[1959] N.Z.L.R. 1236

 

[IN THE SUPREME COURT.]

 

WATCH TOWER BIBLE AND TRACT SOCIETY v. MOUNT ROSKILL BOROUGH.

 

SUPREME COURT. Auckland. 1959. May 21. August 21.

 

T. A. GRES50N J.

 

Trusts and Trustees-Charitable Trust-Borough receiving Subsidy for Erection
of War Memorial Hall on Trust that Hall Available for Use of All Sections of
Community-Refusal to allow Lawful Section of Community to use Hall-Rreojg1 of Terms of Trust.

 

Public Reserves and Domaines—Land vested in Borough for Recreation Purposes and Memorial Hall erected thereon—Such Land held on Charitable Trust-Council’s Powers Administrative Only—Power to Regulate Admission including Power to prohibit Admission on Reasonable Grounds-Refusal of Use of Hall for Public Bible Reading constituting Unjust Discrimination-Public Reserves and Domains Act 1953, s. 32 (1) (g).

 

Administrative Law—Land with Memorial Hall thereon Vested in Borough—Council’s Powers to Regulate Admission to Hall including Power to prohibit Admission on Reasonable Grounds—Council’s Powers administrative only—Council not required to act, in Respect of regulating Admission to Hall, in Judicial or Quasi-judicial Manner—Reserves and Domains Act 1953, s. 32.

 

Practice-Parties—Foreign Corporation Suing in Corporate Name—Such Corporation competent to seek Declaratory Order or an Order under Charitable Trusts Act 1957—“Person” —Acts Interpretation Act 1924, s. 4—Declaratory Judgments Act 1908, s. 3—Charitable Trusts Act 1957, s. 60.

 

The defendant Borough held certain lands as a recreational reserve on which stood the Mount Roskill Memorial Hall. The erection of the hall) was financed by public subscriptions, a grant from the Borough, and a Government subsidy given upon the representation that the Hall was to be a war memorial commemorating those men from the district who lost their lives in the Second World War. It was a condition of the subsidy:

 

"That the project be vested in the territorial local authority to ensure that the Memorial will always be available for the use of all sections of the community.”

 

It was made clear that the Hall was not of a purely symbolical nature but was rather a memorial community centre. On March 8, 1956, by Gazette notice, the land in question was vested in the Borough, pursuant to the Land Act 1948 and the Reserves and Domains Act 1953, as a reserve for recreational purposes.

 

On July 8, 1958, the plaintiff requested the use of the Hall for the purpose of a public Bible lecture on August 5. The Council resolved to decline the application, and the plaintiff was notified accordingly.

 

The plaintiff sought a mandamus requiring the Council to make the Memorial Hall available to it for the purpose of giving public Bible readings, and (or in the alternative) a writ of certiorari to quash the Council’s resolution of August 5, 1958. It also sought a mandatory injunction giving it access to the Hall. Alternatively, the plaintiff asked for an order under s. 60 of the Charitable Trusts Act 1957, or an order declaring and defining its rights of access to the Hall, or both.

 

Held, 1. That the Borough accepted the subsidy to finance the erection of the Memorial Hall on trust that the Memorial Community Centre would always be available for the use of all sections of the community; and the citizens of the Borough who were Jehovah’s Witnesses comprised a lawful section of the community. In declining to allow the plaintiff the use of the Hall, the Council acted in breech of the wide terms of the trust.

 

2. That, on the basis that the plaintiff was a legally constituted religious body which had conducted itself lawfully for the past eighteen years, even  [*1237]  if the action of the Council in refusing its permission to use the Memorial Hall constituted a denial of natural justice, there was nothing in the Reserves and Domains Act 1953 to require the Council to act in a judicial or quasi- judicial manner, and the poyvers contained in s. 32 were administrative powers only, so that the action of th4 Council in a purely administrative capacity could not be the subject of legal complaint as such, or remedied by prerogative writ.

