LAWJOURNAL. The New Zealand THE GILFEDDER AFFAIR - ANOTHER PERSPECTIVE. 6 NOVEMBER 1973 No. 20 -

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1 The New Zealand LAWJOURNAL 6 NOVEMBER 1973 No THE GILFEDDER AFFAIR - ANOTHER PERSPECTIVE Whatever sympathy one may have felt for Sergeant Paul Gilfedder following his conviction in the Christchurch Magistrate s Court on 25 July for assaulting Paul Snowdon, the decision of the Police Appeal Board under the chairmanship of J. D. Murray Esq., S.M., upholding Gilfedder s dismissal from the Police Service would have been received by most practitioners with something nearing a sense of relief. The facts of the case initially received wide publicity but, from the discussions of the case that I have heard, they have too often been conveniently thrust into the background. Discussions on law and order have, of late, often been charged with considerable public emotion, and human nature being what it is, any suggestion that one should look carefully at the facts giving rise to the subject of discussion is often ignored or rejected. And those who dare start actually recounting those facts are, unfortunately, often regarded as being rather tiresome. But when one considers the facts of the Gilfedder case what emerges very clearly is that (quite contrary to Sergeant Gilfedder s assertion that the issue was principally one of law and order) the issue at the heart of the affair in so far as his conduct was concerned was simply whether the Rule of Law was to prevail. On 31 May, Sergeant Gilfedder approached a group c;f mouths m the Bishopdale Shopping Centre at Christchurch. As he approached the group and asked them to move on, one of them is alleged to have shouted, You go and get f-d: you can t touch me, you I.--t. It has not been established just who ma& that remark, but shortly after it was made Snowdon said to the constable, I confess, it was not me. The boy was then seized by the police, thrust into a police car and conveyed for about nine- tenths of a mile in the car, a journey during the course of which Sergeant Gilfedder allegedly pulled his hair, thrust his head between his knees, twisted his arm up his back, and punched him on the arm. Snowdon was not arrested prior to being subjected to this assault, and at the end of the ride he was put out of the police car and left standing on the road. Gilfedder denied assaulting the boy but admitted that he had, to a certain extent, meted out summary justice. In the Magistrate s Court Gilfedder argued, inter alia, that if there had been an assault it was a purely technical one. However, W. F. Brown Esq., SM., rejected the sergeant s version of what occurred in favour of that of Snowdon and was not inclined to the view that it was a purely technical assault. On appeal to the Supreme Court against his conviction it was again argued on Gilfedder s behalf that if there was an assault it was a purely technical one justifying a discharge without conviction under s. 42 of the Criminal Justice Act. However, this contention was firmly rejected by Mr Justice Macarthur, who concluded:... J do not think, however, it is a case where the Court could properly apply s. 42. The circumstances are too serious. It is clear from the many published accounts of the case that Gilfedder was subjected to considerable provocation by an arrogant, insolent yougster, who, at 14 years of age, had not only acquired a list of conviction3 in the Children s Court for serious crime, but had also earned the reputation of being almost uncontrollably antiauthority. Gilfedder, on the other hand, had earned the respect and confidence of his colleagues during his 14-year period of service as a police officer, and was regarded as a responsible officer who could be relied upon when the going

2 458 THE NEW ZEALAND LAW JOURNAL 6 Nouember 1973 was tough. But these factors, although liable to rouse one s emotions in favour of Sergeant Gilfedder, provide neither an excuse nor an explanation for his actions. As an officer of the law his responsibility was to uphold the lawinstead, by his conduct, he showed an arrogant and inexcusable disregard for it. And this was not simply the case of the old-fashioned policeman who would give a potential offender a belt over the ear and then report to the boy s father so the lad would get another belt [when he got home] (a description given by Paul Snowdon s father in a press interview). The whole incident smacks of punishment and revenge rather than an act done in pursuit of the correction and discipline of the boy. Nor was it a case where a child received summary justice following the commission of some offence. It was never proved that Paul Snowdon committed any offence immediately prior to Gilfedder assaulting him; all the evidence established was that he made a cheeky remark after some other person directed obscene abuse at the sergeant. In convicting and fining Gilfedder, not only was the learned Magistrate confirming the maxim that no one is above the law, he was also upholding the Rule of Law, and any society which ab andons those principles is travelling the short road to tyranny and oppression. There will be few lawyers and, I imagine, few policemen, who will doubt that Gilfedder should have been made answerable to the law, but what of his suspension and subsequent dismissal from the force? His suspension has raised the question as to the justice of suspending a policeman-especially one witth family responsibilities-without pay pending the deterrnination of a charge brought against him. This situation is not confined, of course, to the police, suspension without pay being a fact of life throughout the public service. Gilfedder argued that his suspension from early June to July caused his family considerable hardship and placed him in an embarrassing financial position. As the Police Act and Regulations are presently worded the Commissioner has a discretion whether or not to suspend an officer from the Police, but if he decides to suspend he has no discretion as to whether,that suspension should be with or without salary. And, of course, the Commissioner cannot easily avoid the dilemma he must often be faced with as a result of this legislative limitation on his powers