaintiff, Mr been empanelled it should retire to choose its Arndt ; for the defendant,, Mr White. foreman. He was supported by Mr C. H.

23 January 1962 THE NEW ZEALAND LAW JOURNAL 9

LEGAL EDUCATION AND TME UNIVERSITIES

The present is a fitting time for a law teacher to offer comments on the role of the Universities in legal education. The Law Practitioners Amendment Act and the other legislation enacted in 1961 mark the end of an era-an era during which legal education in New Zealand was controlled by the Senate of the University of New Zealand, acting with the advice of the Council of Legal Education and the Academic Board. It is impossible to assess the contribution made by the University of New Zealand or to understand how that University came to occupy the central position in legal education without a detailed knowledge of conditions prior to 1930, when the University assumed its responsibilities.

The state of legal education in New Zealand was the subject of severe criticism by the Royal Commission appointed in 1925 to report on University education. The Commission, known as the Reichel-Tate Commission, devoted seven pages of its Report(a) to the shortcomings of New Zealand legal education which the Report shows was then in a deplorable condition.(b) It is regrettable that the seven pages of thq Report should be so inaccessible ; perhaps they could be reproduced by the JOURNAL as a reminder of the state of legal education in the not so distant past. The Report stated in part:

“ It is essential, therefore, that the scheme of education for en+rants to a profession of the first rank should be generously planned and administered, and that a more or less empirical knowledge of the technique of practice in the various branches of the profession, superimposed upon a slender equipment of general knowledge and of principles4 should not be accepted as satisfactory. Yet, according to several witnesses, such a description applies to the training of a great number of those admitted as solicitors and ultimately as barristers in New Zealand.

“ Professor Algie (Auckland) asserted that candidate solicitors came to the law lectures fresh from school, and many managed to complete the seven subjects required in two years. The student had neither adequate general education nor maturity of mind and

(a) The Report appears as App. J.H.R. E-7A (1925). Henceforth it will be referred to as “ the Report “.

experience to appreciate fully the legal subjects.

“ Mr J. B. Callan, Dean of the Faculty of Law (Ota,go) stated : ‘ The law professional subjects are concerned with the rules evolved by our Judges and enacted by our Parlia- ments to deal with the muhifarious relations and duties of citizens in our complex social system. A boy or girl straight from a secondary school who attempts to master these rules of conduct necessarily labours under the disadvantage of being unaware of the very existence of many of the problems which the rules of law attempt to solve ’

“ ‘ But ‘, said Mr C. P. Skerrett K.C., ‘ another fact,or, which is certainly peculiar to New Zealand, is that an admitted solicitor who has practised for five years, no matter what the extent of his practice, or, in the case of a managing clerk to a solicitor, no matter what, t,he extent of that solicitor’s practice may be, is as of right entitled to admission as a barrister after a period of five years ‘.

“ Mr J. R. Callan, in his statement, asserted : ‘ A subst,antial majority of hhe persons now holding the qualification of barrister have gained this distinction by five years’ practice as solicitors, and not by any examination beyond those examinations which they passed originally to qualify them as solicitors ‘. A low standard of education for solicitors therefore inevitably affects the standing of barristers.

“ Legal practitioners have always been regarded as members of a learned profession, as, indeed, is shown by the customary courtesy of allusion to ‘ my learned friend ‘. It appears to us that, unless a ma,rked’ change is effected in the legal education provided in the Dominion, this term runs the risk of being regarded as a delicate sar- casm.“(c) Though this criticism of the state of legal

education in the 1920s was justified, such remarks could not have been applied to the earlier period when the Judges played a much greater part in the admission of entrants to the profession. For instance, in the 1870s a Judge

(a) This was also the view of the representatives of the profession and the law teachers who gave evidence.

(c) Report, p. 44.

10 !I?HE NEW ZEALAND LAW JOURNAL 23 January 1962

made the following report on a oandidate : “ It is due to Mr X., one of the candidates

lately before me upon his preliminary examination, that I should report and certify as follows :

“ Mr X.53 Latin Paper was, I believe, without an error ; his translation of the passage given to the candidates from the Aeneid was also exceptionally good-even his viva vote translation from the same book was without error.

“ I am not aware whether the other Judges of the Supreme Court have required this test of candidates, but I have of late required of candidates, that they should not only be able to translate viva vote with correctness from the particular book which they had prepared aqd got up for the occasion but that before they could be declared to shew ‘ a competent knowledge of the Latin Tongue’ they should be able to translate, viva VOM, with a, fair degree of correctness any passage of simple construction and diction from any other a&her of the Augustan Age, which might be given them to translate. Mr X. very nearly attained this standard also ; and indeed his translation of another passage from another Latin author which he !: 1 not been getting up for examination, wa., ultimately correct, but it took him so long a time to work out the meaning of the passage given to him for this test of his proficiency that I deemed it right he should have this opportunity, between his preliminary and his final examinations, of making himself more generally acquainted with the Latin Tongue.” Though it may be said that the learned Judge

placed more importance on familiarity with Latin than is now customary, others have quite recently expressed support for Latin as a necessary part of a lawyer’s education.(d)

(d) See Sir Victor Windeyer’s address to the Twelfth Legal Convention of the Law Council of Australia reprinted in (1901) 36 Au& L.J. 102, 107, where he stated : “ No doubt it is more imnortant for a practising lawyer today to be able to &ad a balance- sheet than to have read Justinian. He should. I think, be taught how to do the first. But I would not relieve him of the second. It is imnossible. some- how, to think of a university degree’ in law being given to anyone whollv ignorant of the Civil Law. What about” Latin ? it & not just that it is the language in which the Civil Law is written. As one who has forgotten most of the little he ever knew. I yet suggest that a lawyer should have had enough L’atin to retain a feeling for lanpuaee that is terse. precise, neat and a vehLle for eI’e,ance. We might be spared some amorphous sentences. And all advoaates might heed Cicero’s advice and speak ’ with knowledge, method, charm and memory, and

In 1925 the Reichel-Tate Commission obviously thought that the New Zealand legal profession could not claim to be a learned profession ; the arrangements for the training of’ lawyers at the Universitie . and in law offices were seen to be in urgent need of a complete overhaul. New Zealand’s standards were so low that Australian states would not accept New Zealand practitioners without further examination and training.(e)

The Report led to the passing of the New Zealand University Amendment Act 1930 which created the Council of Legal Education for the express purpose ,of enabling the Uni- versity of New Zealand to discharge its functions under the Law Practitioners Amendment Act 1930. Under the latter Act the University of New Zealand was empowered to prescribe and conduct the examinations for admission to the legal profession. This far-reaching change was justified by the earlier conditions described by the Commission. Although there have been some critics(f) of the powers of the University, the criticism has not always been well informed or based on an appreciation of the shortcomings of the prior arrangements. By and large, the University of New Zealand, with the advioe of the Council of Legal Education, has performed its task with distinction. One result of the changes made in 1930 has been that most entrants to the legal profession have been University graduates, a fact which distinguishes the profession in New Zealand from that of most other Commonwealth countries. This very close assodiation-beneficial to the profession and to the Universities-is something which both parties should make every effort to preserve and strengthen.(g)

The last 30 years have seen more than one revision of the statutes governing the LL.B. and the professional examinations. In relation to the last revision of those statutes, a Law

with these have a certain distinction of bearing ‘. And all lawyers might the better remember the importance in all the affairs of law of the quality that the Romans called graviti ; and regularly condemn, as they did, Ietitas, slickness, .pertness and mere smoothness “. Other speakers in support included Dr B. A. Helmore (ibid.. 117). Most speakers emphasised the need for a baokground in the humani- ties.

(e) Report, pp. 46-47.

wd;’ ST;. J.,N. W1’ ‘son (1960) 36 N.Z.L.J. 148, 161, I thmk it is a matter for regret that

[legal edication] was ever surrendered to the Uni- versity . . .“. But was there anything to surrender in 1925?

(g) It is questionable, however, whether persons who take more than seven years to aomplete their examinations should receive a University degree,


Society spokesman acknowledged the oontri- bution made by the full-time law teachers to the formulation of the proposals.(h) The present LL.B. statute and the courses taught under it compare favourably with the university law courses offered in other jurisdictions. It is not too much to say that much of the initiative for the changes came from full-time law teachers and therefore t!hat much of the credit for this satisfactory state of affairs is due to them and to the University of New Zealand.

