LAW REPORTS.

Dominion, Volume 1, Issue 167, 8 April 1908, Page 4

LAW REPORTS.

COURT OF APPEAL.

THE OTEKAIKE ESTATE. PREFERENCE TO EMPLOYEES. .VALIDITY OF TWO GRANTS OF LEASES. Tho Court of Appeal was occupied yesterday with the hearing of argument lelative to actions brought by Hugh Campbell Wilkio M'Kellar, and William Wilkio .Mitchell, station managers, to eompei the Otago Land. Board to grant to them renewable ■ leases, without competition, of allotments containing 3913 acres and 2307 acres respectively in tho Otekaiko Estate, which was acquired by the Government for closer settlement purposes. The actions aro of considerable importance, insomuch as they arc tho first which havo been brought under Section SO of r.he Land Laws Amendment Act, 1907, which reads as follows: — " Before any land required under the principal Act is open lor public selection, the Board may, with the approval of tlw Minister, grant a renewable lease of any allotment thereof without competition'to any person who has been employed by the late owner thereof for at . least five years, immediately preceding its acquisition, and who, by such acquisition, is deprived, of his employment, at a rental to be determined by.,tho Board, '/cmg £4 10s. per centum of tho capital value of . tho land as fixed by the Minister in : accordance with Section ol of the principal Act. "Provided: That such person sliail make the necessary declaration and otherwise comply with tho conditions required to bo performed by an applicant, for Crown lands." STATEMENT OF CLAIM.' The plaintiffs, by their statement of claim, set, forth that the Otekaiko Scttlcment v was acquired by the Crown under tho Land for Settlements Consolidation Act, 1900, and its amendments.from Robert Campbell-and Sons,. Limited, and allotments wero designated as Section 30a, and Run 23b and Scction 31a and Run 28c, being areas of pastoral land with low-lying land considered necessary' for tho proper working of tho pastoral land added thereto. On December 5, 1907, plaintiff M'Kcllar made application at the 1 and Office at Dunodin for tlio grant to him of a renewable, lease'of Section 30a and Run 28b, and plaintiff Mitchell applied for tho grant of a lcaso in respect of Scction 31a'and Run. 28c, without competition, on tho ground that they wero porsons entitled to such grants within tho meaning of Section 80 of the Land Laws Amendment Act, 1907. At the time,of making tho. applications plaintiffs, paid to the Receiver of Land Revenue at Dunodin £132 os. 9d. and £151 18s. 7d. respectively on' account of the applications, tho sums including the fees for tho leases and tho cost of registration. "In all other respeots plaintiffs complied with tHo conditions required to bo performed. Om December 5, ,1907, the defendant Board, after duo inquiry, granted plaintiffs' applications, subject to tlio approval of tho Minister for Lands. Notification of tho approval of their'applications was'; received by plaintiffs on January 17, 1908.' Shortly after February 6 plaintiffs received from tlio Commissioner of Crown Lands for Otago: communications,' in which ,;t¥w'As: ted that certain doubts having arisen as to'" tho correctness of their statcmcnts.'in.. respect of their applications, and the legaiityof. the,, grants having been called in question, tho Land Board had decided to hold a rehearing of tho applications with .a view io! further investigation of the facts. Plaintiffs, upon, boinf;, requested so to .'do, attended a further' meeting' o£ tho Board on- Februaty 12, and wore further examined on oath. Prior thereto their counsel protested against the jurisdiction of tho Board, aild claimed that,,tlio grants could.*not' bo recalled. Afi^'trltKaring : the evidence'of plaintiffs, also that''of Mr. Campbell (tlio managing director of-Robert ICampboM and Sons, Ltd.), and lHat ;of Mr. ■'JameV Roberts (of Messrs. I ''Murray Roberts and Co., agente,. etc., ;for the Company), tho Board decided that such oviderico substantiated the statements made-by the applicants on December 5, and resolved that tho Minister 1 for Lands be informed that\it could'not' alter tho recommendation: previously made by it in favour of Messrs.' M'Koliar' and Mitchell. On February 20, 1908, plaintiffs,, by their solicitors, telegraphed to the Ministor asking, in view of the fact that , tho Ote-" kaike stock salo would tako.place on March 3: .and; that, it was .of great moment that plaintiffs should buy then, if it .were intended to challenge .'their rights to tho: leases.'" In reply, the. Minister stated that ...tlio .matter would bo considered, upon his return to Wellington. . A further 'telegram'.was then dispatched to the Minister repeating the' protest, made to the defendant Land Board against the propriety of reconsidoratioiv of the Board!s original-recommendation. The Minister answered that thero need be no misunderstanding, as lie was jiot considering' plaintiffs 'as acceding to .or protesting against his actioii, which was being taken quite independent of them. Ori ; March 2 plaintiffs' solicitors wired to