simply by deciding not to suspend. In many cases, and I have no doubt the Gilfedder case was certainly one, where the Commissioner is faced with serious allegations against a member which are supported by evidence and which raise questions as to his suitability to remain an active member of the Police, the Commissioner has a duty to his Department, the Government and the public, to intervene without delay to prevent that person from exercising the very wide powers he enjoys by virtue of his office. And, as in the Gilfedder case, where the member against whom allegations are made also holds rank in the Police, questions of administrative efficiency, morale, and confidence within the force can only operate to make the need to suspend more pressing. In the Gilfedder case Commissioner Sharp, in suspending Gilfedder, was simply acknowledging the responsibilities of his office. But the considerations mentioned above which must necessarily be involved in the determination to suspend a member of the Police, are so special to that department that I would suggest that a strong case exists for extending the Commissioner s powers so that he can suspend on full pay at his discretion. Happily, the indications are that this step may soon be taken. On 27 July the Attorney-General is reported as having said in Parliament that Sergeant Gilfedder was faced with intolerable provocation and that there were moves to have legislation introduced to give police powers to lay charges on groups involved in this. type of situation. With respect, I cannot agree that Gilfedder was subjected to intolerable provocation. It may well have been provocation that a member of the public may have had difficulty in dealing with, but Gilfedder was specially trained and had had years of experience in dealing with just the type of situation with which he was faced. The provocation was considerable, but to say it was intolerable is to ignore the high standards of conduct and training that have been a feature of our police service for many years. As to the moves to introduce new legislation to deal with group situations, it is indeed difficult to anticipate the type of legislation that the Attorney-General had in mind, especially in view <of the fact that it was well publicised earlier in the year that the Police Department itself considered it had adequate powers to deal with bikie and sirnilar groups of marauding youths. But there is perhaps one area in which the police have found themselves at a disadvantage for a number of years-and that is in relation to their dealings with children. The police have, by their own instructions, provided that children are not generally to be arrested for the commission of criminal offences but instead are

3 6 November 1973 THE NEW ZEALAND LAW JOURNAL 459 to be delivered into the custody of their parents, who are to be informed of the circumstances of the alleged offence. The law, of course, makes no distinction between youthful offenders and adults in so far as the exercise of a police officer s power of arrest is concerned. But the police have traditionally been concerned for the welfare of children and the establishment by that department of a youth aid scheme a number of years ago is clear evidence of that concern. The object of the scheme is to keep children out of custody and out of the Courts as much as possible, and to ensure that in each individual case all alternatives are exhausted before a child is prosecuted for a criminal offence. The policy under the scheme is to avoid reaching a decision as to whether any particular child will be prosecuted before detailed inquiries have been carried out into his previous history, and his family and school background. Only when those matters have been canvassed by the police in conjunction with the Social Welfare Department is the decision to prosecute made, and then only after consideration has been given to a recommendation by the Social Welfare Department and the Youth Aid Officer as to the appropriate course of action. Thus, in any particular case of criminal misconduct by a child the decision to arrest has, to a large extent, been taken away from a constable by the Police Department s internal instructions. In most cases this will not prove to be of any great moment because most parents will be very grateful that the police have, at their own instigation, placed their child s best interests so high on their list of priorities. But what of children whose parents do, not co-operate? In that situation the police can be placed in a very embarrassing position. And not only are they embarrassed. Only too often is their good work destroyed by a foolish parent who decries a constable s efforts in the presence of the child and by so doing undermines his authority. And, of course, the constable who obeys the departmental instructions and does not arrest a child but simply takes him to his home is exposing himself to civil liability for the torts of a false arrest and imprisonment. Perhaps in this area there is room for legislative reform. The police should, I would suggest, be given statutory power to take a child into custody for the purpose of delivering him into the custody of his parent or guardian where the child is reasonably suspected of having committed an offence. But the law should not be extended beyond that. With certain exceptions the custody and possession of children is, by the Guardianship Act, vested in the child s parents or guardian. By the Child Welfare Act the, police have certain powers in relation to any child where, inter alia, the child is not under proper control. These powers are, I would suggest, as far as the law should go in allowing the police to interfere with the conduct of children whilst they are away from their homes, unless a child is reasonably suspected of committing an offence. To give the police greater powers than these could place young peopie in an intolerable position. Sergeant Gilfedder s conviction and dismissal from the Police Force prompted a wave of publice indignation. There is, of course, ample evidence to support the assertions that were often made that the sergeant was a fine policeman with a very creditable record. Indeed, I would go further: from personal