Some other comparisons between the state of affairs prior to 1930 and in 1961 should be made. At the time of the Reichel-Tate Report there were only three full-time law teachers in New Zealand ; now there are nearly 20, most of whom have had overseas experience. The Commission commented on the abnormal number of law students. In 1925 there were 586 of a total enrolment of less than 4,000 in all university institutions ; in 1961 the number of law students would have been in excess of 1,106 of an enrolment of nearly 17,000. From a position where the law enrolment was 14 per cent of total university enroIment it has declined now to about half of that percentage.(i) It is interesting also to compare enrolment at Auckland with enrolment at the law schools of the United Kingdom and Australia ; the Auckland enrolment is larger than that of any University in those countries other than Cambridge, Oxford, Melbourne and Sydney.

Law libraries within the Universities were almost non-existent in 1925(j) but are now quite creditable collections, complementary in some respects to, the bigger collections of the district law societies. There has also been a revolution in teaching methods and in-university education generally ; few graduates of more than 20 years’ standiug would be aware of the changes that have occurred.(k) For example, undergraduatesare now required to complete a reasonable amount of written work in the form of opinions ; they must take part, as solicitor or counsel, in moot Court proceedings, and

(h) J. N. Wilson (1960) 36 N.Z.L.J. 148, 149-160, where it is stated : “In 1969 the Council of Legel Education undertook a complete overhaul of the co-mm for the degree of Bachelor of Laws and the Solicitors’ Professional Examination. In view of the disoontent expressed by members of the profession, it is somewhat surprising that the initiative in this overhaul was taken, not by the profession, but by Professor .Northey and Mr Sim of the Auckland University Law School who drew up comprehensive proposrds which, with some modification, were adopted by the Council of Legal Education and passed by the Senate “.

(i) Many of those who enrolled for law oourses in

share in the intensive work done in small tutorial groups of up to 10 members all of whom are given the opportunity to discuss and exchange opinions on legal questions. Mere passive attendance at lectures and the capacity to commit to paper principles which have been memorised, but not necessarily understood, no longer assure the student of a pass in the examinations. The examination papers set prior to 1930 tended to put a premium on rote memory work. Most of the papers contained 19 questions all of which had to be answered in three hours.

It is also worth recalling what the Reichel- Tate Commission said of the 1925 period :

“ Another great handicap under which legal education suffers in New Zealand is the almost invariable practice of taking legal studies as evening courses after office work either in a law office or an office engaged in some other business. Over 90 per cent of New Zealand law students are evening students only. Of the 199 evening law students who constitute the largest single group of students at Victoria College, Wellington, 52 per cent only are employed fully or for part-time in law offices. The remainder are mostly public servants studying law subjects either to gain advancement in the service or to enable them later to start in legal practice. The amount of legal practice such students can obtain is probably very little indeed.

” We are of opinion that part-time education properly conditioned (sic) is in no way undesirable. But while it is certain that earnest students engaged in law offices during the day can do excellent work at an evening school, it surely cannot be argued that the result is so good as can be secured by the same students attending full-time courses or that the pace of the class should be that of the class for full-time students.

“ The difficulty should be met by insisting on such a limitation of the number of subjects

the 1920s must have been attracted by the extremely modest requirements for entry to the profession. No other established profession could be entered es easily or oheeply.

(j) The Report at p. 61 refers to this deficiency. Ik) Consider the evidence of Professor R. M. Aleie

q&d in the Report at p. 49 : “ The law as to joi& stock companies forms a portion of the syllabus for Property, II : last year I explained the intricate problems of this subject . . e in three hours “. This year over 60 hours of formal tuition was provided at Auckland each week and the full-time staff regard themselves as available for oonsultation and disoussion at 4buy time,

12 THE NEW ZEALAND LAW JOURNAL 23 Ja~nuury 1.962

taken as will allow sufficient. time for both teacher and student, to do justice to t.he work. Further, it must be remembered- that in most countries where law students attend late afternoon and evening courses they are iri a genuine law office under strict articles of clerkship. This cannot be said of New Zealand, where the only legal education which is under control is the work of the class-room. Some students may be receiving an excellent practica,l training, but of this there is no guarantee.“(Z) The Universities have been able to raise the

standards to be met by their undergraduates. This is reflected in the performance overseas of some of our recent graduates. who have found themselves able not merely to compete on equal terms with the graduates of overseas universities, but in some cases to secure the top awards. This brief account of the changes made in the past 30 yesrs shows t,hat the University of New Zealand is able to give a good account of its stewa,rdship of legal education.

The University has been assisted by the advice of representatives of those interested in legal education, the judiciary, the profession and the university law teachers, presented through the Council of Legal Education. As has been said, the association on the Council has been friendly and fruitful ; the sfa,nding of the profession and the university law schools has increased in consequence. But, what of the future ? The arrangements provided for in the 1961 legislation are these. The Council of Legal Education, constituted in much the s&me manner as in the past, ceases to be a university body(m) and is made responsible for prescribing the courses for entry to the profession. The four universities will in future confer their own degrees, the course regulations for which need not be submitted to the Council, although I would imagine that the Universities would consult the Council concerning their plans and secure the benefit of the advice of members.(n) Degree examinations for law students will be conducted in the same way as

(I) Ibid., p. 47. The worst aspects of part-time study have been eliminated. I am unable to say whether comnarable imwovements in mactical training have bee; made in the last 36 yea&.

(nz) This separation from the Universities is obscured by the curious provisions under which the Grants Committee offers secretarial assistance to the Council and meets the expenses of one meeting of the Council each year.. See Universities Act 1961, s. 11 (1) (g), and Law Practitioners Amendment Act 1981, s. 13.

(n) Sir Victor Windever 119611 35 Au& L.J. 102. ll!$’ rgcognised the n&es&y &dependence of the universities when he stated : “ A university cannot

other university examinations. The t.eacher responsible for the course will set and mark the papers of the candidates from his University with the assistance of an assessor from the practising profession. The Universities will no longer control legal education, rather will they share it with the Council of Legal Education. Unfortunately for the Universities, their share in legbl education is somewhat diminished by the powers exercisable by the Council.

The functions of the Council include the definition of the courses of study for admission as barristers and solicitors, the provision of those courses and the tendering of advice to the Universities on any matter relating to legal education.(o) The controversial provision, on which opinions within the University of New Zealand were aa; sharp variance,(p) is that which requires the universities to provide teaching in the courses of study defined by the Council of Legal Education.(q) The Uni- versities can be relieved of this obligation by the Curriculum Committee, an academic body created by the Universities Act 1961.(r) The objections to this provision from the university viewpoint are the interference it involves in university autonomy and the awkward precedent it might create. The legal profession alone is able to require the universities to provide courses of study ‘as defined by a non- university body.(s) Moreover, it places a limitation on the development of the Uni- versity’s degree courses in that any substantial departure by the Universities from the courses of study defined ‘by the Council will involve duplication of courses, a decision not lightly to be taken in view of the acute difficulties of recruiting qualified staff. It is to be hoped that no serious divergence will occur but, with four degree-conferring universities, there can be no certainty that each will pursue precisely the same lines of development. In a sense the wheel has gone full circle ; from a position where some members of the profession regarded the powers of the University as irksome and out of keeping with the traditions of the profession, we now have a situation where large

accept outside dictation of the requirements for its degrees “.

(0) Law Practitioners Amendment Act 1961, a. 10. to(g)s ~;~;o$emic Board was unanimously opposed

(9) Law Practitioners Amendment Act 1961, 8. 14. (r) Section 27. (a) Cf. Medical Practitioners Act 1950, SS. 9-12,

u,nder which the Medical Council admits medical practitioners to the register. Those wiih degrees in medicine from the University of Otago are not required to write any other examination.

23 January 1962 THE NEW ZEALAND LAW JOTJRNAL 13

and well-established universities are placed in a subordinate position and where university development is liable to be inhihited by professional policies. Furthermore, there can be no assurance that all of the courses of study prescribed by the Council as necessary for ad.mission as barristers and solicitors will be of a satisfactory standard and content suitable for university teaching. The powers of the Curriculum Committee will presumably be used to protect the Universities in any case where the courses proposed are not of a satisfactory standard or if any University lacks the staff or facilities to provide the courses prescribed. If this happens the Council will be able to use its powers to arrange the provision of teaching outside the Universities.(t) It would, however, be regrettable if any serious divergency arose between the courses provided for university degrees in law and those prescribed by the Council. The Universities and many practitioners recognise the benefit each has derived from the close relations between the university and the profession fostered by the University of New Zealand.