the. Minister: "Will our 'clients'be,safe to risk buying sheep on the assumption that they will ultimately get leases?" Next day the Minister intimated that: it .was. not intended to approve the action of tho Board iir granting prefcrenco to plaintiffs. On March 5 tho Commissioner of Crown Lands for Otago informed plaintiffs' solicitors that tho intimations sent to the'plaintiffs on January 17 wore now withdrawn; also . that the deposits , lodged with the applications would bp refunded on 'request. Plaintiffs' solicitors wroto, in reply, declining to recognise the right of tho Minister or tho defendant Board to act in the manner asßumod, and warning tho Board against dealing with the allotments in question, at it was probable' proceedings would be taken to" test tho position. On March 7, 1908, the defendant Board advertised that the .allotments in question, Trith other portions of th«'settlement, would,'bo open.for selection on rcnewablo lcaso at Dunedin and Oamaru on April 7, that tho ballot would bo held at Oamar'u on April 8, and that immediate possession ..would be given thereafter. . Plaintiffs therefore prayed judgment as follows: — " (a.)-That,a- writ of injunction bo issued restraining the Board and' the Commissioner of Crown Lands from disposing of the sections in question by way of'renewable lease in.prejudice or derogation of the plaintiffs' rights to renewable leases thereof, or in prcjudieo or derogation of their right, title, and interest by'virtue of. the premises in and to tho sections.'and runs. (b.) That a writ of mandamus do issue commanding the Board to cause to be executed and issued, and the Commissioner of! Crown Lands at Dunedin to execute and issue, renowablo leases of tho sections and runs in pursuanco of the grants of tho plaintiffs' applications .therefor, the plaintiffs hereby offering to execute such leases on their part, when the same are made available or tendered to .them for that purpose.; , DEFENCE TO THE ACTIONS. Tho statement of defence set out that the allegations that allotments designated as Section 30a and Run 28b, and Section 31a and Run 28c, were areas of pastoral land with lowlying laud considered neocssary for the proper working- of tho said pastoral lands added thereto was untrue. Defendants admitted that plaintiffs had been employed by Robert Campbell and Sons, Limited, for five years and upwards immediately preceding tho acquisition of the Otekaike Settlement, but doiiied that they...wero employed on tho settlement, aiid that t-hoy wero by such acquisition deprived of their employment under RobertCampbell and Sons, Limited, within the moaning of Section 80 of tho Land Laws Amendmont Act, 1907, or that they were in any respect persons entitled or qualified within'the meaning of tlio section in question to receive grants of renewable leases of allotments of tho settlement without competition. It was true that the defendant Board, on December 5, 1907, decided to recommend tho Minister for Lands to approve tho plaintiffs' applications, but it did not'in any way granttho applications.'as, .Without- the express approval of tho Slinister,. it. had no-power to do so. The minute of the-Board on the subject contained the following words: "Granted subject to the approval of tho Minister." On December 7, 1907, tho Minister approved the

applications, hut such approval was not the approval required by Section SO of the Land Laws Amendment Act, 1907, and was subsequently withdrawn. Defendants admitted that, on January 17, 1!)0S, letters were sent to tho plaintiffs by tho Commissioner , of :Grown Lands intimating that the plaintiffs' applications had been approved by tho Minister for Lands, but contended that no actual grant by tho Hoard of the plaintiffs' applications followed upon such intimation, or had yot boon made. ' ;. Mr. Hosking, K.C., of Punedin (with him Mr. AYhito, of Duiicdin), appeared on behalf of tho plaintiffs, and tho Attorney-General Dr. Findlay, K.C.) and Mr. S. Solomon, K.C., of Dunodin (with them Mr. Richmond) for the defendant Board. ARGUMENT ON BEHALF OF PLAINTIFFS. Mr. _ Hosl ;ing, in opening the case for tho plaintiffs,' stated that, in view of tho decision of the Privy Council in Spcncc v. Pearson, the question as to whether an injunction would lie against a. Land Board was,' ho thought, not likely to bo raised. Tho question at issuu in tho actions depended upon tho interpretation to bo placed oil Section 80 of the Land Laws Amendment Act, 1907. By that Act tho renewable lease system was substituted for tho lease-in-perpetuity system. Section 80 was designed to cnablo employees with certain qualifications to obtain grants of leases of allotments on estates acquired by tho Government without competition. Plaintiffs had been in the employ of tho owners of the Otekaike. Estate for over live years immediately prior to its acquisition. It was true that they had not been employed on tho Otekaike Estate for that poriod, but owing to the acquisition by the Government plaintiffs- lost their employment. . ' . ~ Mr. Justice Edwards: Wore both 