knowledge I know him to be a very fine person. But he was convicted of a serious assault on a 14-year-old boy whose only crime was to have a bad reputation, to be with a group-one of whom swore at the sergeant-and to retort, I confess, I didn t do it. The boy has vanously been described as criminal, insolent and anti-authority. But he is only a boy and society as a whole has some responsibility to. help the Paul Snowdons within it, and that duty is not discharged by the sort of cruel and heartless public condemnation that was directed at this boy-and by implication at his parents. Its only purpose was to destroy, not help. The boy acted badly, but he did not deserve to be assaulted, and then publicly ridiculed, abused and condemned as he was by the disclosures that were publicly made about him after the Cour: hearing on 25 July. It is ironical that when so many were so ready to condemn Paul Snowdon and treat him to nothing but scorn and contempt, the very organisation that he was SO ready to ridicule on 31 May at the Bishopdale Shopping Centre was one of the few to treat him with the dignity and respect that a lbyear-old is entitled to. But then the quiet, confident and responsible way in which the Police Department under the leadership of Commissioner Sharp has responded to irrational public outcries over what are considered to, be law and order issues has come to be accepted as a matter of course. The police have consistently, over the past three years, provided a buffer between the vocal majority and the minority groups that the majority would so dearly like to backhand. And only too often, unfortunately, have the police

4 460 THE NEW ZEALAND LAW JOURNAL 6 November 1973 been forced into this position by politicians playing puddle ducks. It may be that some good may eventually come out of the Gilfedder affair. There are real deficiencies in a society that so conducts itself that it just has not the time to consider rationally the problems of its young. And those deficiencies come close to being a social sickness when, after young people s problems manifest themselves in anti-social conduct, that society is still too over-preoccupied with the pursuit of its material wants to take a good look at itself-and prefers instead to lay the fault at the door of a 14-year-old boy. Is that what the Gilfedder affair was all about? R. A. MOODIE (a) Barrister, Senior Lecturer in Law at Victoria University of Wellington, and formerly Inspector, New Zealand Police. SUMMARY OF RECENT LAW AGENTS-LAND AGENTS Licensing-Qualification of apph cant-member of a firm that is a licensee-whether firm (as distinct from its members) has legal personality for purposes of licensing-land Agents Act , S. 4. The respondent was granted a licence to carry on the business of a land agent under the Land Agents Act He applied for the licence on 28 June For a period of more than two years prior to that date he had carried out the functions of a land agent and been a member of a firm carrying on business under the firm name of Bunbury Land & Estate Agency. However, until 10 August 1970 T. N. O Brien had held a land agent s licence expressed to be on behalf of the firm named Bunbury Land & Estate Agency. When the licence was granted the respondent had not been a aember of the firm. On 10 August 1970 that licence had been transferred to T. N. O Brien on beh alf of the firm Bunbury Land & Estate Agency. The respondent had then been listed as a partner in the firm. When the respondent applied for a licence on 28 June 1971 he grounded his qualification on that set out in s. 4 (3) (a) (iii) of the Act which allows the Court to grant a licence to a person who has during the two years immediately preceding the application acted as a land agent and been a member of a firm that is a licensee. The Magistrate granted the application on the basis that the respondent had been a member of the firm for the required time and that the slip in not amending the constitution of the partnership in respect to the licence was an honest omission. On appeal by way of order nisi, Held, The question was whether the respondent had for the required period been a member of a firm that was a licensee. For the respondent to succeed there would have to be something in the statute giving to a firm as distinct from its members a legal personality, even though its capacity in that respect might be qualified in accordance with the scope and intendment of the statute, namely, for the purposes of licensing. This was not the case. (Capararo v. Land Agents Supervisory Committee [1966] W.A.R. 189; Cha# and Hay Acquisition Committee and Others v. J. A. Hemphill and Sons Pty. Ltd. (1947) 74 C.L.R. 375, $er Latham C.J. at p. 385, and Williams V. Hursey (1959) 103 C.L.R. 30, per Fullagar J. at p. 52, referred to.) Per Wickham J.: It also seems to follow that as soon as a firm changes its members either by addition or by retirement, the new firm even though carrying on the same business under the same business name, is, in the absence of the transfer of the licence, no longer a firm on whose behalf a licence is held, and in relation to that firm the m embers of it are not members of a firm that is a licensee, and that this would also apply to those who were members of the business organisation before the change. Land Agents Supervisory Committee of Western Australia v. Carlson [1973] W.A.R. 95. CIVIL AVIATION-BREACH OF CIVIL AVIA- TION REGULATIONS 1953 EEection of trial by juryaupreme Court jurisdiction to convict. Civil Aviation Regulations 1953, reg. 18 (8), Summary Proceedings Act 1957, s. 66 (5). The appellant was charged with breaches of the Civil Aviation Regulations 1953 and the penalty therefor came within reg. 18 (8) which provides where there is no specific penalty provided the offender shall be liable to a fine not exceeding $400 or imprisonment for a term not exceeding six months. Pursuant to s. 66 of the Summary Proceedings Act 1957 the appellant elected trial by jury and was convicted and fined $100 on one count and $200 on each of two other counts. It was contended that the Supreme Court had no jurisdiction to impose any penalty at all. Held, In order to give effect to the requirements of s. 66 (5) of the Summary Proceedings