A BARRIER TO JUSTICE.

Dominion, Volume 3, Issue 669, 20 November 1909, Page 6

A BARRIER TO JUSTICE.

CBOWN SUITS ACT. , -' B-BOTSSION IN PAELIAMENT. ' ' i !■ i ' — - 'WELLINGTON CASES EEVIEWED. ,The subject of the" Crown iSuits 1- Act, with Bpocial leforcnco to tho cases of the Npw Zealarid Farmers' "Co-operativo Distributing Company,, Ltd, and of Motorraan Barton against tho State Coal Department, gave nso to an interesting discussion in the House of Eepresentahves yesterday. With regard to tho potation of the Distributing Company f.or' relief in respect to alleged damages caused to property by coal dust from tho State Coal depot, Wellington, tho Public Petitions M to Z Committee recommended that the matter should be refened to'arbitration The Prime Minister replied that beforo any alteration shonld bo made m the Cronn/Suits Act tho matter would require to be guen very 1 careful consideration. Thero was a tendency to try and weaken the position of the Government in regard to tho subject The Houso should sue that no alteration was mide which wduld mako it easy ior litigation to bo brought against tho Government If what was proposed wore dont> it -nould simply mean that lawyers would bo kept going with cases from January to December, Mr. Massoy- There mu«st be something wiong mth the Government , ' , Si? Joseph said that thero was a theory that it was o.asy to get heavy damages against tho Go-vernment, and an idea that the sympathies of a jurj usually went in favour of the indiTidiial, as against the Government Once the doors wero opened in tho waj that vas suggested there was not going to be ono or two cases brought against tho Government, but a sheaf of case>, and in mno cases out of ten tbe Government would hate to pay the costs "Kith Toward to the case in which a motornian was injured through the collision of a State coal wagon and a traincar, tho fact was that the petitioner ehould have brought a claim agamst the inumcipalitj, and not against the Government ' ilr Masse} But who dad fho damage' Sir Joseph said that ho was not prepared to jnoH to tho request without indicating what it would mean, so that the members could accept their share of th<s responsibilities in tho matter. In view of the fact that the Government had entered into vanous f>ocial undertakings creo-t care iliould be taken to see that reasonable protection was afforded the Government against litigation. Mr. Herdman's Views. - Mr Herdmam declared that tho Prime Minister had not approached the euhjeot from the point of new of principle, but had hinted that the agitation that existed for tho amendment of the law was in tho interests of tho 1 legal profession. Ho happened to have a But dealing with tho matter, but, like his Public Service Bill, it had been studiously kept at the bottom of tho Order Panor, and scdn lously blooked by the Government When ho was asked to bring in'the Bill, in question, ho ■was not approached by" thd legal *pro-fcseio i, buit by a mutation, expressed tho opinion ot a I very largo,' number of far mors. What these /people" siud, was that if the Government caad 'to go into a trade in competition with ordinary citizens, it should 1 not enjoy any special immunities. Hβ agieed that it would not be wise to repeal tho Act, and -that tho Crown should bo' reasonably •protected, but if the Government purchased 'a coal mine and retailed coal it should" bo