R. v. Electricity Commissioners [1924] 1 K.B. 171, and New Zealand Dairy Board v. Okitu Co-operative Dairy Co. Ltd. [1953] N.Z.L.R. 366, and New Zealand United Licensed Victuallere Assocsalion of Employers v. Price Tribunal [1957] N.Z.L.R. 167, followed.

 

3. That, under the vesting order of the Minister of Lands, the land upon which the Memorial Hall was erected was vested in the Borough for recreation purposes, pursuant ta the Reserves and Domains Act 1953, and in trust for
that purpose, and the Council was not entitled to deal with it as though the Borough held the land as an absolute owner. It held the land on a charitable trust for a public purpose.

Keikoura County v. Boyd [1949] N.Z.L.R. 233; [1949] G.L.R. 23, followed.

 

4. That the Council’s power to regulate admission to the Memorial Hall conferred by s. 32 (1) (g) of the Reserves and Domains Act 1953, included the power to prohibit admission on reasonable grounds; and, in refusing the plaintiff permission to use the Memorial Hall for public Bible reading, the Council discriminated unjustly against it and infringed the spirit, if not the letter, of the section.

R. v. Rushbrooke [1958] N.Z.L.R. 877, referred to.

 

5. That, as the Council made its decision bona fide but on an imperfect appreciation of the extent of its obligations under the trust on which it held the Hall, it should be given the opportunity to reconsider the matter after the Court’s definition of the nature of its trust.

 

6. That, in the circumstances, it was premature to consider the discretion- ary prerogative writs which the plaintiff sought, and a declaration should be made as to the legal rights of the parties under the Declaratory Judgments Act 1908, or pursuant to s. 60 of the Charitable Trusts Act 1957.

Kaikoura County v. Boyd [1949] N.Z.L.R. 233; [1949] G.L.R. 23, and Hutton v. Hutton [1916] 1 K.B. 642,  

Semble, The plaintiff, as a foreign corporation, could sue in its corporate name in the New Zealand Courts; it was a “person” by virtue of s. 4 of the Acts Interpretation Act 1924, and, as such, it could invoke s. 3 of the Declaratory Judgments Act 1908 or seak an order pursuant to s. 60 of the Charitable Trusts Act 1957. (To enable the Court to adjudicate completely upon the important question involved in the ease, the Court ordered the names of four Jehovah’s Witnesses resident in Mount Roskill Borough, with their consent, to be added as plaintiffs).

 

ACTION claiming a writ of mandamus and a writ of certiorari, or both, and other relief in the circumstances following.

 

The Watch Tower Bible and Tract Society, commonly referred to as Jehovah’s Witnesses, a body corporate constituted under the laws of Pennsylvania, United States of America, sued by its lawful attorney in New Zealand, Benjamin Brock Mason, of Auckland, minister. The defendant, the Mount Roskifi Borough, held certain land as a recreation reserve, on which stood the Mount Roskill War Memorial Hall. This Hall, which was opened on October 29, 1955, was financed by publie subscription and grant from the defendant Borough, which the Govern- ment subsidized in accordance with its policy of helping to finance war memorial community centres. In all, the sum of £8,000 was raised by public subscription upon the representation that the hall was to be a war memorial commemorating those men in the district who lost their lives in the Second World War. It was a condition of the subsidy,

 

"That the project be vested in the territorial local authority to ensure that the Memorial will always be available for the use of all sections of the
community  [*1238]

 

In declining to subsidize the original scheme, which was for memorial gates, the Internal Affairs Department had stated that,

 

"The war memorial subsidy policy is limited to those projects taking the form of community centres ... Memorials of a purely symbolic nature, although equally appropriate, are not eligible for subsidy.”

 

It was therefore clear that the hall was not a shrine of a purely sym- bolical nature, but was rather a memorial community centre.

 

On March 8, 1956, by Gazette notice (1956 New Zealand Gazette. 314), the land in question was vested in the Borough pursuant to the Land Act 1948, and the Reserves and Domains Act 1953, as a reserve for recreation purposes. On September 23, and on December 2, 1956, and again in April, 1957, the plaintiff was granted the use of the Hall for a public Bible lecture, and on each occasion these lectures took place without incident or disorder of any kind.