0f...th0 plaintiffs employed on the Otekaiko; Estate at the timo of "its acquisition? Mr. Hosking: Mitchell was not employed on'tho Otekaiko Estato at all) but lie was for eleven years employed on a subordinate) estato called tho Plains Estato. M'Kcllar was employed on the Otekaike Estato at the timo, but had not been employed on that particular estate for five years. My submission is that tho question whether tho facts wero sufficient to justify tho grant of tho leases cannot bo dealt with by the Court, as it has already ibeen determined by tho Land Board;.the decision, of., which is, I submit,, final. • ■Mr. Justice Denniston: Is the question not ono of law? Mr. Hosking: Even if tho question is ono of., law it is, I submit, ono upon which tho decision of the Board is final. Theso people claimed to bo entitled to leases, arid their' applications wero granted by tho Board and subsequently by tho Minister, but .tho applications; were subsequently declined .owing to tho Minister withdrawing his consent. - OFFER. BY THE ATTORNEY-GENERAL. Tlio' Attorney-General: If Mr. Hosking is content to arguo tho caso only on tlio question, of tho qualification, of tlie plaintiffs as applicants I am prepared to waive all technical objections. 1 '•■■',. Mr.- Hosking: I submit that the Court has no power to .inquire into the question as to 'whether 'tho plaintiffs are .qualified, for the reason which I havo already submitted, viz., that tho Board nlon'e has jurisdiction to determine that question.' ■ Mr. Justico Chapman: I presume that tho Attorney-Genoral is at liberty to.arguo with respect to the constitution of the lease and' tho consent of the Minister? Mr... Hosking:'The Board heard evidence before coming to its decision, which was approved by tho Minister: v ; Mr.; Justice Williams: But is not tho main .question whether ' plaintiffs—admitting that tli<sy were deprived of their employment, one directly and tho other indirectly — come .within Section SO? And is that not a matter of. law? ..If you can't agreo on.the facts, surely tho finding of tho Board is not conclusive! A Board can't grant land-to peoplo Y'ho arc not entitled to it; Mr. Hosking: If the Land Board has certain,^facts beforp.it. which tend both ways—, one -.showing, that tho applicants'*, lost- their' employment. and thpother that they'-didn't • —thifcg aro iriya'sense, aS.jury.'• « , ~i'HE FACTS NOT CONTESTED., The'Attorney-General: Wo don't'contest tho facts;/.we contest tlio inferences. ' Mr.'Justice Bennistpni 'Who- has'-aUthorised; tho, Boiird to'iirterpret the' statute ?.' ' Mr. Hosking: The Crown Land Act, 1892, makes it tlio sole arbiter. Tho Attorney-General: With regard 'to M'Kellar, two questions, arise: (1) Whether it was necessary for him to havo been em-' ployed on the. Otekaiko Estate, for five "years, and (2) admitting that ho was employed on tho'estate by tho owner'after its acquisition, whotherho was deprived of his employment. Mr. Hosking: l Tho, point raised.'in.'the pleadings of the' defence is that tho approval of tho Minister was not tlie approval required by tho section. ~ ; Mr. Justice Williams: Tho Attorney-General says that'if tho-Court.decides that-tlie applicants como within: tlie section tho other questions will bo waived. ' '■ ' ' ' Mr,-Hosking:. My submission is that tho Court can not go into tlio question whether the Board - was warranted on the facts in granting tho applications. If a Board gives a decision on the facts and the Minister has given his approval there , the matter must end. • . Mr. Justico Denniston: Tho Board might decide that applicants who wero not entitled to, grants were entitled to them, and if tho Minister granted his 1 approval lie would be' justifying tlieir .wrong finding? In other 'words, you say that the Board is tho sole arbiter? ■ . ' '. r ■ . . QUESTION OF LAW 01{ FACT? ', Mr.' Hosking: I must guard myself against giving anything'away .whicli I should hold on behalf of my clients. . What is now sought to bo dbne is to make out'of a question,of fact a question of law.. A Land Board is, I submit, just like an Educationßoard or ' a Charitable Aid Board--an independent body; It is set up as a tribunal between'tho Crown, and tho subject. Mr. Justico Denniston: And are we hero siinply to. enforce' the' findings of the Board ? Mr. Hosking : Yes. - Tlie Attorney-General: If Mr. Hosking establishes that tho Court can not inquire into the qualifications then I shall raiso technical questions. . Mr. Justice:Denniston: I. don't, of course, suggest, Mr. Hosking, that you should abandon your position. Mr. Hosking:.! am feeling my way to see' if I should accept my friend's proposal. (Laughter.) Mr. Justice Cooper: Is thero a technicalitv looming in tlio distance'which will put yoii out? (Further laughter.)' JURISDICTION OF LAND BOARDS. Mr. Hosking: At any rate, I have been candid with tlio Court. I havo been drawn into it by tho raising of.tho,question as towliother this question is one of law or fact. My submission is that a Board has sole power to determine not only matters relating c-o