[placed on i the same footing as others "in the (business. The-Government had made .arrangements to give , prrvoto 'individuals the Tight to sno tho-State J?ire"'lnsui , anci i " Depart, jnentj-and 'what "applied 1 to '.bile' Dqpa'rtntant , , diotfd apply™ tb pother. ' * ' ' ' " il ,__ , s "Aif Antiquated Barrier." 1 Mr. Baume (Auckland 'East) uiged that (the State had no right to b<3 put in : difffcient toosihon from any'other "agency so jar as its Sratmg departments wew concerned The '.permission in connection with ,ttib Tire Insur(Once Department did not amount to much, Ibocause no one would ,insuro with the Department otherwise. It was seandalons ,of, the Government to leep up a barrier so antiquated as its privilege under the Crown Suits Act <-Tho 'time had come'for a very great modification'of the Act. Tho'State's..great .powjsi;.. should'hdl; be devoted',to enabling, it to , compete unfairly vnth private agencies," but" w> -show; how honourably and fairly a busing cooTttdbo conducted vby the Statfeiui Xnir tha" , j prcbcnt ca6o itiwas argued that what would bo an infamous and foul proceeding on the part of pnvato individuals was quite proper •when performed by , - tho Government. The proceeding was just as iniamofls as if a pnvato parson was responsible. '<>!' ■ v ,' » The Jrime Minister said that the protection afforded to the Government,, was common to all States. If tho law it as amonded as was proposed, thero would bo endless actions against the Gov-ernmont Jt would "he tho beginning of the'end of the existence of tho State Cos]' Department ' If ono of the De partment's 'horses knocked a man's hat off with ita earHhero would be ani action brought for Winding,'the man's ,oye It would cost «e orantiy at least .fliOtyOO a year-probably *100,OQO, if the Act was amended as was sug seated. , t , x , . A Serious Position. Mr. Massey said that if the of , the law meant that hundreds of people would lush into litigation against the Government, ttet disclosed a verv serious of affairs -it meant that hundreds' of peoplo thought -that'thoy had received danger, and wrong at 2?" m 8 °, £ the State Tho Provisions of , tie .New Zealand Jaw wore quito- difieront from those of-.most other countries The responsibility rested on the person doiug tho daTnu»o, ■which mthi? case was tho State Coal Departv W^ en th ? A ? 4 was ? ass « d a State Coil Department was , not thought of Mr, Bnchanaa' (Wa'rarapa) behoved that ipefore lonetho people of the Dominion would snsreton tlri3 amendmont. The Fanners' Dis > tnbutrng Company were suffering injustice every day while this state of things continued Hon. R. M'fCenzie in Reply. The Hon. ,E. M'Kenzie, referring to Motoritaan pattons case under tho Cronri Suits Act said that he greatly ejinpathised with 3aiton, and thero was no doubt that he would Tk> affected by tho accident for life. If the kHoilso gave him a compassionate alien ance [that