Act 1957, reg. 18 (8) of the Civil Aviation Regulations 1953, after a person has elected trial by jury, must be read as shall be liable on conviction to a fine, etc.. R. V. Matich (Court of Appeal, Wellington, 2, 11 July McCarthy P., Richmond and White JJ.). CRIMINAL LAW-APPEAL TO THE COURT OF APPEAL Misdirection - Znsuficient direction - Observations on failure to disclose explanation before trial-omission to state that accused s pre-trial statement had been curtailed on legal advice-new trial. Practice- Misdirection-Criminal proceedings-observations on failure to disclose explanation before trial-omission to state that accused s pre-trial statement had been curtailed on legal advice-new trial. The appellant was convicted by a jury of receiving 22 gallons of paint, knowing at the time that the paint had been dishonestly obtained. On appeal, the principal contention was that the accused s defence had not been sufficiently put to the jury. On each of two occasions certain men had visited three separate stores and obtained quantities of paint by falsely representing

5 6 November 1973 THE NEW ZEALAND LAW JOURNAL 461 they had authority to charge the same against a firm. The annellant was not identified as being one of those men. b;t one witness said he recognisea the men as all deing employed by a firm of paynters. The appellant worked for that firm and was the driver of one of its vans. The am&ant admitted being in possession of 18 gallons of paint found in a van, and another 4 gallons were found at the premises where the appellant lived. When the appellant was cautioned he asked to see his solicitor. He was in the process of making a statement when his solicitor arrived and stopped him. At the trial he gave an explanation of the method by which he came into the possession of the paint, but the explanation did not appear in the partial statement. The trial Judge in his summmg up suggested that the jury could disbelieve the appellant s version given at the trial because it did not appear in the earlier statement. In so doing he did not refer to the fact that the accused had not completed the earlier statement because of his solicitor s advice. Held, 1. A Judge in summing up should put to the jury clearly and fairly the contentions on either side, omitting nothing so far as the defsnce is concerned of the real matters upon which the defence is based, but need not traverse every detail. (R. v. Clayton-Wright (1948) Cr. App. R. 22, 29, applied. Broadhurst v. The Queen [1964] A.C. 441, 464, and Kelsey v. The Queen (1953) C.R. (Can.) 119, 126, referred to.) 2. Observations upon the failure of the accused to disclose an explanation prior to the trial have to be made with care and fairness to the accused in all the circumstances of the case. (R. V. Hill [1953] N.Z.L.R. 688, and R. v. Foster [1955] N.Z.L.R. 1194, applied.) 3. The summing up was inadequate in the particular circumstances and that inadequacy may reasonably be considered to have brought about the verdict. (R. v. Cohen and Bateman (1909) 2 Cr. App. R. 197, 207, and R. v. Haddy [1944] 1 K.B. 442, applied.) Conviction quashed and a new trial ordered. R. v. Ryan (Court of Appeal, Wellington, 9, 30 July McCarthy P., Richmond and White JJ.). CRIMINAL LAW-BREACH OF PEACE Police oficer arresting on reasonable apprehenjion of breach of peace-grounds for apprehension--police Oflences Act 1927, s. 77. Apfieal in summary jurisdiction-no appeal lies to Court of Appeal on questions of fact. Summary Proceedings Act 1957, s Leave had been granted by the Supreme Court pursuant to s. 144 of the Summary Proceedings Act 1957 to appeal against a decision of the Supreme Court affirming a conviction in the Magistrate s Court of an offence under s. 77 of the Police Offences Act 1927 of assaulting a constable in the execution of his duty. A disturbance was caused st a pplitical meeting in Christchurch by organised intervention by people who occupied a block of seats. After issuing warnings the chairman asked the police to remove the persons concerned. The constable who had been watching the appellant and thought he was one of the principal troublemakers cautioned him. The appellant contitiued to blow a trumpet and when asked to leave refused. The constable then seized him and the appellant struck him. The defence was that the constable ~~.~~..~. was not acting in the execution of his dutv as he had no reasonible apprehension that the& would be a breach of the peace and could not therefore arrest without warrant. Held, 1. In every case it is a question whether on the particular facts there were reasonable grounds that there was a real possibility of a breach of the peace occurring. (Piddington v. Bates [1960] 3 All E.R. 660, 663, applied. Burton v. Power [I9401 N.Z.L.R. 305; and Pounder v. Police [ N.Z.L.R. 1080, referred to.) 2. Once the facts are proved on which an qpprehension af a breach of the peace could reasonably be based, then whether a constable was right in so apprehending is a question of fact, not of law. and cannot be reviewed by the Court of Appeal. (Police v. Anderson [I%?] N.Z.L.R. 233, 241, applied.) 3. A police officer may take into account, when deciding a breach of the peace is likely, the recent history of other meetings at which the same or highly contentious issues were canvassed. Police v. Peek (Court of Ap eal, Wellington. 6, 11 July McCarthy P., RX XTI ond and White JJ.). CRIMINAL LAW-EVIDENCE AND PROOF Who is an accomplice-cor+oboratioti of accomplice-warning to ju7y. The appellant had been convicted of the crime of dissuading Mrs F., a witness, by a payment of money from giving evidence in a criminal matter. The main around of appeal was that Mrs F. was an accomplice f% the pge of the rule relating to corroboration, and that the trial Judge failed to give the customary warning relative to the evidence of accomplices. Held, 1. There are three categories of per&s who are- accomplices for the purposes of the rule relating to corroboration: (a) Persons who are particeps criminis whether as principals or accessories before or after the fact; (b) receivers giving evidence, on the trial of thieves from whom they had received stolen goods; (c) evidence admitted against persons charged with specific offences of identical crimes committed by them on other occasions as proving system and intent to negative accident. (Davies v. Director of Public Prosecutions [1954] A.C. 378; [1954] 1 All E.R. 597, and In re Moke Ta ala [1956] N.Z.L.R. 474, applied.) 