 

Following upon a request by the Jehovah’s Witnesses for the use of the Levin Memorial Hall and the Kaitai Swimming Baths, the Dominion Executive Council of the New Zealand Returned Servicemen’s Association passed a resolution early in February, 1958, to the effect that a war memorial was sacred to the memory of those who served their country in time of peril, and that where a memorial took the form of a public utility, this principle should apply to the whole utility whether it be a building, park, playing field, or swimming bath; that persons who refused to defend or serve their country during the war had no moral right to be in or about a memorial, and their presence was an affront to those whom the memorial commemorated; that it was an insult to every war widow, bereaved parent, and serviceman, that organizations such as Jehovah’s Witnesses, which had been declared subversive on October 24, 1940, should in any circumstances be per- mitted to use any part of a war memorial: that accordingly affiliated associations should bring the views of the New Zealand Returned Servicemen’s Association before the authorities controlling any such memorials.

 

A copy of this resolution was sent to the defendant Borough or February 24, 1958, and on April 3 of that year the Borough Council advised the New Zealand Returned Servicemen’s Association that it had passed a resolution that applications by Jehovah’s Witnesses for the use of the hall would be declined.

 

On July 8, 1958, the plaintiff requested the use of the Hall for the purposes of a public Bible lecture, and at a meeting on August 5 the Council resolved to decline its application, and the plaintiff was notified accordingly by letter next day.

 

In these circumstances, the plaintiff alleged a denial of natural justice, and asserted that, in passing its resolution, the Council failed to act judicially, and indeed discriminated against the plaintiff and unjustly infringed its so-called inherent right to have access to and speak in a public place.

 

On these grounds, the plaintiff sought a writ of mandamus requiring the Council to make the Mount Roskill War Memorial Hall available to it for the purpose of giving publie Bible lectures and/or a writ of certiorari to quash the Council’s resolution of August 5, 1958. It also sought a mandatory injunction giving it access to the Hall. In the alternative, it prayed for an order under s. 60 of the Charitable  [*1239]  Trusts Act 1957, and/or an order declaring and defining its rights of access to the hall. Haigh and Hillyer, for the plaintiff. Southu'iclc, for the defendant. August 10. T. A. Gresson J. In general, it must be assumed that the Legislature confines its enactments to its own subjects over whom it has authority and to whom it owes a duty in return for their obedience. It may extend its provisions to foreigners in certain cases, but the presumption is rather against the extension; Jefferys v. Boosey (1854) 4 H.L.C. 815, 970; 10 E.R. 681, 742: Maxwell on Interpretation of Statutes, 8th ed. 135: Craies on Statute Law, 5th ed. 434; Davidsson v. Hill [1901] 2 K.B. 606; Tomalin v. S. Pearson and Son. Ltd. [1909] 2 K.B. 61. A question thus arises as to the, competence of the present plaintiff, who is the attorney of a foreign body corporate, to bring the 5 present proceedings and, inter alia, invoke the advantages conferred by the Reserves and Domains Act 1953, and certain trusts imposed by the Government at the time when it granted its subsidy towards the Mount Roskill Memorial Hall. It is to be observed that no challenge to the competence of the Watch Tower Bible and Tract Society was raised in Watch Tower Bible and Tract Society v. Huntly Borough, (ante, p. 821,) but, on the assumption that the action has, by mistake. been commenced in the name of the wrong plaintiff, I am of opinion that to determine the important and substantial matter in dispute, four individual members of the plaintiff body resident in the Mount Roskill Borough should, at this stage, be added as plaintiffs. Such joinder would appear to involve no prejudice to the defendant, but, if necessary. I will hear counsel as to the propriety of such an order and the terms, if any, on which such an order should be made: Rules I) 60 and 6I) of the Code of Civil Procedure; Duke of Buccleuch [1892] P. 201; Hughes v. Pump House Hotel Co [1902] 2 K.B. 485.