It would, I think, be appropriate to conclude this article wit,h a brief statement of what I believe to be the attitude of full-time teachers towards legal education. As far as I am aware, every member of the full-time teaching staff of the four university lay schools believes that entrants to the legal profession must have a period of office training and practical experience before being p&mitted to practise.(u) This apprenticeship aspect of training is not, of

(t) Section 10 (1) (b) authorises this. (u) I am necessarily expressing my personal views

but I know that many of my colleagues would agree. With some I have hesitated to discuss the question. My hesitation is explained by a remark made by Professor J. A. G. Griffith in a paper delivered to British, Canadian and Americ In law teachers in 1960 when he said that “ to ask what is the function of a University is as embarrassing as to ask a man if he believes in God” : (1961) 14 Jl. Legal Education 13, .17.

(2)) See footnote (d), mpa. There are extracts from the Report of the Commission to the same effect. At p. 44 this aspect of legal education is emphasised : &‘ There are, we conceive, certain broad lines along which legal education, like all professional education, must travel, if the profession of law is to be a reality, and to fulfil its true function. Members of a ‘ profession ’ are distinguished by three main qualifications : (1) They have undergone a sound and liberal course of general education ; (2) they have received an intensive training of high quality in the principles and in the practice of their special work ; and (3) they have accepted a body of ethical standards &s a guide to professional conduct “. At p. 46 the Report stated : “ The custom of some universities of requiring the B.A. degree as E preliminary for the

00urtie~ the responsibility of H, Univrrsity but, of the prn’ctSising profession and represents the profession’s specia’l contribution t,o legal education. The University’s concern is with that part of legal education for which it is directly responsible ; the study of the principles and theoretical aspects of the main branches of law ; legal reasoning ; the development of the student’s powers of thought and his capacity for articulate expression both written and spoken ; and the production of men who are “ educated ” in the most general sense.(v) The University’s anxiety is to make its contribution, which is the necessary foundation of the “ apprenticeship ” training received in the office, as effective as possible. To do this the Universities have introduced practices and techniques adopted at the leading law schools overseas, and they are anxious to ensure that standards in New Zealand do not fall behind those of overseas law schools.

The traditions of legal education-including part-time study-which New Zealand has in- herited may need to be revised if we are to provide legal education adequate to the demands of the complexities of the 20th century. The English Law Society in a recent report(?u) has recognised that if university work and office training are undertaken at the same time, the student is unable to do justice to his university courses or to his employer’s work. The universities and the profession must co-operate through the Council of Legal Education to find a solution to this and other problenis.

J. F. NORTHEY

study of the professional subjects of the LL.B. degree has much to recommend it, for the mental habits engendered by liberal studies are an appropriate foundation for the more.. vocational studies: The New Zealand practice of. allowing an immatye student to take his law professional examination and later to take his general knowledge test is surely absurd and shows little belief in the need for general culture as a basis for professional study “.

is (~~(,~~60) ,p7 Law Soci?ty’s *Gazette 641, where it The Council beheve that the Dresent

system of training is unsatisfactory in certain r&pects: the minimum standard of general education required of those entering the profeision is too low ; the con- flicting claims on the time of an articled clerk made by the need to gain practical experience in his prin- cinal’s office, bv compulsory attendance at law school aid by prep&&ion fbr the- professional examinations result in confusion and a dissipation of effort ; the Final Examination is too much of a. test of memory and a feat of endurance : and the approved law- school system, which is tm attempt- io combine academic and vocational teaching, is unsuccessful, and wasteful “. Changes then proposed to remedy these defects have since been made. See _ (1901) 68 Lsw Society’s Gazette 401-408.

14 THE Nm ZEALAND LAW JOURXAL

;IUDGE STJLWELL

Tributes in Court

23 Jtmvmy 1962

On 1 December 1961 a representative gather- ing of members of the legal profession was held in the Arbitration Court, Wellington, for the purpose of farewelling Judge Stilwell, who had already commenced his retiring leave. The Magisterial Bench was represented by Mr R. D. Jamieson S.M., Wellington, and there was also present by invitation, issued at his own request, Mr T. Redmond, representing the four organisations of workers employed by the Government Railways Department.

Mr D. Perry, President of the New Zealand Law Society, expressed the regret of the profession at his Honour’s retirement. In referring to the 15 years which the’ Judge spent on the Bench of the Magistrate’s Court, Wellington, he said that all those who then practised in that Court came to know and esteem the Judge who had earned their warm affection and regard.

Mr Perry also referred to the wide range of duties carried out by the Judge during his long judicial career.

In concluding, Mr Perry said : “ On your retirement you carry with you the warmest good wishes of the whole fraternity of the law, a fraternity to which we know you have always been proud to belong, and we wish to you and Mrs Stilwell long years of peace, happiness and contentment in the days to come “.

On behalf of the Wellington District Law Society its president, Mr J. (1. White, also referred to the Judge’s term of office on the Wellington Ma.gisterial Bench, to the tolerance, patience and friendliness then shown towards the younger practibioners appearing before him and to his high sense of justice in holding the scales between men and men. He concurred with Mr Perry in extending good wishes to the Judge and Mrs Stilwell.

Mr Redmond then spoke. He recalled that he changed his employment from iron worker to advocate rather suddenly and expressed thanks to Judge Stilwell for his kindness and courtesy to one so raw. Mr Redmond referred to the number of cases which he had handled before the Railways Industrial Tribunal and to the patience displayed by the Judge at all timea. He also expressed the good wishes of $h? &ur Railway Organisations,

In reply, Judge Stilweli thanked all the speakers for their remarks and expressed appreciation of the help he had always had from the profession, from advocates and from witnesses in the carrying out of his many varied duties.

In reminiscent mood, Judge Stilwell mentioned that he commenced work as an office boy with a legal firm at 6s. per week. Present reference to the appropriate Industrial Agree- ment disclosed that that designation had dis- appeared and the nearest to it which now

Judge Stilwell

exists is “ Other employees (male) under 17 years of age “. The salary for such a worker is ndw 25 18s. per week.

The Judge made special reference to the presence of Mr Redmond and asked him to convey to the four organisations which Mr Redmond was that day representing the Judge’s deep appreciation of a very kindly gesture,


MAINTENANCE OF DESERTING WIVES

At common law a wife who is in desertion has no right to be maintained by her husband. The duty to maintain and the duty to cohabit are co-extensive, and since a wife’s desertion excu:.es her husband from his duty to cohabit, so also does it excuse him‘ from his duty to maintain her.(u)

This simple rule, which has much to com- mend it, is based on a view which pervades the cdmmon law of matrimonial relations. Pro- tection and fostering of the stability of the family have always been the aims and objects of the common law. As a corollary it is not surprising to find that, on the whole, the common law has stressed the importance of family duties and, as a practical means of enforcing them, has refused to give its aid to spouses in breach of them. The common law’s refusal to entertain a claim for maintenance on the part of a deserting wife is only one application of this :(b) the view is that it is the duty of spouses to live together, and that if a wife leaves her husband with no good reason for doing so, she, being in breach of her duty to live with him, cannot say that he is under any duty to maintain her. If a wife, for reasons of her own, wishes to break the bonds of co- habitation, it is not in the least unreasonable to say that a blameless husband should be relieved of a duty to maintain which arises solely from the relationship which the wife has chosen to terminate.

To reach this result, as we have seen, the common law employs the test of desertion. If the wife is in desertion-which necessarily implies that she has no legally recognised grounds for remaining apart from her husband -she is not entitled to maintenance. The importance of this is that the only grounds which the common law regards as justifying a wife in living apart are “ grave and weighty ” grounds : grounds which are such as to make it practically impossible for the spouses to live together.(c) In assessing when the duty to

(a) Cf. Chilton v. Ghilton [1952] 1 All E.R. 1322 ; [1952] P. 196, 202, per Peerce J.; see also, e.g., National Assistance Board v. Wilkineon [1952] 2 All E.R. 255 ; Holborn v. Holborn [1947] 1 All E.R. 32. And see Rayden on Divorce, 8th ed. (1960) 913 ; Latey on Divorce, 14th ed. (1952), 451 ; 13 Halabury’s Lawa of England, 3rd ed., 480-483.