2. A fourth category in which a watning should be given is when a co-accused giving evidence on hi own account implicates an accused. (R. v. Te Whiu [1965] N.Z.L.R. 42$ referred to.) 3. For a person to be particeps crimrnis he must be within s. 66 or s, 71 of the Crimes Act Although in case8 where a witness is not an accomplice but was close to the periphery of the crime, it may be prudent in a narticular case for a Judge in the exercise of his dis- &e%on to warn of thi dangers inherent in accepting that evidence, although there is no Fequirement by law to do so. R. v. Terry (Court of Appeal, Wellington. 14, 21 December Turner P., McCarthy and Richmond J J.). CRIMINAL LAW - PROCEEDINGS PRELIMI- NARY TO INDICTMENT Committal for t&?-non-compliance with statutory procedure iti first instance-subsequent compliance-committal validsummary Proceedinp Act 1957, ss. 168, 204. This was an appeal agamst a conviction for murder and is reported on the question of law as to the validity of the committal of the a+lant in accordance with the requirements of s. 168 of the Summary Proceedings Act After the taking of the evidence for the prosecution the Magistrate considered and rejected a submission that there was no case to answer. Counsel for tlie accused stated that he did not propose to call any evidence, whenupon the Magistrate said- The accused is committed for trial,at the sitting of the Supreme Court at Hamilton on 14 May 1973, and then left the Bench. Eighteen days later the accused was brought before the same Magistrate, who reiterated that he intended to commit the appellant for trial. The relevant words

6 462 THE NEW ZEALAND LAW JOURNAL 6 November 1973 in s. 168 (1) (a) were then read to the accused and he was asked to plead. Counsel, after reserving all rights, said the appellant would plead, and the appellant pleaded not guilty. The Magistrate then committed the accused for trial and endorsed the information. Held, 1. Section 204 of the Summary Proceedings Act 1957 cures any defect, irregularity, omission or want of form unless the Court is satisfied there has been a miscarriage of justice, and the cases decided prior to its enactment in must be read subject thereto. 2. If the original committal had been made without jurisdiction the Magistrate was not fun&us oficio and could still ensure compliance with s. 168 (1) (a) at a later date. (R. v. Norfolk Justices ex p. Director of Public Prosecutions [1950] 2 K.B. 558; [195,0] 2 All E.R. 42, and S. v. Recorder of Manchester [1971,] A.C. 481; [1969] 3 All E.R. 1230, applied.) R. v. Kestle (Court of Appeal, Wellington. 9, 10, ll, 30 July McCarthy P., Richmond and White JJ.) CRIMINAL LAWSENTENCE Previous convictions guide to character of prisoner --Sentence must have regard to the particular offence and not be increased merely by reason of past convictions so as to punish twice for the same offence. The appellant, who had had previous convictions for assault, wilful damage and 15 charges of burglary, was convicted on a charge of aggravated robbery and sentenced by the Supreme Court to 10 years imprisonment. On appeal against that sentence, Held, 1. Previous convictions may be looked at for the purpose of establishing the prisoner s character and assisting to determine the appropriate punishment for a man of that character for the particular offence. (R. v. Casey [1931] N.Z.L.R. 594? applied.) 2. Primary regard must be had to the intrinsic nature and gravity of the offence charged and sentence must not be increased merely because of past convictions so that the prisoner is thereby punished twice for the same offence. R. v. Power (Court of Appeal, Wellington. S, 17 August McCarthy P., Richmond and Beattle J J.). CRIMINAL LAW-TRIAL OF INDICTMENTS Application for separate trials - Two persons charged on the same indictment, one with murder, the other with aiding, abetting, inciting, counselling and procuring the other to murder. One R. was charged with murdering her son. McKewen was charged on the same indictment with the murder of the same child, of which he was the natural father,. by aiding, abetting, inciting, counselling and procurmg R. to murder the said child. McKewen appealed against the order of the trial Judge refusing an order directing a separate trial of the count against him. Counsel agreed that the Crown s case against McKewen was really an instance of the old common law charge of being an accessory before the fact. Held? 1. Generally the principles to be applied to an application for severance of a count of counselling or procuring are the same as those to be applied to one of aiding or abetting or where principals are jointly charged. 2. The principles stated in R. v. Gillies. and. lorgensen [1964] N.Z.L.R. 709 have apphcation to all requests for severance. (Youth V. The King 1945 W.N. 27, applied. R. v. Buggy (1961) 45 Crim. App. R. 298, and R. V. Essex [1963] Crim. L. Rev. 786, referred to.) 3. Where a charge is truly of the accessory before the fact type, the Court should examine the facts to ensure that there will be no miscarriage of justice by a joint trial, and should consider whether the charge should be recast to eliminate particulars taken from s. 66 of the Crimes Act 1961 which do not apply. (R. V. Mc- Kewen (Court of Appeal, Wellington. 16, 19 July McCarthy P., Richmond and Macarthur JJ.). HIRE PURCHASE - NATURE OF TRANS- ACTION Lease of motorcar-car sold by dealer to finance company-lease by finance company to user-giving credit to user for trade-in value of user s own car traded to dealer-composite transaction void-user unable to recover moneys from dealer-hire Purchase and Credit Sales Stabilisation Regulations 1957, regs. 2,. 