 

August 21. T. A. Gresson J. [After stating the facts as above J In its defence. the Council admits that its tenure is subject to the provisions of s. 32 of the Reserves and Domains Act 1953, and that certain con- 35 ditions to ensure that the War Memorial was maintained on as wide a community basis as is practicable were stipulated by the Government when granting its subsidy. It claims that in refusing the plaintiff the use of the Hall it was not obliged to act judicially, and asserts that even if this were the case it acted judicially and conscientiously within 40 its statutory powers. Furthermore, on October 8, 1958, the defendant notified the plaintiff that if it cared to apply for the use of the Municipal Hall as opposed to the War Memorial Hall, such application would receive serious consideration.

 

As Shorland J. pointed out in Watch Tower Bible and Tract Society v. Huntly Borough, (ante, p. 821): “It is no part of the function of this “Court to hold or to pronounce any views relative to the canons of good taste or to consideration of the feelings of those citizens who view as hallowed a memorial erected and preserved to the cornmemoration of those who made the supreme sacrifice in the last war. The matter before the Court is simply one of law, and a matter which must be considered in accordance with the rules of law, and the acceptance of the fundamental principle that all parties, all persons, and all creeds have the same rights to receive justice according to the law from the Court" (ibid., 822).
  [*1240]

 

 It is not seriously disputed that, in refusing the p4csintiff the use of the Hall, the Borough Council was acting in deference to the wishes of the New Zealand Returned Servicemen’s Association. It was doubtless greatly influenced by the fact that on October 24, 1940, the plaintiff body had been declared a “subversive organization” by the Attorney-General under the provisions of the Public Safety Emergency Regulations 1940, Amendment No. I (S.R. 1940/122). This was a step which he was empowered to take

 

if satisfied that any of the purposes, methods or activities of any organization have a subversive tendency or may be injurious to the public safety.

 

On May 8, 1941, the Attorney-General modified his original declaration so as to permit Jehovah’s Witnesses to hold meetings for the study of the Bible, prayer, or worship, subject to certain reasonable conditions. On March 27, 1945, while the war was still in progress, the original declaration that Jehovah’s Witnesses were a subversive organization was revoked. The plaintiff body was thus allowed to hold its religious meetings in New Zealand for the greater part of the Second World War, and it has incurred no subversive stigma during the past fourteen years.

 

It is unnecessary to burden this judgment with a detailed examin- ation of the beliefs and practices of Jehovah’s Witnesses, which are conveniently summarized in Adelaide Company of Jehovah’s Witnesses (Inc.) v. The Commonwealth (1943) 67 C.L.R. 116, 117, 118, 145, 146. 159; and Walsh v. Lord Advocate [1956] 3 All ER. 129. The literal interpretation of the Bible is the keystone of this sect’s belief, and its ideology condemns the established Church institutions and stresses the absolute and exclusive personal relation of the individual to the Deity without human intermediation or intervention: Roncarelli v. Duplessis (1959) 16 DLR. 689, 696. Its attitude towards martial strife is one of strict neutrality and its adherents object on conscientious grounds to take the oath of allegiance, but they do not object to take an oath in a Court of Law, nor do they refuse the protection of the Queen’s Courts or other constituted human authority. It is, however. difficult to reconcile some of the tenets of their belief with the obligations of the ordinary citizen in time of war: Adelaide Company of Jehovah’s Witnesses (Inc.) v. The Commonwealth (1943) 67 C.L.R. 116, 159. In this connection, I respectfully adapt some passages from the speech of Lord Sumner in Bowman v. Secular Society Ltd. [1917] AC. 406:

 

"The words, as well as the acts, which tend to endanger society differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault. The question whether a given opinion is a danger to society is a question of the times and is a question of fact. Society has the right to "protect itself by process of law from the dangers of the moment, whatever that right may be. The attitude of the law, both civil and criminal, towards all religions depends fundamentally on the “safety of the State” (ibid., 466, 467).