(b) For an application of this principle in s somewhat different field, see Rhipmun v. Sh.ipmun [1924] 2 Ch. 140 (CA.).

live together is terminated the common law is not concerned with anything less : matters such as ill-health or incompatibility of tempera- ment are in themselves obviously not “ grave and weighty ” enough to justify withdrawal. Lord Porter was not stating any revolutionary principle when he said, in the leading case of Lang v. Lang :(a?)

“ A husband’s irritating habits may so get on the wife’s nerves that she leaves as a direct consequence of them, but she would not be justified in doing so. Such irritating idiosyncracies are part of the lottery in which every spouse engages on marrying, and taking the partner of the marriage ‘ for better, for worse ‘. The course of conduct . . . must be -grave and convincing.” It would not have been necessary to state

these clear principles of common law at such length had the position been as clear in New Zealand. New Zealand practitioners are however faced with two complicating factors : s. 17 of the Destitute Persons Act 1910, and a series of cases starting with Bulman v. Bulman(e) in 1958, in which the deceptively simple terms of the section have fallen to be interpreted.

Although most of the readers of this article will be sufficiently familiar with the provisions of s. 17 to be able to recite them in their sleep, it is worth recalling its terms.

Section 17 opens by providing that a Justice of the Peace may issue his summons to a husband to show cause why a maintenance order should not be made against him. An essential prerequisite is, of course, that there must be a complaint on oath that “ the husband . . . has failed or intends to fail to provide [the wife] with adequate maintenance.“(f) This is contained in s. 17 (1) (a).

Section 17 (3) provides that the Magistrate hearing the complaint, “ on being sati@d of Me truth thereof, may, if he thinks fit, having

(c) Yeatman v. Yeatman (1868) L.R. 1 P. & D. 489, 494, per Lord Penzance ; Oldroyd v. Oldroyd [1896] P. 175, 184, per Gore11 Barnes J.; Buchler v. Buckler [1947] 1 All E.R. 319 ; [1947] P. 25, 45-46 (C.A.), per Asquith L.J.; Dyson v. Dyson [I9531 2 AI1 E.R. 1511 ; [1954] P. 198, 200, per Barnard J.; Lang v. Lang [1954] 3 All E.R. 571 ; [1955] A.C. 402 (J.C.).

(d) [I9641 3 All E.R. 571, 573 ; [1955] A.C. 402, 418.

(e) [1958] ‘N.Z.L.R. 1097.

(f) ‘& Adequate meintenance ” is defined m 8. 2,

16 THE.NEW ZEALAND LAW JOURNAL 23 ,Janmry 1962

regard to all the circumstances of the cast. make a. maintenance order against the husband “.

Next it is necessary to refer to s. 17 (7). This lays down that “ Where the husband and wife are living apart from one another, and the wife has, in the opinion of the Magistrate, reasonable cause for failing or refusing to live with her husband, the husband shall not be deemed to have provided her with adequate maintenance merely by reason of the fact that he is willing and ready to maintain her if and so long as she lives with him “.

Now it is obvious that none of these subsections, can be read in isolation. Each has some bearing on the others, and it is profitable to consider first the effect of s. 17 (7).

On the face of it, the subsection would appear to deal with this situation. A wife swears out a complaint for maintenance. Her husband, at the hearing, alleges (a) that his wife has left him ; (b) that she had no reasonable cause for doing so ; (c) that he is willing to maintain her if and so long as she lives with him. The question is whether this evidence (if well-founded) provides the husband with an answer to his wife’s, complaint that he has “ failed or intends to fail ” to maintain her.

The subsection, of course, in its express terms, really deals with the opposite situation : a husband cannot say that he has not “ failed ” to provide adequate maintenance, even though he may be willing to maintain his wife if and so long as she lives with him, if his wife shows that she has “ reasonable cause ” for living apart from him. But it does not necessarily follow that if the wife fails- to show that she has reasonable cause for living apart, her husband is liable to maintain her. If this were so, it is difficult to see what purpose the subsection was designed to serve. On the contrary, the words “ the husband shall not be deemed to have provided her with sdequate maintenance merely by reason of the fadt that he is ready and willing to maintain her if and so long as she lives with him ” (which depend for their effect on a finding that the wife has “ reasonable cause ” for living apart) seem to embody a recognition of the. common-law principles already mentioned. They recognise, in common-law terms, the proposition that the husband must be ready and willing to carry out his duty to maintain his wife if she in her turn carries. out her duty to live with him. But, again in terms of the common law, this postulates a duty on the part of the wife to live with her husband, and if the husband is in desertion it is clear at common law that the

wife is under no dutv to live with him until the husband has terminated his desertion by making a bona fide request to return to co- habitation. This does not affect the wife’s right to maintenance because she is herself not in breach of her duty. Now the subsection, instead of speaking in terms of desertion, speaks of the wife having “ reasonable cause ” for living apart ; and, leaving aside for the moment the question of the meaning of “ reasonable cause “, it would seem to follow that a wife who has “ reasonable cause ” for living apart from her husband is not to be regarded, for the purposes of the subsection, as being in breach of her duty to live with him. This being so, on an analogy with common- law principles, the husband must provide her with maintenance.

If, on the other hand, she has no “ reasonable cause ” for living apart, it follows that she is in. breach of her duty to live with her husband, and again on an analogy with the common law the husband is under no duty to be anything other than ready and willing to maintain her if and so long as she lives with him. But do the terms of the subsection justify this view ? To answer this question it is necessary to return to the provisions of subss. (1) and (3).

The effect of these subsections, as we have seen, is that a Magistrate “ may ” make a maintenance order if he is satisfied (s. 17 (3) ) that the husband has “ failed or intends to fail ” to provide his wife with adequate maintenance (s. 17 (1) (a) ). Now in view of the above discussion of s. 17 (7), it is highly significant that subs. (1) (a) speaks of “ failure ” or “ intention to fail ” : it does not speak of the husband not having paid adequate maintenance, or intending not to pay it. Indeed, if subss. (1) and (3) were expressed in terms of the Magistrate being satisfied that the husband had “ not provided ” adequate maintenance, there could be no need for s. 17 (7), because a husband would be liable to have a maintenance order made against him, in the Magistrate’s discretion, simply because he had not paid adequate maintenance. Any defence based on the wife living apart without reasonable cause might be relevant to the exercise of the Magis- trate’s discretion, but it could not possibly be relevant to the exercise of his jurisdiction to make an order : his jurisdiction in this respect would depend entirely on proof that the husband had not provided adequate maintenance. But it seems that s. 17 (7) must necessarily go further than merely to affect the exercise of the Magistrate’s discretion. It’ directs the


Magistrate, in cases where the wife shows she has reasonable cause for living &pat%, to disregard the fact that the husband is ready and willing to maintain the wife if and so long as she lives with him. Further the husband, in these circumstances, is expressly deemed “ not to have provided her with adequate maintenance ” by reason of the fact that he is willing to maintain her if she lives with him. What is the purpose of this provision if the Magistrate may by virtue of subss. (1) and (3) award the wife maintenance merely because the husband has not provided any ? Must not subs. (7) have been inserted for the express purpose of defining the husband’s duty to pay maintenance for the purposes of the section ‘1 Further, in the light of this, do not the words “ has failed or intends to fail ” in subs. (1) (a) postulate failure to 0hserW a duty Z

If subss. (l), (3) and (7) are read in this manner then the pattern of their operation becomes clear and convincing. It must be remembered that s. 17 was not enacted in a vacuum : the Legislature must have had the common law in mind. In this respect the adoption by the Legislature, in s. 17 (7), of a test of “ reasonable cause ” for living apart, instead of the common-law test of desertion, takes on a new significance. If “ reasonable cause ” means less than , the “ grave and weighty reasons ” which are alone sufficient at common law to justify one spouse living apart from the other, then the pattern becomes plainer. We have already said that at common law the husband of a deserting wife owes her no duty other than to be ready and willing to maintain her if and so long as she lives with