would probably bo a proiwr thing to do, ibut when he brought an action against the lOovemmont, and tho Government was ad\iwd •that ne had no legal olaim it could only act >on that alvice As regards the case of the banners 'Distributing Coiupanj, in a weak' moment tho Solicitor-General or Attornoy■Seneral had agreed to have tho Act waived ,-and a verdict for'damages was given ngainst the Department To amend the let wonld be * very gross injustice to the taxpajers He thought that the man who put tho Act on toe atatuto Book had shown vary great wisdom and foresight. If the Act vero in Tegard to the claim of tho Distnbutin« Company against tho State Coal Jlepirtmont, probably .6100,000 would not satisfy the claims that would be brought J against tho DenartJJ, ent -. Knowing all tile fapM of thp he thought that the comp-by had not been badly treated at all. TheyiShad only a short lea=e, and if the Crown showeil c any weakness the owners of that and]? other property m tho neighbourhood would bo at the Government immediately 'Correjh a Misapprehension. Mr. Eield (Otab) said that the Minister i Jas underia total misapprehension as-to- the fact 3in connection with the claim by tho Distributing Company against the Stato Coal Department. Although damages had been given against tho Department, tho Crown Tvould not submit to waivo its rights, so that a clairnjfor an injunction might be consid- ? e Te S rettc < l 'o the mamser of the JJeriartment seemed to take a delight in the,,discomfiture whicli was occasioned the pompanj, and m tho position which he toot up he seemed to bo "wpported by the Departmental anthomie's Tho matter should le declared, be submitUd to arbitration Prior to the existence of the companj thero was a nng, th© effcqts of which were detrimental to 880 farmers. i ' ' ' ' Oiher Sneakers. St. Hanan (InvorcargiLl) -was of opinion ttat where tho Stato entered into competition With private individuals it should bo subject to tho same liabilities. It was not right to lolstflf up a State Department with protections ,antt defences which woto not open to private individuals." . ~ , , f ,- , Mrr'Wnght (Wellington. South) averred that -the 'reason why tho Government allowed the Distributing Compairy to bring a olarm for damages against tho Department was that the elections wero approaching. ' ; An Amendment' Moved. Bir. Massoy at this stago moved as follows.— "That tho voto bo redneed by J!5 as an indication that tbo law bhould bo amended so is to allow persons or hims to bring suits •gainst the State Coal Department." ALr, 'litrke (Wellington bubnrbs) intimated his intention of \otmg for the amendment He declared that ( thpf Operations of theJWal depot had boon carried on in suah a *ay 03 to interfere -vith adjacent properties Sir Joseph What about the noisy engineerfag establishments' ' Mr. luko. Weli why don't sou nationalise