 

Bodies, corporate and unincorporate, and individuals may profess ideas or carry on activities which, in times of peace, may be harmless, but which in time of war may interfere with the st,cessful defence of the Commonwealth: Adelaide Company of Jehovah’s Witnesses v. The Commonwealth (1943) 67 C.L.R. 116, 149, 161, per Williams J. On the other hand, it is important to record that Jehovah’s Witnesses did not engage in overt hostile acts, and their attitude towards military service was dictated by their conscience and their religious beliefs.

 

"We are free to worship or not to worship, to affirm the existence of God or to deny it; to believe in the Christian religion or in any other religion or in none, just as we choose ': Freedom under the Law, p. 46, 47, per Denning L.J., as he then was.

 

After centuries of sectarian strife, “complete liberty and full toleration have been attained": 8 Holdsworth’s History of English Law, 402-420. As Sir John Latham C.J. has pointed out: “The religion of the majority can look after itself... It is the religion or absence of religion of minorities, and in particular of unpopular minorities, which require the protection of the law”: see, in particular, Boucher v. The King [1951] 2 D.L.R. 369, and Roncatelli v. Duplessis (1959) 16 D.L.E. 689, where the Supreme Court of Canada, by a majority, upheld an award against the Premier of 33,123 dollars to a restaurant proprietor whose licence to sell liquor had been peremptorily cancelled by the Quebec Liquor Commission on the former’s instructions, because as a Jehovah’s Witness the latter had furnished bail to members of this sect who had been arrested for infractions of certain municipal by-laws governing the distribution of literature. It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherent of all the many and various religions which exist, or have existed, in the world, and what is religion to one is superstition to another. Every person is free to choose the content of his own religion, and it is not for a Court, in a field in which it can profess no competence, to disqualify upon some a priori basis certain beliefs as incapable of being religious in character: Bowman v. Secular Society Ltd. [1917] A.C. 406, 467 Adelaide Company of Jehovah’s Witnesses (Inc.) v. The Commonwealth (1943) 67 OLE. 116, 123, 124. On the basis then that the plaintiff is a legally constituted religious body which has conducted itself lawfully for the past eighteen years, did the action of the defendant Council in refusing it permission to use the Memorial Hall constitute a denial of natural justice of which complaint can legally be made? In my view, it is necessary to heed the note of warning which Gresson P. sounded in Drewitt v, Price Tribunal, (ante, p.2l). when he stated: "Natural justice isanelastic term “which may be invoked from time to time, but it is necessary to use “caution to see that it is not unduly extended and made to apply to “a case which does not fairly fall within the principles which so “frequently have been enunciated” (ibid., 38). One must also bear in mind that if the Council, when passing its resolution, was acting not in a judicial or quasi-judicial but in a purely administrative capacity, it was not obliged to observe the principles of natural justice: Nakkuda Ah v. Jayaratne [1951] AC. 66, 79; Franklin v. Minister of Town and Country Planning [19481 A.C. 87; [1947] 2 All E.R. 289; Connolly v. Palmerston. North City Corporation [1953] N.Z.L.R. 115, 119; and Quasi-Judicial and its Background, by H. W. R. Wade, (1950) 10 Cambridge Law Journal, 216, 229.

 

It is well settled that, in determining whether a particular tribunal or local body is exercising a judicial or quasi-judicial function, it is to the language of the Legislature that one must first turn. The context or conditions of the jurisdiction must be examined: Nakkuda Ali’s case [1951] AC. 66, 79. The legislative provisions involved and the conditions and circumstances, under which and in which the jurisdiction is exercised, must be considered; New Zealand Dairy Board v. Okitu Co-operative Dairy Co. Ltd. [1953] N.Z.L.R. 366, 410,
 [*1242]  417, 418; New Zealand United Licensed Victuallers Association of Employers v. Price Tribunal [1957] N.Z.L.R. 167, 210; Low v. Earthquake and War Damage Commission (ante, p. 1198). There is a complete absence of any judicial machinery in the Reserves and Domains Act 1953, and the powers contained in s. 32 are clearly administrative powers. There was no lis in the accepted sense before the Council, and the trappings of a Court were absent. The rights of subjects- namely, the right of free speech, lawful assembly and freedom of worship-were involved, but the super-added characteristic-namely, a duty to act in a judicial or quasi-judicial manner, was, in my view, absent: R. v. Electricity Commissioners [1924] 1 KB. 171, 205. It follows, therefore, that even if the action of the Council constituted a denial of natural justice, this cannot be the subject of legal complaint as such, or remedied by prerogative writ.