(g) The provisions of 8. 18 (4) have not been over- looked. This provides that a separation order is not to be made solely on the ground of failure to provide adequate maintenance unless such failure was “ wilful and without reasonable cause “. It might be SUE- ge+ed that, if the view stated above in-the text & correct, s. 18 (4) is superfluous, because s. 17 (on the above view) provides that “ failure’ to maintain ” means ” failure in a duty to maintain “, and therefore there is no purpose in speaking of wilful failure without reasonable causs in s. 18 (4) because the matter is already covered in 8. 17. Therefore, it might be argued, s. 17 must relate to cases where the failure

him. Yet under s. 17 (7) the Magistrate must disregard the husband’s “ readiness and willing- ness .” if the wife has “ reasonable cause ” for living apart. In other words, the husband’s commpn-law position must be disregarded if the wife, though in desertion, has reasonable cause for living apart, and this must involve the view that “ reasonable cause ” may be something 1eBs than would justify the wife’s desertipnl All this therefore inevitably leads us to the view that s. 17 was enacted for the purpose -of defining the husband’s duty to maintain, not in the common-law terms of the duty to maintain and the duty to cohabit being co-extensive, but in terms of whether or not a wife, though technically in desertion, has “ reasonable cause ” for living apart.(g)

However the matter cannot be left at this point without reference to the eight appeals from Magistrates reported in the last four years in which the Supretie Court has sought to interpret s. 17. All were cases where what was alleged was failure or intended failure tc) provide adequate maintenance, and, as will be seen, it will probably require a decisiou of the Court of Appeal to bring order into this restricted but important field of the law.

The cases fall into two categories : first, those in which the Court has sought to interpret the “ reasonable cause ” for living apart in 9. 17 (7) ; secondly, those which have been concerned with the husband’s general duty under the section to provide adequate maintenance.

B. D: INGLIS

(To be continued.)

is not “ wilful ” and “ reasonable cause ” for the failure may be irrelevant. This ia not necessarilv so. A husband may have “ reasonable cake ” and”may not be “ wilful ” in failing in his dutv to maintain in cases where, e.g., he t&&s his wi?e is dead, or believes on reasonable grounds that she does not need maintenance. In such cases the h&band would be in breach of his duty to maintain within the meaning of s. 17, but his breach would not be “ wilful and without reasonable causs ” within the meaning of s. 18 (4). The effect of a. 18 (4) is discussed at length in Inglis, Family Law (1960), 247-260.

Woman’s Island-The Minute Book of the Island known as Woman’s Island. ‘And in Native Land Court (now of course the Maori evidence it was said the Island was called Land Court) must be a mine of information, “ Woman’s Island ” because the. whalers who some useful, some amusing. A correspondent were married to Maori women left their wives has sent us the following extract from 25 South Island Minute Book 105 : “ Hearing in Inver-

there for safety when they went on whaling expeditions ‘.”

cargill 19 June 1928 regarding a partition of an

THE NEW ZEALAND LAW JOURNAL 23 January 1962

OBITUARY Mr Leonard Clifton Huglws

Mr L. C. Hughes, a well-known practitioner of New Plymouth died suddenly on 9 November.

Mr Hughes had for many years been the principal partner of the firm of Hughes, Gray and Co.., which was founded by his uncle, the late Robert Clinton Hughes, in 1870. The firm is therefore one of the oldest legal firms in Taranaki.

One of the outstanding interests of Mr Hughes’ life was the magnificent Pukekura Park in New Plymouth, which owes its genesis substantially to the late R. C. Hughes.

Having regard to the long association of Mr L. C. Hughes and his uncle Mr R. C. Hughes with the profession in Taranaki, it was to be expected that he would possess a valuable fund of knowledge regarding the early history of the profession and its practitioners. In 1955, Mr Hughes delivered an address to the New Plymouth Historical Society, entitled “ Some Glimpses of the Law and Lawyers of Early Taranaki “, the text of which was published in (1955) 31 N.Z.L.J. 87. It still makes interesting reading.

PRACTICAL POINTS

Vendor and Purchaser- Lot on old subdivieional plan -No apparent frontage to public highway-Municipal Corporations Act-- Land Trarhsfer Act.

QUESTION: I am acting for a purchaser under agreement for sale and purchase of a Lot on an old subdivisional plan made in 1858. In 1928, all the Lots were brought under the Land Transfer Act bv the District Land Registrar by means of a compulsoti application under the Land Transfer (Compulsory Registration of Tit es) Act 1924, and the title is still

h limited as to parce a. Access to the nearest public highway is obtained in practice by means of ” A ” Street, but there is no registered deed of dedication nor nroclamation making “ A ” Street a nublic highGay. The fee of ““A ” Street is still vested, according to the Deeds Register, in the 1858 sub- dividing owner, and it is still subject to the Deeds Registration Act, the District Land Registrar not ha&g brought .it under the Land Transfer Act. The Borough Council will not certify that it is a public street.

Mv client is verv much concerned as to the apparent 1ack”of legal access to a public highway. Wo;jd I be safe in advising mg client to accept the title in these circumstances f i may add that ‘I A ” Street is only 18 ft. in width, and there is no registered right of wav aonurtenant to the title.

iiN&ER : As framed, the question is beyond the scone of Practical Points : it is reallv a question for counsel to answer. However, reference to a few cases as to the possible status of “ A ” street may be useful.

“ A ” Street mav be either : (1) A public &set despite its narrowness and

despite the fact the Borough Council will not give a certificate : McLachlan v. Hughes (1904) 25 X.Z.L.R. 221 ; cf. Mayor, etc. of Wellington v. A. C% T. Burt Ltd. [1917]

N.Z.L.R. 659 ; [1917] G.L.R. 389 ; cr (2) A right of way merely, although called a

“ Street “, to which all the various Lots constituting the 1858 subdivision have now annurtenant to them, bv oaeration of the Prescription Act 1832; a”rigk;t of way as to which : see cfarrow’s Real Property in New Zealand, 5th ed., pp. 407, et seq.: cf. Norton v. Will~ms rig391 N.Z.L.R. 1051 ; ri939i G.L.R. 667. - -

._ -

Finally, it may be pointed out that declarations as to user of “ A ” Street made by residents in the locality could be registered against the title to “ A ” Street under the “ old svstem “.

Y

X

Vendor and Purchaser-Vemiov potected pereon zlnder Aged and Infimn Persons Act 1912-Form of Transfer.”

QUESTION: I am aotina for a nurchaser who has purchased a piece of land from -a trust company. I now find that the registered proprietor is an elderly gentleman in respect of whose estate a protection order has been made bv the Supreme Court in favour of a trust company. -

Would you please indicate the requisites as to registration and the form which the transfer will take ?

ANSWER : The, transfer will be executed in the name of the registered proprietor by the trust company, which will sign the transfer on behalf of the vendor. The trust company acts as a substitute for the pro- tected person &in “the administration of his estate : In re Cryer (deemed) (19621 N.Z.L.R. 794; (19521 G.L.R. 642. - -

_ _

The protection order, if it has not already been registered, will require registration against the Land Transfer title, and a sealed copy of the order of the Supreme Court consenting to the sale will have to be produced with the transfer ; these are matters which the trust company will have to attend to.

‘X

23 January 1962 THE NEW ZEALAND LAW JOURNAL

LEGAL LITERATURE

19

Commercial Law in New Zealand, by J. F. NORTHEY, B.A., LL.M. (N.Z.), Dr Jur. (Toronto), and W. C. LEYS, M.A., LL.M. (Second edition), 1961. Wellington. Rutter- worth & Co. (New Zealand) Ltd. Pp. xli 680. Price 6%. In a textbook that seeks to cover the field

in a subject as all embracing as Commercial Law there inevitably arises the question of what should be omitt,ed. The decision once made in the first edition cannot help but be reviewed when the authors or the publishers decide that circumstances require the publica- t,ion of a second edition. In the years that have elapsed between the two editions (in this case almost five years) new legislation ha,s been passed, judgments have been given overriding, elaborating upon or distinguishing earlier judgments and suggestions and criticisms have been made usually urging particular aspects to be treated more fully. Tf provision is made in the second edition for such matters without a compensatory pruning of port,ions of the original text the book grows appreciably in size and if the process is repeated in later editions the danger arises that the book no longer meets the requirements of those for whom it was originally written-in this case those studying and practising law and accountancy who, for reference purposes, need a book in which the main outlines of the law of contract, special contracts, bankruptcy, insurance, arbit,ration and the Chattels Transfer Act are discussed.

