SUPREME COURT-IN BANCO.

Otago Witness, Issue 1650, 7 July 1883, Page 1 (Supplement)

SUPREME COURT -IN BANCO.

Thursday, 28th June. (Before his Honor Mr Justice Williams.) THOMAS JOHNSTON V. THE LAND BOARD 01' OTAGO. Argument of motion for a mandamus. Mr I\ Chapman appeared in support of the motion, and Mr Haggitt, with him Mr Stout, to oppose. In this case the plaintiff prayed that a writ of mandamus might be directed against the defendants.commanding them to issue a license to occupy section 2, block VI, Strath-Taieri district, which was offered for sale by public auction on February 28th last, and knocked down to the plaintiff at the price of £4551 12s 6d, being at the rate of £1 12s 6d per acre. _ The plaintiff also asked that an injunction might issue restraining the defendants from doing anything whereby the right of the plaintiff to hold the said land might be prejudiced, and that the defendants should be ordered to pay to the plaintiff his costs of this proceeding, and geneI rally that the plaintiff might have such judgment as the Court considered him entitled to.

In the statement of defence it was admitted that notice of the sale was published in the Gazette, but it was stated that unless the effect of the said notice was duly to set the land apart for sale on deferred payments the defendants denied all the material allegations in the first paragraph of the claim, which set forth that the land in question was subject to be dealt with as pastoral land. The defendants also averred that shortly after the sale one Alfred Charles Kimbell, who was a bidder at the sale for the section in question, disputed the supposed sale to the plaintiff, and objected to the issue of a license to him, alleging that the plaintiff's declaration as to his being a lona fide bidder was false ; that disputes also had arisen as to other sections supposed to have been sold at the sale, and as to the issue of licenses therefor ; that the Board on the 23rd May last passed a resolution deciding to hold an inquiry into the matter on the 7th of June ; that the plaintiff was summoned to attend the inquiry, but did not do so ; and that the matter was therefore still pending before the Board, and was still undetermined. For the plaintiff affidavits had been filed by the plaintiff, Thomas Johnston, by Mr J. B. Bradshaw, and by Mr G. W. Christian (olerk to Messrs Chapman and Strode). The plaintiff's affidavit averred that he had attended the sale, and had purchased through his agent, Mr J. B. Bradshaw ; that he had made the statutory declaration that the statements therein contained were true ; and that having been informed that his solicitors had not succeeded in obtaining the license, he had authorised them to take proceedings to obtain a writ of mandamus. Mr Bradshaw's affidavit stated that he had purchased the land in question as agent for the plaintiff, Thomas Johnston, and had paid the required deposit. The solicitors' affidavits set forth the correspondence between the Board and Messrs Chapman and Strode regarding the license, and also Mr Kimbell's letter to the Land Board.

Several affidavits were filed for the defence. In the Chief Commissioner's affidavit it was stated that Mr Bradshaw was requested by Mr Gellibrand to attend the sale, and that Alfred Kirabell objected to the issue of the license, alleging that the statement in the declaration that the plaintiff was making the purchase for his own exclusive use and benefit, and not directly or indirectly for the use or benefit of any other person, was false. The principal points in the evidence giveu by Kenneth Williamson before the Land Board were set forth by affidavit.jjand the affidavit also contained a copy of a letter, as follows :— " Oottersbrook Station, June 3rd, 1883, Mr Kenneth Williamson — I hear you have received a summons to attend at the Waste Lands Board on Thursday next. I have been advised that the action of the said Board is illegal, and as you are now busy with the ewes, I cannot give you permission to leave the station. I will therefore hold you harmless from anything that may happen to you from non-attendance. — G. W. Pogson, for Gellibrand and Co." Alfred Charles Kimbell in his affidavit stated that from inquiries he had made and had caused to be made since the sale, he believed that Thomas Johnston had not purchased the section for his own exclusive use and benefit, but that it was made directly or indirectly for the use and benefit of the firm of Gellibrand and Co., or some or one of the partners of the said firm.