: ; i /Resuming;' Mr.'Luke. 6aid, that' Barton should -'also Jieye. justice.,doriohini: ;TKe, CityiCprporatibnihadibeen'prepared to do-all in its power on'.behalf'of/Barton. ■ ■'■';■ ■ - ; : ■ >'■-~.. ,v: •''■;".'.->■-'■_ .' ":' Mr.'- 'H'Laren. - (Wellington "' East) 5 , submitted that-.Motbrmari Barton had a:right at.common . liw. ■-as / well .as under .'Workers'.'. Gomperisa-' ■tioni.^-Ct.Vand.'woiilil:.have ''succeeded,, had -if not in, the- Crown.Suits Act; Some-modification of the"Act l should'.be-mado without delay. 'V;:.-V-. ■--.■■.-\ .: .'•'... -■ .--.;. V .-' i'Th'e Pnme/.Miriisieri'.said iiaat. .the -whole .of,,the :City:';.Cotincil's: emplftyecs should be covered*by insurance. '.". - -.-- ■''.-,- , .-.'; ; ,.'Mr;;:M'LareiiV..Thes;; are protected.. < ■ ;: • ~'Prime;Minister.Condemns' City' Council, v: !, Sir. Joseplr said, that ./if .'.that .wereVtho .--case the- council should , have-paid Barton corapensa. fion,, and not,:-shirked its duty.. Their" action was' most- discreditable and .disgraceful,' for,, insteadvo'f compensating-.hiiu/ they-had "allowed him to go -...to law against the Governmont; against whom ■•■lie - ''had. no claim, with the result that- ho. missed his clianco of-making a claim against the. corporations -.-.; ;■:.:; ; .: '.Mr.. MTuaren: -You me- .begging the question. ;'Sir-Joseph : ; Jty opinion l is that the Mayor' and' councillors should now keep- Barton arid' his'wife all liis.;life. '■'. ' ■'" ''. ':■•'•■ ':■' ■'" ■'■ • ■-: : - ; :Mr. Luko i You ;.set .the -example.; 'v -!',.'•. - ; , •'' i ;*:.Sir; Jpseph.' ; dsserted ;; that if anybody had a ■olaini ■■■ against the : Government ;it •.-.: was v the City Corporation; ; If were not covered , :by.'irisnrance';it'was:a gross .'mistake,, and the' .question'should be raised at once.; If he wore member of, the.jco'nncil'nnd had\vbtcd against , the, inhumane conduct of the council: he would resign..'^;;. , ;/;'. :■•".'■'■<- -',■:■"'■ :'•'". '-:.,: ';:■;■-.;- Members: Oh! ;Oh! and much: laughter. :<; Sir Joseph; declared that, if Barton .were not coyored-'by insurance: by the i'.'-corporation .it; should-be'prosecuted..:,: ::-..:.■;. ■■-.■' ' ■' v-Mr. Baiinvo: Are they bound to do so?, .-'; -,! ~- Sir, Joseph:; They musi either "insure, their; workors .or-'tnke the position of. tho .insurer, i Barton was, in his:opinion, deserving.of com-, ponsation,: but! oiving to the. action of- the. cor-. ppration he had been prevented from getting what, was,dui. to. him. If restrictions in..the ■Actwere'removed sb'far as one Department was concerned, they', should '.be romoved' so far as all tho Departments wore concerned. 1 ' '"' . .'Mr;.,Baume; (Auckland: Bast) said.'the real point was something yabove and beyond any particular case; sbmething'.which, went to. the very principle: of -legislation. It ■ was his opinion f.that restrictions 'should ;. bo removed-,' to, allow actions to.he brought'afeainst trading De- ■ partmerits;.■■;:',,'■■"::"-■■,..;-• -;■ ■■•■ ■-. •' ■:','■ .;'.LThe Hon.; declared.that nobody; "could cito ; 'a,., case whore ■: the'.- Government 'had riot dorio justice .to a claimant. \ . ' - -~.'; •• ;':Mr:;T;.;E. Taylor :' t J;:Meikle;. ■■...'■ •■■) The -Mihister-^lt" is'quite,dear that Mr. ,Tay-. •lor';'does■.not'; : b6lpng ,to;.the legal'..' .profession, ; otherwise.he .would -not cite that^case:'-'lf; •he added, the Actj,was■ amended it '.would-mean: hat the Crown- would, simply be blackmailed— \ be'-would .riot■;say, by.';the ;■■ legal ;, professiori— : members could form'their-own'opinipis; • ''! ■ ;.Mr.;>:; Ksher., :• ■ (Wellington: ■: Central);': re. 