8 (b) and 10. G. desired to trade-in his old car with the respondent for a later model second-hand car. The value of his trade-in would not cover the minimum deposit required on the later model and he was persuaded to enter into a three-year leasing arrangement through a finance company. G. was informed that the only difference between a hirepurchase agreement and a leasing requirement was that the latter required a smaller deposit and lower monthly payments and that at the end of the lease hz would be able to buy the car from the finance company for $50 to $100. The finance company prepared a leasing agreeement between the finance company as bailor and G. as bailee and this was signed by G. The respondent s representative gave to the finance company a change of ownership papers relating to the leased car and received a cheque from the finance company for the difference between the trade-in value of G. s car and the purchase price of the leased car. The finance company gave G. credit for the trade-in value of his car. The representative of the finance company also told G. he would be able to purchase the leased car for $50 to $100 at the end of the lease. The lease provided at the end of the term the finance company would be entitled to the residual value of the car which was fixed at $50, and contained a declaration by G. as bailee that there was no contract or agreement under which the property in the car would or might pass to the bailor. It also contained provisions for fixing the market price of the car at the termination of the lease, and if the market value was less than the residual value as fixed, the bailee would pay the bailor the difference and vice uersa. After paying nine monthly instalments, as a result of legal advice G. claimed from the respondent and the finance company recovery of the value of his trade-in car, together with the rent paid for the leased car and the cost of repairs to the leased car. In the Magistrate s Court and on appeal to the Supreme Court it was held that G. could not recover from the respondent. Held, 1. The sale of the tradein car to the respondent, the sale of the leased car by the respondent to the finance company, and the lease by the finance company to G. were interdependent and the whole arrangement was a composite transaction. 2. The composite transaction was prohibited by reg. 8 (b) of the Hire Purchase and Credit Sales Stabilisation Regulations 1957 and was void because of the common purpose of all three parties that the appellant would be able to purchase the leased car at the termination of the lease. (Credit Services Investments Ltd. v. Quartel [1970] N.Z.L.R. 933, referred to.) 3. The oral statements made to G. concerning the purchase of the leased car were not intended to be a contractual term and the tripartite transaction was not a hire-purchase agreement as defined in the regulations and not within the ex-

7 6 November 1973 THE NEW ZIULAND LAW JOURNAL 463 press prohibition contained in reg The parties intended a real sale of the leased car by the respondent to the finance company followed by a real lease of the car to G. 5. If G. could be regarded as a prospective buyer within the definition of buyer in reg. 2, the right to recover under the proviso to reg. 10 was against someone who was in prospect as a vendor, namely the finance company and not the respondent. Grey v. Kingsway Autos Ltd. (Court of Appeal, Wellington. 18 June, 30 July Mc- Carthy, Richmond and White J J.). LANDLORD AND TENANT-REPAIR Breach of CovenantSpecific performance-./urirdiction to make order requiring landlord to repair- Circumstances in which order will be made. Where a landlord is in breach of a covenant to repair, the Court has jurisdiction to make an order requiring him to do specific work pursuant to the covenant. Although it is a jurisdiction which should be carefully exercised, there is no reason for refusing to make an order for specific performance where the landlord is plainly in breach of the covenant to repair and there is no doubt as to what is required to be done to remedy the breach. (Dictum of Lord Eldon L.C. in Hill v. Barclay [ All S.R. Rep. at 380, 381, distinguished.) Jeune and Others v. Queens Cross Properties Ltd All E.R. 97 Ch. D. MAS~TkA~D SERVANT - CONTRACT OF Termination - Notice - Withdrawal of notice - Unilateral withdrawal-notice by em$oyee terminating contract-notice accepted by employers-whether employee thereafter able to withdraw notice unilaterally before expiry date. On 8 January 1973 an employee gave his employers one month s notice terminating his contract of employment, the notice to have effect from 1 January On 10 January the employers accepted the notice. Two days later the employers summarily dismissed the employee, who was paid his wages until the end of January. On a complaint of unfair dismissal, an industrial tribunal awarded the employee cl,400 compensation. The tribunal assessed the compensation on the assumption that at any time during January the employee could have withdrawn his notice and thereafter remained permanently in the service of the employers. The employers appealed against the amount of compensation awarded but conceded that the employee was entitled to the sum of g Held, Where one of the parties to a contract of service gave notice determining the contract, that party could not thereafter unilaterally withdraw the notice. Although it was always open to the other pary to agree.to the withdrawal of the notice, in the absence of agreement the notice would stand and the contract would terminate on the effluxion of the period of notice. (Dictum of Bucklev L.T. in Decro-Wall international S.A. V. Practit;on>ri in Marketing Ltd. [ All E.R. at 235, applied.) Harris & Russell Ltd. v. Slingsby [1973] 3 All E.R. 31. MASTER AND SERVANT - INDUSTRIAL IN- $IX&ES AND WORKMEN S COMPENSA- Benefit payable on death of workman-correct method of calculating lump sum-workers Compensation Act 1956, S. II (1). This decision lays down the correct method for calculating a lump sum payment for compensation in respect of the death of a worker pursuant to s. 11 (1) (a) of the Workers Compensation Act 1956, which provides that the compensation shall be a sum equal to the prescribed maximum amount for 274 weeks. The question was whether the increases of the maximum amount which took place during the period of 274 weeks should be brought into account. Held, 1. The word payable in s. 11 (1) of the Workers Compensation Act 1956, in relation to compensation payable on death, refers to the date of the death of the worker. (Public Trustee V. Christchurch City Corporation [ N.Z.L.R. 855; and Coulston V. Gemini Fishing Co. Ltd. (unreported, Invercargill, 18 October 1972, Blair J., No. C.13/70), approved. United Collieries v. Hendry [1909] A.C. 383, at pp , referred to.) 2. The prescribed maximum amount at the date of the death must be used and variations in the maximum amount of compensation after the date of the death of the worker must be disregarded in calculating the lump sum. (Coulston v. Gemini Fishing Co. Ltd. (supra), approved. Public Trustee v. Christchurch City Corporation (supra), overruled.) Public Trustee v. Midland Aviation Ltd. (Court of Appeal, Wellington. 