In the second edition of their Commercial Law in New Zealand, Messrs Leys and Norbhey have expanded the original text by something like one-fifth. From the viewpoint of the busy practitioner this treatment cannot be faulted. Whatever may be the particular question that

comes up for a quick answer a practitioner is reasonably certain to find a statement thereon in this book. Of particular value is the part dealing with bankruptcy incorporating as it does details of the Bankruptcy Amendment Act 1956 and submissions as to the effect of certain provisions thereof. Bankruptcy is a subject that may conceivably occupy a larger part of t,he lawyer’s time in the years ahead than it has done for the last decade and the more comprehensive treatment given to it in the second edition as compared with the first is well justified.

With the growth in size of the text students may well need to be selective in their use of the book and to receive some guidance as to what are the general principles involved in any particular matter. The very wealth of detail that is so invaluable to the practitioner might lead a student into unprofitable by-ways as far as passing examina#tions is concerned. But this is a very minor qualification and the second edition should be of great help to st,udents both of law and of accountancy.

The format of the work is unchanged from the first edition and the indexing and cross- referencing are good. Some forms and prece- dents have been inserted in respect, of bankruptcy matters, chattels securities and hire- purchase agreements. These, while useful, add to the length of the book and perhaps go beyond the purposes for which it was originally intended.

This new edition can be recommended to all practitioners and students as a book that is a valuable complement to what one might call the standard works on contract, bankruptcy and the other matters dealt with therein.

L.M.P.

-- -____

Self Help-At Old Hill, Staffordshire, a reason, the attempt to erect the lamp in that woman recently celebrated her 78th birthday position was meekly abandoned a’nd another by preventing a lamp standard from being site was selected a few feet further up the erected outside her front door. As workmen road. In this case the exercise of the remedy dug soil to make a hole for the lamp, the good of self-help did not, in the words of Sir Matthew lady shovelled it back again, and after a police- Hale, occasion “ tumults and disorders ” ! : man, the foreman and a member of the firm (1961) 105 Sol. Jo. 792. of contractors had failed to make her see

THE NEW

TOWN AND

ZEALAND LAW JOURNAI,

COUNTRY PLANNING

In Re the Tauranga County Council’s Application _

Town and Country Planning Appeal Board. Tauranga. 1960. 16 February ; 7 .March. _

District Scheme-Operative. district schens-Appli- cation for approval of specific departurePtincipl on which dealt with-Town and Country Planning Act 1953, s. 35.

Application under s. 36 of the Town and Country Planning Act 1953. The Council applied for consent to a specific departure from the provisions of its Operative District Scheme (Mt. Maunganui Section) by altering the zoning of a strip of land containing 20 acres more or ,less being 2.4 chains in width at the northern end of Sections 11 and 12 Block I Te Tumu Survev District fronting Beach Road, Panamoa, ownedY by Percy Edwin Gravatt and June Irene Gravatt from rural to residential. It complied wit,h the requirements of Reg. 35 of the Town and Country Planning Regulations 1954 (S.R. 1964/141).

The Minister of Works gave notice pursuant to s. 42 (2) of the Act that he wished to appear and call evidence in onposition to this application. The owners of the property affected appeared to support the application.

The property under consideration was situate in Paoamoa fronting on to Beach Road, and was in an-area zoned as -&al. The Operative Scheme under consideration became operative on 26 September 1963 so that it became due- for review pursuant, to s. 30 in Sept,ember 1958. It, had in fact been reviewed and publicly notified for receipt of obejctions by 29 February 1960. As part of that review the Council orouosed to zone as residential a substantial block I I

of land formerly zoned as rural running eastward from the Boundary with the Mt. Maunganui Beach Road. The property under considera;tion in this case formed part of this block.

Morgan, for the applicant. M&ill, for the Minister of Works. Vemhaffeelt, for P. E. and J. I. Gravatt (owners of

property).

The judgment of the Board was delivered by

REID S.M. (Chairman). After hearing the evidence adduced, and the submissions’ of counsel and having inspected the property and the surrounding locality the Board finds as follows :

1. It is clear from the evidence that the Council in making this apolioation is doing so in order that it can approve a scheme plan f& the subdivision of this land into ‘79 residential and 15 commercial sections, and so anticipate to a certain extent consideration of the re-zoning of a much greater area. The Board does not consider this appiioation to be the tvoe of application envisaged by s. 36. The intention o?-that &&ion would appear &ZI be to facilitate and simplify alterations of a minor nature to the provisions of proposed or operative district eohemes

without the netessity of going through the more elaborate procedure laid down by s. 29 and Regs. 32 and 34.

This application relates to an area of some 20 acres, aad to grant it would be to approve a fundamental alteration in an existing operative scheme. Tho Board does not hold that the application could not have been made but it is prepared to state that consents to specific departures under s. 35 making maior changes in the atmarent intent of a scheme wilj be veryvolosely scr&ised and sparingly granted. In this narticular case the auestion of re-zoning this land can well await the outcome of the prgposal to re-zone t,he larger area of which it forms part.

2. A great deal of the evidence led was directed to the suitability of the proposed subdivision as if the issue before the Board was the approval or otherwise of this subdivision. This issue wa,s not before the Board but it is prepared to comment on it in general terms.

The proposal is to subdivide a narrow strip of land 83 chains in length by a depth of 2.4 chains into single sections having frontages on to t,he only access road to the foreshore. This is clearlv ribbon develon- ment and as such should be avoided. “It is a reasonable assumpt*ion tha.t the Papamoa area will in time develop into a seaside holiday resort,. A very substantial number of sections have been sold from already approved subdivisions in the locality but the actual dwelling occupancy is very scattered and sporadic.

The Board considers that in planning the future development of this area very careful considerat,ion should be given to the question of whether it is to be developed as a compact separate unit or as a dormitory urban development extension of the Mt. Maunganui Borough.

The application is refused.

Application refused.

Public Trustee v. New Plymouth City Council

Town and Country ‘Planning Appeal Board. New Plymouth. 1960. 12 December. 1961. 12 October.

Change of ue+Exkting use-Different exprembm- Meaning-Application~of etatutory definition-WJiether substantial renovationa and alterations a change of u.ee- Town and Comtry Planning Act 1953, es. 36, 47.

ADDed under 8. 26 of the Town and Countrv Planning Act 1963. The appellant, as trustee if the estate of William Francis Edward McKov owned residential property situated in Molesworth Street, New Plymouth, being that piece of land containing 16.1 perches, being Lot 11, on Deposited Plan 2621. Under the respondent Council’s proposed district scheme, aa publicly notified, this property was designated as part of a proposed off-street parking

(continued on page 23)

ii

IN YOUR ARMCHAIR AND MINE By Scorpio

How to Swear A recent issue of the Solicitors’ ,Jo~cmul

points out that the oath taken by A witness before giving evidence is too often a muttered semi-nullity. “ Hold up t’he book in your right hand and read the words on the card “, says the usher or the County Court bailiff or the clerk of the magistra,tes, or whoever it may be.

- “ I never did like that card “, continues the article. “ It means that the witness looks down. When I sit as coroner, I always ask the witness to hold the testament up and look straight at me. Then I give him the words of the oath myself and he repeats them after me. He may hold my eye or his may flicker. One famous Judge who was with us until quite recently insisted upon the whole Court not only keeping quiet but also keeping still while every oath was administered. I have seen him explode at a barrister who whispered to a colleague while a witness was repeating the oath.

“ In modt Courts the standard is not so high. Policemen bring to their oaths a certain panache as though it were a form of rifle drill. Debt collecting agents whisper it. Frirrhtened witnesses bungle it. The rea.1 essence of the oath is that it is a reminder of the solemnity of the occasion and that it can turn mis-statement into perjury. It can be taken in many ways. B Christian will raise the New Testa- ment and a Jew the Old Testament, a Moham- medan the Koran. A Sikh will use the Granbh. A Chinese will break a saucer. I have heard a child sworn in with-the words : ‘ Now sonny, do you understand that you have to tell me the truth ? ’ and sometimes I have thought the gasp, the blink and the hesitant ‘ Yes ’ one of the most reliable oaths ever taken.