'marked' .that; -for,:, lack "of -.; ! kripwle"dgeV .'the: dissertation' :'■ '-'by-", ; .the ;i-.Prime:' ( .,: Ministei reicceded; anythirig-.thai 'Had been ihearil from "him this' session.-:.Ho weitt. ori to give-Setaila , of ;the Barton : basa..• .Every..;cpip'ordfiqi woiker .; was -protected .by -.insurance. "Pending: ■ the- set-: tlemeait..of,' the. liability ■ of .the. Government, the.Cbrporotion.p'ai<l'Xßaftoh ; in -all \£lso. ;The :Cour.tV.liad already.," , , held -that Barton , had 'a : ;righitful'claim,'..but,:it' also held..tihat,'-;owing; ;to th.e;Aot, he:had no , redress. .--.'.. •'■.'■ ,:■■. ,• :.■' Hon." E.;.'M'Kenzie: : .You..are : entirely, wrong.' '■i}\£?/:'■;'.';'•■' -Other^;Members' -Views'. w-: ; ■;:;■;? ..■-'■iJJjrl-r.TL'-.-Jr-E;; ; Taylir:' '^Christchurch.' Noith) .thbright. that,. just af.-the',CrQwn becinie : ,a ; trader,.:the:old : feaso'ns vwould'.disappear for. leaving /the. Ministry, to.' usurp '.a. f uiuStiou wnich ought.toHbelohg'to.a.:Cou'rt of.Justice-qrily;. .' '.V.The'Prinie Minister said,-'that if.. the''.Bistri'bating -'claim*, wero-allowed- to-be' ! happen- , that' <dl,j'.asi^o^r^-tbf.^tto.iltawn : -Hall^'(wilu6'h : . , .w.ae'' iin;;,fhe !vicinity);'-arid: the'.proprietors 'of ; the! '^^I^oai£v(w^ea>wafl^alM--'eittui^;\neirby), : aiid i inany:otKersiin..the locality,', -wbul'd;bring ':Simi|!ftr':'a^tidi^'';/Xhe'^uWiiii^'.'re^^t'!af''all<t°n r -'- ■in^^/suchi'-aotion^XWj.be"'.brought:-would] mean: vthat 1 *he l . State- coal.-yo.fd .Wellington .would .beidJ<^s. iV jlC,w^ ;n€otipri.-.-;Tfith : ''similar : riui-; ■.salicey'.w'eTei.naver;. alleged;to eidst;by 'adjacent iproperfy-hblderte';!^ , :' -;. > -if.'.-i". •i.^lfr;.?Liike:! i ■' soreenirig'-mafthinery" in .p'rivirte ;yardsivrv; : !> 1 -'■•.;"-■■•" ,'■'. • ■■••'■■..•■: -.' : J'_" , : >.SnSJo^e'i)h:;What,?.:;.;^.;/;:,-':- ' [ij-tf.v. :-]Mr.-'Lukft::!'At -the Sta;te',-yara; : in' Wellington' : ,tho ) CQal.:is,,ele ; vated.'iof-t,''Or. , 50ft...-■;. ; \'.:-. v : . < ~..; ,■'! Sji:.Joseph.':'(Where , vwotild■ you.put' the• yard? ;■ -'Mr^.-.PKherr-'iWliy^nqt-<pnt ''it- in'"'Tinakbri' Bead? (liaugliter.p'•■•«!«■- l -"v-- 7- ."■■■.,;■■-.-, , - 1 ■ ; ;iha't;vth , e i Diatributing'.-Company: had -suffered- sbnie :iri- • jury.; ,-,- He thought.., that-"the.. Act 'should' be , waived in - cases'- where- the 'comiriittee •recomi 'mended. .;;-'::, ; : r '■■'■:■,■ '■ ''. '■■■■','■'/'■'■/ : , -p--'V ! ""Z -I Mr,-.Massey 6aid were' plenty of 'Government kites'' witlin : a;,inile of ithe :centr« of. tho'city. .Th6re"-.wduld'bp iio need to ehift '.the,;yaxd if '.tho -methods" qf ''operations■ tcoto .altered. .The"actiorij'bf;th^i'.-Qov«ininer4''ip , "i(>i gard-lti Jfotorman'Barton would be; condemned :even:-in/.Eussia." 'He. appealed'.,tb;:mombers t«. :se€i-that justice and '.fair'-, play. were given 'in this and; other, cases.:;-.'■..'.. '.J.. ; . >. : .: . ■ -~ ;:"Sir ; Joseph Ward said ho had' always 'recbg- , . riised that! Barton .'should . : have. cbmperisation,' .;bnt,itj-wa-si.the.!City'. Council-whioh-was liable. .;;The'Prime' Minister-.sppKe..for,ten minutes,, -and. Mr. ;Massey ; interjected: "Is;this ; a -stone- , wall?