23 July; 3 August McCarthy P., Richmond and White JJ.). Lump sum payment-assessment on basis of loss of earnings or schedule-onus of proof-inadequacy of schedule payment-workers Compensation Act 1956, s. 17 (7). The question in issue was whether an employee, on an application made by the employer to end weekly payments, should be compensated by a lump sum on the basis of loss of earnings or on the basis of a quasi-schedule injury. Helrf, 1. The difference in the results between calculatmg compensation on the basis of loss of earnings and of being a quasi-schedule injury is never in itself a circumstance of the worker within s. 17 (7) (b) of the Workers Compensation Act (Delahunty v. O Dwyer [ N.Z.L.R. 780, and McSorley v. Carpet Manufacturing Co. [1967] N.Z.L.R. 300, not approved.) 2. The adequacy of schedule compensation is not to be decided by comparison with loss of earnings, but by considering its adequacy in relation to the actual effect of the accident in bringing about a diminution of earning power. 3. In considerin the adequacy of schedule compensation the Court s it ould not take as a test the question whether or not the employee would have been able to continue in that particular work for the full period of six years. 4. When the Court is satisfied as to paras. (a) and Ib) of s. 17 (7) it has an overall discretion as to whether it will award compensation on a schedule or loss of earning basis. 5. The onus is on the workereto satisfy the Court that compensation at schedule rates would be inadequate because of the worker s particular circumstances. Southern Cross Hotel Ltd. Y. Mcllvside (Court of Appeal, Wellington. 13, 14 August; 7 September McCarthy P., Richmond and Beattie JJ.1. PERPETUITIES-RULE AGAINST PERPETUI- TIES Power of appointment-joint power-general or special power-effect in relation to rule against perpetuities-settlement conferring joint power of afipointment on doneessecond settlement-donees exercising power of appointment by resettling property on trusts of second settlement-period of second settlement to be read back into first settlement-whether domes of power of appointment to be treated as hav-

8 464 THE NEW ZEALAND LAW JOURNAL 6 November 1973 ing equivalent of absolute interest in groperty subject of power. By a settlement made in 1887 certain property was settled on trust for such uses and purposes as C. and his son, D., should at any time jointly appoint. In 1921 G., D. s eldest son, married and, by a marriage settlement made two days previously between C., D., G. and others, substantial property was settled including property derived from the 1887 settlement ( the 1887 lands ). By cls. 1 and 2 of the 1921 settlement C. and D. irrevocably exercised their joint power of appointment under the 1887 settlement by appointing the 1887 lands to be held on the trusts declared in the 1921 settlement. By cl. 7 of the settlement the whole of the property was to be held by the trustees in favour or for the benefit of the members of a defined class of beneficiaries whom the trustees in their absolute discretion should, during the appointed period defined in cl. 8, appomt due regard being had nevertheless to the law relating to perpetuities... The appointed period was defined in cl. 8 as a term of 200 years from the date of the settlement if any of the persons named in the Eighth Schedule hereto shall so long live and for a further term of 20 years after the death of the survivor of such persons. The persons named in. the Eighth Schedule included 18 living grandchildren of C., none of whom had been a life in being at the date of the 1887 settlement. The trustees of the settlement sought the determination of the Court whether, in view of the nature of the power of appointment conferred on C. and D. in the 1887 settlement, the limitations cantained in the 1921 settlement in relation to the 1887 lands had to be read back into the 1887 settlement, in which case,. by reason of the definition of the appointed period in cl. 8 of the 1921 settlement, they would fail for perpetuity. Held, The limitations relating to the 1887 lands contained in the 1921 settlement had to be read back into the 1887 settlement and consequently were void for perpetuity for the following reasons: (i) For the purpose of the rule against perpetuities the kind of general power which entitled an appointment thereunder to claim a fresh start under the rule had to be one which was equivalent to a vested interest in the subject-matter to which the power extended in the donee thereof. A general power which was exercisable only with con- sent of a third party did not amount to an absolute vested interest in the subject-matter of the power in the donee thereof since he could only appoint in a manner approved by somebody else. The same reasoning applied to a joint general power for neither of the two donees (or none of the donees if more than two) could appoint the property as he might wish unless his wish happened to coincide with those of the other donee (or donees) of the power. It followed, therefore, that, for the purposes of the rule against perpetuities, a joint general power, like a special power, could not be equated with an absolute interest in the property which was the subject-matter of the power. (Dictum of Buckley L.J. in Re Fane [1913] 1 Ch. at 413, applied. Re Churston Settled Estates [1954] 1 All E.R. 725, explained and applied. Re Watts [193#1] All E.R. Rep. 786, explained. Re Dilke s Settlement Trusts [1920] All E.R. Rep. 200 and Re Phillips [1930] All E.R. Rep. 165, distinguished.) (ii) It