 

There is no specific right at common law to hold a public meeting on a common or in a public place: De Morgan v. Metropolitan Board of Works (1880) 5 Q.B.D. 155; Dicey’s Law of the Constitution, 8th ed. 267, 497; The Law of Public Meeting, E. C. S. Wade; (1938) 2 Modern Law Review, 186; (1937) 6 Cambridge Law Journal 161, per, A. L. Goodhart. A right of lawful assembly for a lawful purpose, provided no disorder or breach of the peace is rendered likely thereby, is in reality but a corollary to individual liberty and individual freedom of speech, and in this connection one must take into account the fact that the plaintiff has conducted previous Bible meetings in the Memorial Hall without incident. Moreover, there is no evidence that on the date in question the hail was otherwise required, and it was admitted in the course of the hearing that the plaintiff was at all material times ready and willing to comply with all such reasonable conditions as might be imposed in respect of its use of the hall.

 

 In his vesting order, the Minister of Lands vested the land upon which the Memorial Hall is erected in the Mayor, Councillors, and Citizens of the Borough of Mount Roskill for recreation purposes, pursuant to the Reserves and Domains Act 1953, and in trust for that purpose. Effect must be given to the plain meaning and intention of these words. The defendant Borough thus holds the land as a trustee for a special purpose, and the Council is not entitled to deal with it as though the Borough held the land as an absolute owner. It must be held so as to achieve the particular purposes upon which it was vested in the Borough. In my view, the land is held on a charitable trust for a public purpose, and the trust should thus receive a benignant construction: Kaikoura County v. Boyd [1949] N.Z.L.R. 233, 261 ; [1949] G.L.R. 23, 32. I should also interpolate that I was informed from the Bar that the Attorney-General had had formal notice of these proceedings, but had no wish to take part herein.

 

Under s. 32 (1) (g) of the Reserves and Domains Act 1953, the defendant Borough, as the administering body of a recreation reserve, may erect on any portion of the reserve any building necessary for the full use of the reserve for the purposes for which it is set apart, and generally regulate admission to any such building. The power to regulate admission would, in my view, include the power to prohibit admission on reasonable grounds, but legitimate regulation of admission must not degenerate into a more means of discrimination or hindrance in the way of one class from which other classes are free: Hazeldon v. Mc Ara [1948] N.Z.L.R. 1087, 1107; [1948] G.L.R. 476, 485 Mitcham Common Conservators v. Cox and Cole [1911] 2 KB. 854,  [*1243]  875, 876; Slee v. Meadows (1911) 75 J.P. 246, 247. All classes of the community should share in the enjoyment of. the reserve and the hall thereon: De Morgan v. Metropolitan Board of Works (1880) 5 Q.B.D. 155, 158.
Section 33 of the Act shows quite conclusively that the adminié- tering body shall not so deal with the reserve that the publie are excluded from free access thereto, and it is at least arguable that if public Bible reading can be regarded in the wide sense as “recreation “, then in refusing the plaintiff permission to. use the Memorial Hall for this innocuous purpose, the Council discriminated unjustly against it and infringed the spirit, if not the letter, of this section: cf. R. v Rushbrooke [1958] N.Z.L.R. 877, 882.

 

There is, however, another and, in my view, stronger ground upon which I prefer to base my judgment. The Council accepted the subsidy previously referred to and, in due course, the land and Memorial Hall thereon . on trust that the Memorial Community Centre would always be available for the use of all sections of the community, and maintained on as wide a community basis as is practicable. It cannot be disputed that the citizens of the Borough who are Jehovah’s Witnesses comprise a lawful section of the community, and though in a relative minority, they must, in my view, enjoy the same legal rights and beat the same legal obligations as members of the Returned Servicemen’s Association. In declining to allow the plaintiff the use of the hail, the Council, in my view, acted in breach of the wide terms of this trust. The Court has full power to sec that the trust is properly carried out. Having regard to the fact that the Council’s decision was largely based on a failure to appreciate the wide purposes of its trust, the ordinary course would be for the Court to direct it to reconsider the matter on the correct basis. More drastic action is only taken where it is clear that the trustee is not honestly or reasonably attempting to carry out its duties.