“ A large class of people prefer not to take the oath but to affirm. A recent change ha.s taken place in the law regarding affirmation which is of importance to everyone who has to handle witnesses. Up to now the rule has been (see the Oaths Act 1888, R. 1) that any person who objects to being sworn and states as the grounds of his objection either that he has no religious helicf or that the taking of an oath is contrary to his religious belief, shall be permitted to make affirmation instead. This

has become increasingly common but the essential point is that the option lies upon the witness. The change that has now been made by the Oaths Act 1961. is that the option has been transferred to the Court. ,4_Judge, a Magistrate or a Coroner can now require a witness to a.ffirm. This is one of the numerous st,raws tha’t remind 11s of how much colour ha,s been blown into this country on the winds of change.

“ dccasionally the business of a Court is seriously delayed b-y the a’rrival of a witness who is quite willing to swear an oath but in some unusua,l form. There then develops a hunt for a Koran or a Granth or some other even rarer hook or for a not too expensive saucer. Not every Court is stocked with Korans and saucers. This is where the new Act comes in. To a’void delay, the Court can say to the witness : ‘ You will affirm ‘, t,he Court thus taking the initiative in telling the witness that he will affirm rather than swear. It, w+ll probably save a lot of time but I think we shall all miss those moments of dra,ma when nobody could find a saucer.”

Guardians of the Law In 19% there were only seven xcricts of

Law R,eports and legal commentaries published in England. In those davs the daily neus- leapers merelv drew attention to sensationa, crime and a report of law cases where there was spice and human interest, ,A recent article in the l.ondon Times points out the considerable change that has occurred ia the ,,,, past 33 years. cIt would now appear &it there are :!2 different ty]JeS of IJaw Reports being published in England, some ,weekly,, some monthly, some quarterly, some annually and a few occasionally. Most of these, appear: to have some standing in legal circles. Apart from this entirely, the daily newspapers, particu: larly in London, show an ‘interest in Courts cases apart from the sensational which is emphasised by a certain type of Fleet Street Press. The author of t.he article states as his view that any case of passing interest whether it be of legal or general interest receives, notice in some form of ljrint~. With the large number of Courts sitting almost constantly in England there is a vast quantity of legal decisions to be

ii THE NEW ZEALAND T,AW j-OURNAL 23 January 1962

mentioned, weighed and reported. In this regard it is interesting to note that the All E~land Law Reports are frequently quoted in American Courts of Law and in a recent case in Ghana which reacb.ed the House of Lords all the cases quoted by counsel for the respondent without exception were contained in English reports.

Recollection of Grace Darling During the 1920s workmen carrying out reno-

va,tions at the Black Swan Inn Seahouses (a ifshing village near Bamhurgh) came upon a wooden plaque affised to the ~a.11 of the cellar. It was covered, like the wall, with plaster ; when this was scraped away: the printed name “ Forfarshire ” appeared beneath. The then licensee and tenant of the inn concluded that the plaque had been fashioned out of an oar, or some part of the structure, of the ill-fated vessel which had been wrecked on the Farne Islands on 7 September 1838, nine of the passengers and crew being saved by Grace and William Darling. Thereafterthe plaque properly cleaned, was set up in the bar of the inn “ as an ornamental fixture or signboard ” (to quote the words of the subsequent judgment) : and there it remained until 1957. In that year the Iicensee and tenant, G. R. R. Tait, retired, and on leaving the Black Swan he removed and sold, or purported to sell, the signboard to one David N. Glen (the licensee of another inn in the village) for 25. Glen put up the signboard in his own inn.

The matter came to the notice of the land- lords of the Black Swan who commenced an action (Vaux Associated Breweries Ltd. v. G. R. R. Tait and David N. Glen) in the Alnwick County Court claiming against the first defendant damages for conversion and against the second defendant the return of the signboard, which the plaintiffs claimed as their property. The case came on for hearing in 1959, before his Honour Judge Drabble QC. He found the facts as stated above, and decided that, whatever might have been the history of the matter between the time of the shipwreck in 1838 and the discovery of the true nature of the “ plaque “, while’ it was still affixed to the cellar wall, in the 192Os, the then tenant had affixed it in the ba@ as a kind of “ ornamental fixture “. Whether that tenant would have had the right to remove and sell the plaque it was not necessary to decide, for he had not done so, but had left it in situ when Tait became the tenant and licensee. On .these findings neither Tait nor any subsequent tenant and licensee had the

right to remove the plaque ; by puqorting to sell it in 195’7 Tait had committed a conversion of something which was not his to sell, and the plaintiffs in the case, Vaux Associated Breweries Ltd. were entitled to its return by Glen. Returned it duly was, and the Forfar- shire signboard hangs once more on the wall of the Black Swan bar, with a signed copy of the judgment in a frame above it,

Joint Venture It is refreshing to discover new aspects of

well-established law and the recent case of S&van v. Sullivan, reported ix~ the Australian Lawyer’s Suppkment (July 1961, page 1) does appear to break new ground. The plaintiff was injured in a motor car which was driven by the defendant who was his son. There appears little argument but that the defendant was negligent. It appeared from the evidence that father and son had embarked ’ on a joint venture to burgle a property. The Court was concerned as to whether or not the unlawful venture debarred the plaintiff from succeeding. The judgment of his Honour Judge Amsberg is most comprehensive and although he recites that the problem appears to be a new one he has succeeded in finding considerable authority while not directly concerned with the problem in question, never- theless, helping considerably. The question which the learned Judge at this stage had to answer was possibly a preliminary one and he came to the conclusion that if the evidence showed that the use of the motor vehicle was in pursuance of an illegal purpose and if such illegal purpose was proven then the plaintiff could not succeed.

Bribery and Corruption Recently a gentleman was charged in

the Police Court in Cambridge (England) on a charge of attempting to bribe a traffic officer. The defendant was a Ukranian and he had taken his driving test for the third time and .failed. He then offered the examiner %5 10s. as an inducement to pass him. Naturally the examiner refused and reported the offender. In extenuation, the defendant stated that in the country whence he came bribery was a common practice -and he had thought he would try it in England. He was duly fined ;E15 and costs.

Tailpiece The good old days were when inflation was

just something you did to a balloon.

23 January i962

TOWN AND COUNTRY PLANNING (Continued from page 20)

area. The appellant lodged an objection to this zoning, claiming that the land should be zoned as residential. The objection was disallowed and the appeal followed.

Ewart, for the appellant. Qzlilliam, for the respondent.

The judgment of the Board was delivered by REID &%I. (Chairman). After hearing the evidence

adduced and the submissions of counsel the Board finds as follows :

1. In the prayer to the appeal, the appellant asked that la) the zoninn of the land should be residential. or, ah&natively, -that an order should be made; pursuant to subs. (3) of s. 47 of the Act, directing that the respondent Council should within three months, take under the Public Works Act 1928 the estate, or interest, of the appellant in the said land.

2. The evidence indicates that the house on the uropertv under consideration is in a bad state of repair. ” Apparently the deceased bought the property with the idea of renovating it himself, but he was not able to give effect to that purpose. It also appears that it would cost at least ES60 to out the house into a reasonably habitable condition* and doubt was expressed by an expert witness as to whether such an expense would be justified.

3. It is clear that what the aunellant reallv seeks is the order under s. 47 that th; -respondent Council take the land under the Public Works Act. It was contended by counsel for the appellant that the words “ change of use ” contained in subs. (4) of s. 47 of the Act, must be construed as being in pari mater&z with the words “ existing use ” set out in s. 36 of the Act and that the renovations contemplated by the appehnt are so substantial that they would constitute -a change of use of the property. - It was claimed that in considering the question of whether a change of use under s. 47 is imminent, regard must be given to the definition of existing use as defined by g. 36 and to the words “ substant&d reconstruction or alteration or addition thereto ” a8 occurring therein. The Board considers that this submission is correctly answered by counsel for respondent when he submits that the definition of “ existing use ” given in s. 36 (1) has no application for the purpose of any other section. Section 36 (1) begins : “ For the purpose of this section, the term “;xisting use ’ within the meaning of this section in relation to any land or building “. Therefore, this definition can have no application for the purpose of any other section. If this definition were to be invoked in interpreting any other section of the Act, then clearly the words have read

“ for the purposes of this section ” would ” for the purposes of the Act “. The

words “ existing use ” and “ change of use ” are entirely different expressions. In any case, whether or not the appellant carries out the proposed substantial renovations, the character of the building will not change. ,Its present character is residential, and if repairs are carried out that residential character till enure.