Mr Chapman, in arguing in support of the motion, said tha statements that Mr Bradshaw attended the sale at the request of Mr Gellibrand, that Mr Gellibrand paid him the money which was deposited, and paid the agent's commission, were not inconsistent with what the plaintiff alleged— that he (the plaintiff) attended the sale, and that Mr Bradshaw bought for him. Mr Kimbell could have no locus standi whatever in the matter, and did not claim any until months after the sale, his first appearance having been made after the license was refused in May. The resolution " That the Board decline to issue the license in the meantime'," he contended, was an absolute refusal to perform a ministerial duty. The Board had not decided anything in any proper sense ; if it could be said to have had power to decide upon the claim, it had merely refused in such terms as drove the applicant to take these proceedings. In asking the applicants to apply personally, the Board had imposed a condition that was wholly unknown to the law. The Legislature had enacted that on the production of the declaration and the payment of the deposit the license should issue. These were the only conditions imposed, and upon their being fulfilled the performance forthwith of the ministerial duty of issuing the license was entailed upon the Board, no matter what might be the consequences. It was suggested that there were gronnds for supposing the declaration was false ; Mr Kimbell, in a way, asserted it was false ; but if the declaration was false, that was a matter which must be proved, and which could not be opened up on a mere suggestion. The Act was very specific on the subject of the falsity of a declaration. Under section 83 it was provided that "in the event of any of the statements contained in the declaration being false, the purchaser shall i orfeit all right to the land comprised in his purchase, and all moneys paid In respect thereof, and all improvements thereon " ; but this section, he submitted, could have no necessary connection with the issue of a license, for the effect of the issue of a license was merely to protect the holder from proceedings which might be taken against him under anjther part of the Act. The moment the declaration was lodged and the money paid, the successful bidder was, he maintained, entitled to the license. If the declaration were false, then proceedings should be taken in a regular way for the forfeiture of a right which had been obtained ; but it appeared clear to him that the Board had no power to take the initiative by refusing the license. It was not within the jurisdiction of the Board to make or declare such forfeiture, and the proceeding was certainly not to be taken by more suggestion, but some positive proof must be given in a formal' and proper manner, before n regular tribunal, before the plaintiff's right could be forfeited. His Honor : If the statements in the declara-

tion were untrue, and the Board was aware that they were untrue, would it not be the plain duty of the Board to decline to issue the license"