 

The Council plainly made its decision bona fide, but, in my view, upon an imperfect appreciation of the extent of its obligations under its trust. In these circumstances, it should be given the opportunity to reconsider the matter now that the nature of its trust has been defined. It should not be assumed that the Council will refuse to carry out its obligations, and in fact counsel-as one would expect on behalf of a responsible local body-indicated the defendant’s anxiety to conform with its legal obligations in the matter. In these circumstances, it is premature to embark upon a consideration of the discretionary prerogative writs which the plaintiff seeks: Kaikoura County v. Boyd [1949] N.Z.L.R. 233, 266; [1949] G.L.R. 23, 34. The plaintiff’s prayer for "further or other relief” is, I think, wide enough to permit the Court to make a declaration as to the legal rights of the parties under the Declaratory Judgments Act 1908 (Hutton v. Hutton [1916] 2 K.B. 642, 656), or pursuant to s. 60 of the Charitable Trusts Act 1957.

 

A procedural question was raised by the Council as to the competence of the present plaintiff to bring these proceedings. I was informed from the Bar that it was admitted that the plaintiff society was a body corporate, constituted under the laws of Pennsylania, having its registered office at Pittsburgh, United States of America, and at the hearing the defendant did not dispute that Benjamin Brook Mason is its lawful attorney, resident in New Zealand. It has been well settled since the beginning of the eighteenth century that
  [*1243]  a foreign corporation may sue in its corporate name in the English Courts: Dutch West India Co. v. Henriques Van Moses (1728) 1 Stra. 612; 93 E.R. 733, and subsequent proceedings sub. nom Henriques v. General Privileged Dutch Co. Trading to West Indies (1730) 2 M. Rayd. 1532; 92 E.R. 494; Newby v. Colts Patent Fire Arms Co. (1872)
L.R. 7 Q.B. 293, 294; National Bank of St. Charles v. De Benales (1825) Ryan & Moody 190;, 171 E.R. 990; De Beer’s Consolidated Mines Ltd. v. Howe [1905] 2 K.B. 612, 641; Farnsworth’s Residence and Domicile of Corporations, 64; Bries on the Doctrine of Ultra Vires, 3rd ed. 6; 7 Halsbury’s Laws of England, 3rd ed., p. 12, paras. 20, 21. English and New Zealand Courts have long since recognized as juristic persons corporations established by foreign law, in virtue of the fact of their creation and continuance under and by that law: Lazard
Bros. and Co. v. Midland Bank Ltd. [1933] A.C. 289, 297; [1933] All E.R. Rep. 571, 576, per Lord Wright; Russell v. CambeJort (1889) 1 23 Q.B.D. 526, 528; New Zealand Banking Corporation v. Cutten
(1864) Mac. 212, 221, 227, 228; Bank of Otago Ltd. v. Commercial Bank of New Zealand Ltd. (1867) Mac. 233, 240. It is also of interest to note that in Watch Tower Bible and Tract Society v. Huntly Borough (ante, p. 821), no challenge to the competence of the plaintiff was raised. Furthermore, in his original declaration dated October 21, 1940 (1940 New Zealand Gazette 2752), the Attorney. General recognized the existence and operation within New Zealand of the organization known as Jehovah’s Witnesses or the Watch Tower Bible and Tract Society. I have not had the advantage of full argument on this aspect of the matter, and it may be that no valid objection to these proceedings being taken in the name of the plaintiff Society and its lawful attorney can be sustained. The defendant is resident in New Zealand, and the plaintiff body is lawfully constituted under the laws of Pennsylvania and operates quite widely throughout New Zealand. By virtue of the Acts Interpretation Act 1924, s. 4, “person" includes a corporation sole and also a body of persons, whether corporate or unincorporate. Any “person” claiming to exercise a right dependent on the construction or validity of any statute . . . document of title, or agreement in writing, may invoke s. 3 of the Declaratory Judgments Act 1908. Any “person” may also seek an order pursuant to s. 60 of the Charitable Trusts Act 1957, in respect of property subject o a trust for a charitable purpose, and once the right of access to the Court is established I see no real distinction between the various forms of procedure which may be availed of there. 4 By its failure to deny expressly the plaintiff’s right o sue, the defendant may have lost its opportunity to take this purely technical objection to the plaintiff’s status, and its proper course may well have been to move to strike out the plaintiff’s claim: Russian Commercial and Industrial Bank v. Comptoir D'Escompte de Mulhouse [1925] A.C. 112, 130, 148; 1958 1 Annual Practice 574. However, I express no concluded opinion on this question as it has not been argued before me.