4. Section ‘47 has been ,considered by the Board in other appeals and its interpretation’ was dealt with at length in’its decision on the appeal, Burgess, Fraser and Co. Ltd. v. New Plyniozcth City Council : a decision issued on 6 February 1961 and reported (1961)

1 T. & C.P.A. 154. It is not nronosed to quote that decision, or the earlier decisions -therein riferred to, at anv lenath. The Board has held and will continue to h;ld &at in every case when subs. (4) of s. 47 comes to be considered, the question of the imminence or otherwise of the change of use must be a question of fact. to be determined from the evidence. In this particular case, the evidence shows that the respondent Council has no present intention of taking this land for car-parking purposes for at least the first five years of the scheme’s operation and the appellant has no intention of changing the use of the land from its present residential purpose. The property can continue to be used as a residence for some years to come and no grounds have been advanced for justifying the Board making the order sought.

The appeal is disallowed.

Appeal dismissed.

In Re the Mount Albert Borough Council’s Application

Town and Country Planning Appeal Board. Auc:klantl. 1961. 21 September ; 26 October.

District &hen&e--Operative district scheme-Appli- cation for ape&f& departure -What is public interest- P&ci&s -up&abl~-Town and Co&try Planning Ati 1953, s. 35-Town and Country Planning Regula- tions 1960 (9.R. 1960/109), Reg. 32,(l).

Application under 8. 35 (1) of the Town and’Couutry Planning Act 1953. The departure sought is for :

(a) The changing of the designation of “ Reserve for Government (Railwa.ys Department) Purposes ” to an industrial B 2 zoning of a block of land comprising approximately 3 acres 1 rood .08 perches, being, railway land formerly part Allotment 59, Parish of Titirangi, being,part of the land on Deposited Plan 25831.

(b) By amending the Code of Ordinances. to the scheme by adding to Ordinance 9 (7) provision for an additional industrial zone.

The land in question owned by the N.B. Railways Department was 1,150 feet long by approximately 125 feet #deep and was situated between the new North Road and the North Auckland Main Trunk Railway. It was vacant land which at times has been in an untidy state. The Railways Department informed the Council that the land was surplus. to its operational requirements, and requested that it should be zoned for industrial purposes. ’ It was not competent for the Railways Department itself to make the application so that the Council, having considered the matter, determined to make the application itself. The application was accordingly publicly notified and a number of objections were received, mostly from property owners having frontages on to the new North Road. The Council considered the objections, but decided to proceed with the application. The Board accordingly directed a public hearing of the application in order that the views of the objectors might be placed before it.

Soutllwick, for the applicant. Mmklow, for the Minister of Works. Convw.!.l, for 39 objectors.

24 THE NEW ZEALAND LAW JOURNAL 23 January 1962

Peak, for the Trustees of the Mt. Albert Methodist ChurOh, an objector.

The judgment of the Board was delivered by REID S.M. (Chairman). After hearing the evidence

adduced and ‘the submhions of coun&l, the Board fiuds aa follows :

1. The property under consideration is a strip of land bounded generally on the north by the railway line, on the south by the New North Road, on the east by a commercial zone and a car park and on the west by a small block of land zoned as residential, which is vacant land at present.

2. In considering an application under s. 35, the Board is reouired bv Ren. 32 of the Town and Countrv Plan&ng -Kegulati&s 260 (S.R. 1960/109) to have reEa.rd to nublic interest. Red&ion 32 (1) reads “ Public inierest to be paramost. In the .$anting or refusal of anv consent to departure from an-v provision of a &strict scheme, the public interest shall be the naramount consideration “. The Question of what is {ublib interest within the meaning of the regulations was canvassed during the course of the hearing, but it is not proposed in this decision to cover all the submissions made. The Board considers that when construing Reg. 32, the public interest calling for consideration must be related to the interests of the inhabitants of the City, Borough or County whose scheme is under consi eration. It is not the interest of the public of Ne lf Zealand as a whole, for clearly their rights cannot be affected by what is a purely local question, nor is it considered the words should be given a narrow construction so as to confine them as relating only to the interest of a comparatively small numerical section of the inhabitants more directly affected by the ljroposed departure.

3. In evidence-a town-planning officer of the Auckland Regional Authority gave aa his opinion that the most desirable use for the la,nd would be a public open space. That might well be correct but the question before the Board in this application is not what is the most appropriate zoning of this particular area but only whether it should continue to remain zoned as reserved for railway purposes or whether the zoning should be changed tb a special tvwe of industrial zoning. It is quite clear that the laid will not be made a;ailable ai public open space. The area of the Mt. Albert Borough comprises 2,430 acres approximately and of this area the Borough Council owns 110 acres designated as recreational reserves and it is shortly acquiring a further 20 acres. In those circumstances it would not be justified in endeavouring to obtain the ownership of this land as a public op& space, and in any Gase the circumstances are such that it could not obtain it for that purpose so that the suggestion that a public open space is the most desirable use for the land can be of academic interest only. The real question is whether this land should continue to lie idle and vacant or whether it should be put- to some revenue-producing use. The expert evidence is that it is not desirable for residential use because of its close proximity to the railway line and the new North Road.

4. In the circumstances, the Board considers that the public interest is best served by this vacant land being pilt to some useful purpose, subject to appropriate controls. Thu Hoard hereby come&s to a specific departure from the provisio& of the Mt. -Albert Borough Council’s operative district scheme by :

(A) Changing the designation of ” Reserve for

Government (Railways Department) Purposes ” to “ Industrial B 2 ” zoning of the land hereinbefore described, and

(B) By amending the Code of Ordinances by adding to Ordinance 9 (7) provision for an additional industrial zone aa follows :

Induatriul R 2 Zones Predominant Usd’:

(a) Warehouses ‘and bulk stores but not including wool or hide stores or bulk stores for fuel, oils or lubricating oils.

(b) Commercial garages including premises for the sale of fuel and accessories for motor vehicles but not including machine shops or engineer-. ing workshops.

(c) Clothing factories. (d) Residential accommodation for a proprietor

or employee whose duties require him to live on the premises.

Codtbnal Uses : Any industry of a light nature.

Provided that : the Council shall not permit any use whioh would

(i) cause to be emitted any smoke, fumes or noise likelv to affect the amenities of any adjoining res”identia1 area,

(ii) by reason of materials, oonstruotion or design, tend to detract from the amenities of the neighbourhood.

special Conditions relating to both “ Pre&m&ati and Conditional Usea ” in an industrial B 2 zone :

1. No use of any land in a B 2 zone shall cause to be emitted any smoke, fumes or noise likely to affect the amenities of any adjoining residential area.

2. The whole of the area on each site which is not required for the time being for (the erection of buildings), drives, parking space, off-street parking or loa,ding, and unloading areas, except such area8 as may be specifically exempted by the Council shall be laid out and planted in lawns with trees or. shrubs before or contemporaneously with the erection of any buildings on such site. The layout of lawns and the planting of trees and shrubs and the maintenance of the whole to be carried out in all things at all times to the approval of Council.

3. All buildings shall conform to Type 1 or Type 2 construction as nrovided in Part VII of the Bvlaws I

and shall not by reason of materials, construct&n or design tend to detract from the amenities of the neighbourhood and shall comply with the bulk and location requirements aa set out in Item 5 hereunder.

4. The site surrounding buildings shall at all times be kept clear and free of all trade wastes, packages and materials.

6. The minimum frontage of any subdivision or of any land held under a separate lease shall be 150 feet. Bulk and Location Repmwnents :

(a) Maximum building height 20 feet above the main street kerb level immediately fronting any building.

(b) Front yards shall have a depth of at least 30 feet and be landscaped as directed by the Council.

(c) Side yards shall be a depth of at least 10 feet.

(C) By amending the code of ordinances by adding to Ordinance 10 (3) (ii) (a) a pro&o that all sites in industrial B 2 zone shall have a minimum frontage of 150 feet.

Order accordingly.

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