Mr Cnapnian submitted that that was not a matter within the jurisdiction of the Board. The power to appeal to the Supreme Court given in section 31 of the Act was a power to appeal if any person felt aggrieved by the decision of the Board. That, however, was nob the present case. It was contended for the applicant that it was not a matter for decision at all, and that_ it did not come within the scope of that section. But the term " decided " was inapplicable. Where and when could it be said that the Board had come to a decision? His Honor : No ; the Board has not absolutely refused. From what I can gather from the statement of defence, it might very well be that the Board, if Johnston came before it and satisfied it of the truth of his declaration, would still be prepared to give him a license. Mr Haggitt : That is so Mr Chapman said that the Board claimed to have passed a resolution to that effect on the 23rd of May, but that resolution was in no way communicated to Johnston ; the subpoena to attend the inquiry was served at his residence the day his statement of claim was filed in the Court, and he knew nothing of the suggested willingness of the Board. The Board had never, in any correspondence to Johnston or in any resolution, communicated to him or suggested the falsitj' of his declaration, nor did it do so in answer to the request to give the grounds of its refusal to issue the license. In support of his argument that the terms the Board imposed with regard to the issue of these licenses were terms not known to the Act, in disregard of its provision and in violation of it, he mentioned that under the Act formerly in force in Otago with reference to land sold under deferred payment there was provision for applicants to appear and demand their licenses, but that was not so in this Act, and presumably the Legislature had found the provision inconvenient, and had altered it by simplifying it. The Legislature having formerly enacted a particular mode of proceeding, and now having enacted a simpler mode, it must be taken to have expressed the opinion that attendance before the Board was not only unnecessary, but was a thing not to be imposed by the Board. Under "The Otago Waste Lands Act, 1872," there was also provision for refusing a license, which permission was not in the latter Act. The resolution of the Board placed the claimant in such a position that no course was open to him but to take the present proceedings. There was no decision by the Bourd from which the claimant could appeal ; there was nothing in the correspondence to inform him as to when he was in the position of a person aggrieved by the decision of the Board ; and it vms not suggested that he was not in a position to appeal. The resolution of the 23vd of May proceeded upon an assumption that the Board had some particular jurisdiction that was in no way conferred by law. The resolution to hold an inquiry was apparently founded upon the previous proceedings of the Boa.rd, which were mis-recited ; initiated upon assumptions which had never been suggested hitherto, and upon assertions that had not been communicated to the claimant ; and based upon an assumption of jurisdiction or authority which did not exist. The power given by sub-section 7 of section 25 of the Act did not apply, as the power given was a power to hear and to determine such matters as were properly within its jurisdiction ; but it had no power to do what it sought to do by the resolution referred to. There was an attempt to make something by the statement in the claim of the position of Mr Kimbell, but even up to the date of the resolution Mr Kimbell's name was not mentioned in connection with the proceedings of the Board. It was suggested that Kimbell and Johnston were quasi litigant parties before the Board, and that the Board was a court of some kind, with plenary powers to hear and determine whatever it might think fit ; but he submitted that all that the meaning of subsection 7 was that the Board had power to hear and determine, not only disputed questions of fact, but disputed questions of law when they were brought before it, and that if persons chose to submit to its decision they might do so, but that if they desired they might appeal to the Court. That power, however, arose only when the Board was placed in the position of a court by the parties. Here there were no parties. The Board, without being moved by any party, had attempted to assume judicial functions in a matter in regard to which its duties were purely ministerial. Mr Kimbell's affidavit, he submitted, could not be used. Mr Kimbell's opinion was based upon inquiries he had made and inquiries he had caused to be made. On a motion of this kind positive evidence must be given, and against the conjectural statements contained in Mr Kimbell's affidavit they had the positive evidence of the plaintiff in his declaration, which bylaw was equivalent to a statement on oath. Then again, Mr Kimbell's letter to the Board was not a letter raising a dispute, but was a letter suggesting that a Royal Commission should be appointed to inquire into the circumstances, and that the Act should be altered. The letter amounted simply to this, that Mr Kimbell having been outbid, indulged in a little grumbling, and gave very intangible grounds when he did object. He asked the Board to decline to issue the licenses, and when the Board came to deal with the matter it did not, in its innocence, see that he did object, but recorded in its minutes, " Letter received from A. C. Kimbell, for self and other competitors at deferredpayment land sale 28th February, drawing attention to the necessity of amending the provisions of the Act relating to pastoral deferred payment." Mr Kimbell's objection was that the Act was not sufficiently stringent to keep out some men who had been successful, and to put him and his friends into possession. Referring to the affidavit made by Kenneth Williamson, counsel submitted that as there was no stipulation in the Act as to what use should be made of the land, there would be nothing iliegai in a man buying with the intention and under an arrangement to let the laud or sell the grass, or to allow sheep to depasture upon it, providing he had a buna fide intention, and declared to a bona fide intention to make the purchase for his own exclusive use and benefit. (Barstow v. Muir, L.R. 6, P.O. 134.) Section 82 of the Act was not aimed at destroying an agreement for the use of the_ land if it were made in manner consistent with the declaration that the selector made at the outset — that he purchased for his own exclusive use and benefit. In other words, he submitted that a man was at perfect liberty, instead of making a profit equal to so much per sheep upon the land by running sheep upon it (which would involve the expenditure of capital), to make the same profit by selling the grass or by taking sheep on terms, so long as he did not make an agreement by which Tie virtually parted with the benefit of the purchase. Hiß Honor: I do not suppose the section contemplates forbidding a man to take sheep on terms.