 

Even if the Court were to uphold this objection, I surmise that the only practical result would be that application for the use of the hall would be made forthwith by several of the Jehovah’s Witnesses resident in the Borough, and upon refusal of their request the present proceedings would be re-issued in their individual names. The delay and expense of further proceedings should, if possible, be avoided, 1958 1 Annual Practice, 345, and in an interim judgment dated August  [*1245]  10, 1959 (ante, p. 1239), I therefore suggested that any possible procedural difficulty-as to which see New Zealand United Licensed
Victuallers Association of Employers v. Price Tribunal [1957] N.Z.L.B. 167, 213-might be obviated by joining four individual members of the plaintiff body resident in the Mount Roskill Borough as plaintiffs, pursuant to either R. 60 or R. 90 of the Code of Civil Procedure: Duke of Buceleuch [1892] P. 201; Hughes v. Pump House Hotel Co. [1902] 2 K.B. 485, and stated I would hear counsel as to the propriety of such joinder.

 

Counsel for the defendant opposed any such joinder, and submitted that proceedings had not been issued in the name of the present plaintiff through a bona fide mistake, but by design. He also pointed out that the application for the use of the hail was made by the Watch Tower Bible and Tract Society and not by individual mmbers of the sect.

 

It is well settled that an action should never be dismissed for want of parties or where, through bona fide mistake, it is doubtful whether it has been commenced in the name of the right plaintiffs: Cowlishaw v. Christchurch Press Co. Ltd. (1907) 28 N.Z.L.R. 539; 8 G.L.R. 767; Rhondda Urban District Council v. Pontypridd Water Works Co. [1908] 1 Ch. 388. Bona fide mistake includes mistake of law (Duckett v Gover (1877) 6 Ch.D. 82, 86), and to enable the Court to adjudicate completely upon the important question involved in this case, I order that the names of the following Jehovah’s Witnesses, resident within 5 the Borough of Mount Roskill, be, with their consent, added as plaintiffs: Charles Beasy, of 79 McGullough Avenue, Mount Roskill, manual school teacher; Norman Vincent Coles, of 454 Mount Albert Road, Mount Roskill, bricklayer; George Desmond Wilson, of 1 Mount
Roskill Road, Mount Roskill, electrical serviceman; Robert Charles Rowe, of 1a Martyn Avenue, Mount Roskill, builder.

 

In these circumstances, I make the following declaration: “That the Watch Tower Bible and Tract Society and/or Charles Beasy, Norman Vincent Colos, George Desmond Wilson, and Robert Charles Rowe, are entitled to have access to the Mount Roskill War 5 Memorial Hall for the purpose of holding Bible lectures, at such reason- able times and upon such reasonable conditions as the Mt Roskill Borough Council shall impose".

 

In the particular circumstances, I make no order as to costs.

 

Declaration accordingly.

 

Solicitor for the plaintiffs: F. H. Haigh (Auckland).

Solicitors for the defendant: Nicholson, Gribben, Rogerson, and Nicholson (Auckland).