was not possible to argue, on the basis that equity looks to the substance and not the form, that the 1921 settlement was to be regarded as a transaction in which C. and D. as joint donees had appointed jointly to themselves so as to make themselves absolute owners of the 1887 lands and thereafter made the desired settlement. Apart from the operation of the rule against perpetuities there was nothing wrong with the appointment which C. and D. had made; they had intended to make a valid appointment but what they had intended had been frustrated by a rule of law to which they had given no thought. It was not legitimate to attribute to C. and D. an intention to carry out a transaction which was entirely different in form from that which they had carried out and which was one they had in fact never considered. (iii) The words due regard being had to the law relating to perpetuities in cl. 7 of the 1921 settlement could not be construed as a provision that no exercise of the power of appointment contained in that clause could be valid if it infringed the rule against perpetuities. The purpose of those words was merely to remind the trustees to think carefully before exercising the powers conferred on them rather than to cut down the period during which the powers could be exercised. Re Earl of Coventry s Indentures [1973] 3 All E.R. 1 (Ch. D.). Where to find a specialist-mr J. N. Creer, of New South Wales, told the Australian legal convention that there was one real question: How was a client to choose a lawyer, with no real idea of his expertise? I think we should start to think about having categories of specialisation, he said. A member of the public should be able to go to the Law Society and get a list of the experts in the various fields. I know this could raise a lot of eyebrows. But I think it would be better than the present system, with the public wandering in the wilderness. If, after 10 years of general practice a lawyer was allowed to advise the Law Society he was now specialising in some field, his name could go on a panel. Though sometimes this system could support claims that were not true, I think it is much needed. Mr Barblett said Perth s Legal Advice Bureau had helped get around this problem. In a city office, staffed by young lawyers, people could pay $2 and get advice on where to go for specialist advice. Mr F. G. Brennan, Q.C., of Queensland, said it was a real problem that those most needing legal advice did not know where to go. Perhaps more important, they know where to go and won t come in, he said. Who, in a destitute state, with no money in his pocket, is going to run the gauntlet of the receptionist in a smart legal office and ask for help? It just doesn t add up. The whole fabric of the law is under challenge because, in a changing age, we have not come to grips with the basic problems.

9 6 November 1973 THE NEW ZEALAND LAW JOURNAL 465 BILLS BEFORE PARLIAMENT Accident Compensation Amendment Accident Compensation Amendment (No. 2) Admiralty - Agricultural Pests Destruction Amendment A&culture Workers Amendment Air Services Licensing Amendment Animals Amendment Animals Protection Amendment Appropriation Broadcasting Broadcasting Authority Amendment Commonwealth Games Boycott Indemnity Counties Amendment Crimes Amendment Criminal Justice Amendment Customs Amendment Customs Orders Confirmation Dangerous Goods Department of Social Welfare Amendment Development Finance Corporation Domestic Purposes Benefit Door to Door Sales Amendment Door to Door Sales Amendment (No. 2) Explosives Amendment Fire Services Amendment Forests Amendment Health Amendment Hospitals Amendment Lake Wanaka Preservation Licensing Amendment Licensing Trusts Amendment Local Elections and Polls Amendment Local Government Local Legislation Maori Purposes (No. 2) Marine Pollution Ministry of Energy Resources Amendment Motor Vehicle Dealers Amendment Municipal Corporations Amendment Municipal Corporations Amendment New Zealand Constitution Amendment (No. 2) New Zealand Day New Zealand Export-Import Corporation News Media Ownership Repeal Physiotherapy Amendment Plant Varieties Portage Licensing Trust Public Works Amendment Recreation and Sport Reserves and Other Lands Disposal Sale of Liauor Amendment Sales Tax 1 Scientific and Industrial Amendment Services Exuort Development Grants Shipping Corporation of New Zealand Social Security Amendment Soil Conservation and Rivers Control Amendment Statutes Amendment Summary Proceedings Amendment Transport Amendment Trustee Amendment Waitakere Licensing Trust Wheat Research Levy Women s Rights of Employment Wool Marketing Corporation Amendment STATUTES ENACTED Companies Amendment Equal Pay Amendment Imprest Supply Imprest Supply (No. 2) Industrial Relations Judicature Amendment Land and Income Tax (Annual) Maori Purposes Ministry of Transport Amendment Moneylenders Amendment National Roads Amendment Niue Amendment Overseas Investment Payroll Tax Repeal Post Office Amendment Property Speculation Tax Rates Rebate Rent Appeal Reserve Bank of New Zealand Amendment State Services Amendment Syndicates Trade and Industry Amendment Trustee Savings Banks Amendment University of Albany Amendment Volunteers Employment Protection Water and Soil Conservation Amendment SOUTH ISLAND DEVIL S OWN The results of the eighth South Island Devil s Own golf tournament, held at Temuka on September 1973, were: 1. Best gross score over two rounds: G. C. P. Beadel, Christchurch, 149. Runner-up: J. N. Lemon, Dunedin, Best net score over two rounds: A. J. Keegan, Christchurch, 128. Runner-up : T. Rose, Christchurch, Best medal round: E. B. Anderson, S.M., Invercargill, 65. Runner-up: A. J. Naysmith, Christchurch, Bogey: K. C. Marks, Dunedin, plus 5. Runner-up: R. M. Kean, Dunedin, plus Stableford: W. J. Rutherford, Dunedin, 45. Runner-up: G. Spencer, Ashburton, Most honest golfer: I. W. H. Chin. 7. Teams match: J. M. Conradson, Dunedin, E. B. Anderson, Invercargill, C. A. Bayley, Invercargill, E. 0. Sullivan, Timaru. Runners- R. McKenzie Christchurch A. Ritchie, i%burton I H. Main, Oamaiu, T. Rose, Christchur)ch. Evil Be- 1 don t wander around here in the nude, so why should nudity be thrown luridly across the screen? T. J. Young, M.P.