administration,- but doubts under the enactments relating to Crown lands. Subsection 7 of Section 48 of the Land Act, 1892, roads as follows Every matter, doubt or difference .relating or incident to tho sale, letting, disposal, and occupation of Crown land, or to the interpretation or meaning of any enactment relating to or in connection with tho'Crown lands, or to any mdtter or thing done under such cnactmont shall be heard and determined , by the Board." Tho subsection following was worded as follows: — "Tho decision of tlie Board on all matters to bo by it heard and determined so subject to the provisions of this Act relating to Land Board appeals to be final and conclusive." If' I don't accept Dr. Findlav's offer I should argue that tin* question as to tho qualifications of the applicants had properly been determined by the Board, and that if the Minister acted and accepted tho ; Board's finding ho was bound by it, and if ho sought to withdraw his approval ho could not succeed. In reply to Mr. Justice Williams, Mr. Hosking stated that he would like timo to consider whether he should accept Dr. Findlav's proposal, and the Court took the luncheon adjournment at 12.20 in order to enable him to go into tlio matter. STICKS TO HIS GUNS. When the Court resumed in the afternoon. Mr. Hosking said he had bad an opportunity of considering Dr.. Findla.v's proposal, and had decided that his best position was to go down with nil his guns on board. He had intended-, arguing -;tho question as to

.whether, the findings .did,'.or,,did"not,, justify tho point, and he would have to submit consideration to the Court on that head if the conclusion was como to fiat that point had to l)o decided. As to tho question whether the Board did grant the applications for the renewable leases Lo the plaintiffs, ho submitted that it had dono bo. His next point was whether the approval of the Minister,' admitted to have been given, was such as was required under Section ,80. ' ■■ Ho sub- 1 initted that under the -section tho Minister's approval might be-given before or after the by the Hoard. lie submitted that the Minister's approval could not bo withdrawn, once having been given, unless misrepresentation or fraud were present. A. fourth point was whether employment on the estatei acquired was requisite, and he submitted that it iyas not. He urould also show that employment had been lost" by the acquisition of the estate. Mr. Hosking said lie would contend that tho Land Board had decided the question of fact involved': that the .applicants had come within Section ,80, and that that decision could not now be altered, unless misrepresentation or fraud could ho shown. Ifr. Hosking then proceeded to covcr the various Land Acts and amendments. In'passing he pointed out that in all the statutes only an arbitrary interpretation of " landless" applicants could be obtained, and it was left for some tribunal to render that interpretation definite. He also argued that the principle of preference without the -ballot bad existed, under tho Land Act of 1000. Mr. Hosking. then reverted to tho matter of the Minister's approval having boon given. . . "■Mr. Justice Williams (to the AttorneyGeneral): Do ypu concede, that if ,the Lnntl Board properly approved of tho granting of tho spnlications tho rights of the applicants wo.uld bo absolute? Dr.Fihdlay: If the approval of tho Minister , h*d been .obtained before the Board passed the resolution granting tho leases the rights of tho applicants would have ■ been absolute. Mr. .Justice Williams: That is, of course, assuming that the Board's construction of Section 80.is.correct?. ... . .. ' Dr. Findlay: Yes.' AN IMPORTANT POINT. Mr. Justice Cooper: The approval of the Minister must' be precedent to or conteiu-', poraneous with tho granting of tho applications? v ■ Dr. Findlay : That is my contention; . Continuing, said that he did not deny that thero might be precedent approval, but the section, in his opitiion, did not require precedent approval: tho section stood neutral, on the question. ... ■ Mr. Justice Chapman: Did the Minister apnrov'e subsequently? . Mr'. Hosking.: That is admitted in the statement ofvdcfenco. If a grant subsequent to tho Minister's approval is necessary wo can show, that also'.', ; Mr. Justice Demiiston: Do you suggest that the confirmation of .the minutes of tho meeting does more than confirm tho fact that something was : don'e?" Mr. Hosking: Wlicn the Board read its' minutes after receipt of the anproval of tho Minister'there -was mental adhesion on the part of members to their previous consent to the'granting of the applications. ' Mr. Justice Williams': Supposing that the Minister had not approved, tho minutes would have been confirmed inst the same! Mr. _ Justice Denniston: The _ set. of confirmation! only confirms the record of what . was done at tho nrevious meeting. ; ' Mr. Hosking: It is. I-submit, sufficient for me to show mental assent on the part of the .Board after the Minister gave his proval.At ..this stage the Court adjourned until 10.30 this morning. •