"NO POLITICS".

Auckland Star, Volume LXI, Issue 262, 5 November 1930, Page 8

"NO POLITICS".

JUDGE'S STRONG STAND.

UNUSUAL COURT ACTION.

CRITICISM OF GOVERNMENT.

NABOTH'S VINEYARD PARALLEL.

Coal, tramways, political matters, power supply for Auckland, and Biblical quotations made up the pot pourri at the Supreme Court this morning during the hearing of a Waikato application , for an injunction. Several plaintiffs at Glen Afton sought an order to restrain Glen Afton Collieries, Ltd., from constructing a tramway across what is known as the McKinnoh property, to give access to the MacDonald property adjoining, which it is proposed to develop for power purposes on account of the failure of Arapuni. Mr. Justice Herdman heard the application, and Messrs. A. H. Johnstone and W. H. Cocker appeared for plaintiffs, and Mr. E. H. Northcroft for the defendant company. Mr. Johnstone said that the plaintiff owned 2342 acres of land, which was leased to the defendant company. In July last defendants began to construct a tramway for about a mile across the McKinnon property to connect the MacDonakl property with the Glen Afton railway station. Under the deed of lease he contended that defendants were under an obligation to pay a way leave of 2d a ton on all coal taken over the McKilinon property, but that obligation had been denied. Counsel said that under a recent proclamation the area taken was 3G acres, and he claimed that plaintiffs were entitled to damages, and certainly to an injunction. . Righta of Plaintiffs. Mr. Johnstone said that the proclamation, which was made, by* the Government, had no other object than to defeat the rights of the plaintiffs under the lease. There was in existence a definite contract to pay the plaintiffs royalty; and a subsequent contract had been entered into by the Crown and the defendants, without the knowledge of the plaintiffs. The property was leased to the Xew Zealand Co-operative Dairy Company in 1922 on substantially the same terms as it was leased to the Glen Afton Company, which was a subsidiary company, in January, 192"). The.re was no power given in the lease to lay down tramlines except on the plaintiffs' property without payment of way leave of 2d a ton. Proceeding, Mr. Johnstone said that in July last, following developments at Arapuni, a lease was obtained by the Glen Afton Company from the- Crown of the Mac Donald property. There had been negotiations with the Auckland Power Board for the supply of coal. The bargain between the Government and the defendant company could only deprive the plaintiffs of their rights to a way-leave. Mn. Northcroft: That js strong language against the Crown. His Honor: It may be necessary M the Crown, under the Public Works Act. to exercise a greater power thaji is possessed by plaintiffs under the lease. Mr. Johnstone asked that if the plaintiffs had a right to compew ionmm.it had been suggested, equivalent to tlie royalties why had there been any trouble?' Why did the company not pay th M;: Oy Noi y theroff. Twopence a ton on the coal would amount to about floOO a year. It was never contemplated that such a payment should be made. "Bristling With Difficulties." Mr Johnstone: The whole thing_ is bristling with illegalities.and oppression Four days- after the agreement was made instructions were issued -for the construction of the tramway so that coal could be delivered to the Power Board from the Mac Donald mine in. s x months. There was no selection 6f:a route, but the defendants simply entered on the land and went where they llk lTi d 'reply to his Honor Mr. Johnstonc BaS defendants had no right under he lease to do what they had done. They had made a bargain with the Ciown, and under that bargain they had entart on to the land. Could that be regarded as in pursuance of a lease or was it intended to defeat the lease? "Where any confiscatory legislation as involved the Court always construes its nature," continued Mr. Johnstone. By a ™v ce the defendants have taken a piec of our land, and I am in hopes still that an iniquity cannot be perpctrated. n this way/ and the Court will be ablβ to construe the document so as to pre-, ; serve our legal rights.' "Give Me Thy Vineyard." "All the powers of the Government and indeed of invoked and placed at the disposal of the defendant! company for the purpose of defeating these simple farmers in the Waikato." j Mr. Northcroft: For a few pounds. Mr Johnstone: One is reminded of the Biblical saying, "Give my thy vineyard that I may have it for a. garden ot His' Honor: So you say Naboth's vineyard has changed liande? Mr. Johnstone: Yes. Ahab was the man who took it. Neraeses followed on his misdeeds, but I do. not nor do my clients wish that any such result shall follow here. In the course of a further statement as to the intentions of the plaintiffs, Mr. Johnstone was interrupted by his Honor, who said: "The ethics of the subject have nothing to do with it." "If you want a short cut to give ,property now all you have td do is to obtain a middle line proclamation and then next day. take the land you want without notice," said Mr. Johnstone, in giving his interpretation of the proclamation, under which defendants' had entered upon the property. "It is a very recent and very unusual Statute. The whole agreement with the Glen Afton Company on July 11 I contend is ultra vires and void and they have noright on this property at all." His Honor: But the Crown l>i^ taken this land. » Mr. Johnstone: They have taken it to interfere with oxir rights. His Honor: Then you have the right to compensation. , \ .. Mr. J.ohnstone: And also to an injunction. i His Honor: Has not the Crown under the legislation passed to take a piece of land for the purpose.of giving access to another piece of land? Mr. Johnstone: It seems that all that was ever contemplated was the taking of land for access. When 36 acres istaken that, is not an example of taking land for access. It is crafty legislation.

Counsel Objects. Mr. Northcroft, who objected strongly to counsel's language, said: "If he thinks these are appropriate proceedings in which to attack this proclamation then I should have the opportunity to defend." While admitting that Mr. Johnstone may have had a cause for action at.the commencement of proceedings in September,' Mr. Northcroft said: Fifty per cent of his remarks .have been devoted to vituperation of my client and the Cabinet. His Honor: I don't know about that. Mr. Northcroft: He has talked about crafty and iniquitous legislation and has likened my client to Ahab, and if he has done it facetiously he has at least done it in the eye of the public. His Honor: I said I was not concerned with the ethics of the case. Mr. Northcroft: In the interests ol the Cabinet, something should be said | in reply to the criticism. His Honor: I don't want that. Perhaps I should have stopped Mr. Johnstone, but sometimes counsel make observations in which I give them some latitude. Mr. Northcroft said that in fairness to the Minister of Mines he should have the right to put in a statement which he had prepared. N Not a Political Platform. His Honor: I cannot allow this Courtto be made a political platform. These are observations relating to the history of the matter." Mr.. Northcroft: They are criticisms of the Government. "There are other ways of replying than by making use of a formal document," said his Honor, who reiterated his determination not to allow the Court to be made a political platform or a place for the making of speeches in justification of any political action. Mr: Northcroft: It is unfortunate that my friend pursued his attack on my client; and' on the Government. His Honor: That does not interest me. It has nobbing to do with the case. This matter must be decided on the law and nothing else. Mr. Johnstone said he had assured Mr. Ncrthcroft before the hearing that he had no intention of abusirfg anyone. His Honor (to Mr. Northcroft): Purhaps you have been uriduly affected ..by what has been said. Mr. Northcroft: If it had been said in chambers, I would have taken it in the bantering way in which it was said, but as it was said with force, in violent language, in c the eye of the public, I cannot, allow it to pass. His Honor ruled that he could not allow Mr. Northcroft to read his statement. Mr. Northcroft: Then I shall make the statement otherwise. The case was then adjourned sine die to allow Mr. Johnstone to make further submissions on the legal positon under the new Statute.