-^--;"^ , ";; ■•''■^'i''r::^'-'^':- ; ■".-;■' '-. ■;- '', ■ Mir'-'.-Serries JCUMi anga). ''saw :; other' caused; . for 'repealing,, the -Crown- : Suits. Act ''so ••far ns it,;'conoe;m^!the'VState/'Coa'U^p'Br.tmeiit'.\--.'':lf i■one oidered five tbns'"bf-fcbal"from.the Department, andreceivedfivo tbnsofrslapk; one could not.sue for breach -of - t :'canl;ract..'. What was the'use,:therefbre,'-;ofvdea.ling .with;the-Dopa'rt--l.m'ent;?-,'; 1 "'-".*' ■. ; ;'.->'.'--_'-'-'--:'V.'' • : ;-..-'■.'■-;■■.{ ".-.':..' -.-' ;V«. .'.Mr; , /'Laurenson'i. (Lytte'Hon).- 'argued ; '■'. that ', tftp;'liability;■;was'.jjbn Ji '■ G..'.Wilson.- and - the'; Conservative eleriient who, were'anxious;!to break down; every State enterprise; were , , , he 'asserted, 'at the -back of this agitation.;^Mr.;.Laurenson-described how, : if;ithe.:.-Act, -was 'amended, a "man.-, might i!20p0;- damages \is: compensation',f<sr- hay ;fev«V. caused'Tjyythe proximity of-aState'farin.' .;. ■:■ ; .The"ameridm'ent'was lost ori : a-division', by 29 ;vpte3>tb : ; ; 2s: '■"■■ : ' i .V-~ :, '■-: ' '- : -■: ■.■■,] V ','■.■■ .^V;The';BiT^ibn; , Lst'r.T!•ai■■■fls!■■:foljb%si-r•• : ' ■••..,■; 0-!B,-0--M :^ES -M ■:.}''.> -:^-'- • : :.> -~'' ■.•Anderson;;:;"; ■.:.;';. M'Laten;- '■ .'/ . . ' Eaume. ';..■■, ,;.'. , •.: lliilcolm ■• .: '•:'■''.,'..-.':.-■ iiuick'' , i..'... ;';',■'•■ .•'■/'■■■.'■' Minderd-;- .■.■.•,''■;',•;-'.'.■ 'Divo I;':,::,' ''..:;; Vv /i^lassey. : ' J ~"';,■.. Keld'' - !:; ! ..'■"■''/f:.:',.- : '.' ; , ! ' Seivirian , -. ■ :' ~. ;.. ■ .Pishbr, ;:"-Nosworthy .^''■.■:■■'.'■■■': :''" ;■-.Eraser ■''■;■,: ■..-'■'•:'.• Pearce? ':■:'■■ ■ ":'• ':;■: '■'■:.:■" : :.:PhilU£is-. "''"■'.■''■ "','.■.'.•■ ; ■:' V ': ; V" : Scott, ■; *'-< ' ; HerHesAV " : r'J, ?/■':;' Taylor,; T.,E.: : ; -."-,.-. ' Hino,-■■' '..■■'-• '■■■:■.■ ■:■■:■'■. ..Thomson,. G.-.M. - '■■Lang , ', ■':'■':■ ' '.':"■;. ' '■ ■■"'■":.'• = ,' .■■:-■ Luke '':■■■•'■'■: : .-. : ■;■;"//i',/.:ir.;:':■':; ;,■■..■' :■; ■ ■■/ ; ;-:;:?.'Z ".A',.-..--,.NOES; : '(2?)V ; .' ,'.'. ;- : ; ; 'V';- : :'' ' :;Arnbld';:'; v ,../.:...;.■,■ :; i/iaurenson-Vv'-'■:';../' V -.-'• ,Biiston ;'"r ' ■['■"',■ I'-' .:' M'Kenzio, Hon.,E. CairoiJ.,.:::>: ; V:'.',", v ; 4Mackenzie| Hon. ;T. ,J ;;Glark":.-:'.■;,;-:,;'..;,;■:: :,->;gata-'■•. "-'.■■ •:.■.''•■■'•. >.'■ 'Colvin^xi- , ; '■;;•. ;■■,';.:" -Parata: , : '.■■.■;'•■ -. : •■;}■'--■ Craigie ■■ ,■;■:.,,' .Poolev •.;,.,, , :. .'■'-..'. J '- Ddvey"-"v : ".''- : "','- : ' : ". : -'','■.'.'-'Eeod ..■■'.■■'.'■ ,-' ' ■''*"■■.'■:.. ■' iDlUbii"'-..- • ': ,: v,-'V':-"-'ViKoss : '<-. ; !<;'' :-' : ' ■' ■ ■.'Ell---'.'•.'..■' ,:■ ,"- ; -r :.;'v.: ; -: -'tieililon-'- 1 -. •■"•'•,'.';.'" ?':-.'■ 'Fowlds' ','.:■■ •.', ■ ..■'■.-.■; Smith.:,;;.:.. ..,:.:. v- .-':■• Graham ; ; ;:.':/ :; :Stallworthy; ; :; ']'',■'■ \. Hall - -'■ ''■ - • :.*■ ■;■ ■Tβ Ea-ngihiroa,;' • - . : ■ "Hogg,;;- , . :■■;-■": ;:>;;Ward; :-.'; ; ,''■■:; - : ' Hogaji^;S:, ; '•'■:':■;. rWitty; -. v vn: ; ;. '-. . Jennings ; .'"■. . :; "■"".'';■, -.'■'-, .;.■;■'■ ; :.,: ■ ,-:..-'■