HOROWHENUA AGAIN. PROCEEDINGS IN THE SUPREME COURT.

Evening Post, Volume LIII, Issue 109, 10 May 1897, Page 6

HOROWHENUA AGAIN. PROCEEDINGS IN THE SUPREME COURT.

ALLEGED EXCESS OF STATUTORY POWERS BY PUBLIC TRUSTEE. It will be remembered that the Horowhenua Block Act, 1896, provided that an action should be commenced in the Supreme Court to appoint Major Kemp a trustee of the block, and to test the validity of the dealings between Sir Walter Buller and Major Kemp. It was also provided by the statute that the action should be commenced within six months of the passing of the Act. THE POSITION. .This morning in the Supreme Court in Banco, before the Chief Justice, action was taken m the matter by the defendants in the statutory action, which appeal's as the Public Trustee and Wirihana Hunia v. Sir Walter Lawry Buller, K.C.M.G., and Heiha Keepa te Rangihiwinui (Major Kemp). Sir Robert Stout appeared for Major Kemp, Mr. H. IX Bell for Sir Walter Buller. Mr. Stafford for tbe Public Trustee, and Mr. Baldwin for Hunia. The affidavit filed by Sir Walter Buller set out that he was informed that no authority was given by tbe Horowhenua Block Act to join any plaintiff with the Public Trustee; that he believed the defendants would be greatly prejudiced by the joinder of a plaintiff who was not a ! Government official, and had no public 1 duty in the matter, and by whom, the proceed ings might be unduly and improperly delayed ; that he believed that service of the i writ and statement of claim had not been made upon either of the defendants, though the writ was sealed on 14th April, 1597, three days before the expiry of the six months " limited by the Horowhenua Block Act; that he believed that the title of each of the defendants had been interfered with, and was being seriously prejudiced by the Act until the final determination of the action, and the defendants desired to proceed thereon without delay. The affidavit filed by Mr. Stafford was to the effect that the Appellate Court sat at Levin in February, 1897, and proceeded to 'adjudicate upon an application of defendant, Meiha Keepa, and still was sitting for the 1 purpose {inter alia) of determing whether the defendant Meiha Keepa was a trustee of the beneficial owner of subdivision 14 ; that proceedings were still pending; that the Appellate Court had announced that before it will give its decision upon such applications, it would submit certain questions of law for the decision of the Supreme Court; that the Appellate Court declines to give its decision upon the question as to whether Meiha Keepa was a trustee or not of subdivision 14 until such questions of law were decided by the Supreme Court ; that it was necessary that a decision should be given by the Appellate Court before further proceedings were taken in this action ; that the Public Trustee, pending the decision of the Appellate Court, had instituted this action in order that the right of action con- [ ferred upon him by the Act should not be lost ; that the plaintiffs had not served the writ and statement of claim upon the defendants because the plaintiffs were advised that further proceedings in this action should await the decision of the Appellate Court; that the Public Trustee was advised that the joinder of Hunia was proper and advisable, and that such joinder would not cause any improper delay ; and that the plaintiffs, though appearing, did not intend to waive any objection they might be entitled to take to the right of the defendants to take these proceedings before service of the writ of summons, ic. The position, said Sir R. Stout, was that the Horowhenua Block Act declared that all dealings in certain divisions of the block, including block 14, were prohibited, pending decisions under the Act. It was a statutory duty of the Public Trustee to institute proceedings within six months of the passing of the Act. The Public Trustee filed a statement of claim three days before j the expiry of that term, but had taken no j further proceedings. The' statement was ! not, however, served on the defendant. He contended, nevertheless, that proceedings had been instituted, and that he could appear without waiting for service. By the defendants appearing they admitted the jurisdiction of the Court, and the plaintiffs could i proceeded in their action. The title of his I clients was hung up until judgment had ! been given in the statutory action. Hunia had no business to be joined in the action at all, and Sir Robert did not know how Hunia got there. The Public Trustee had no power under the Act to join Hunia with him in the action, as if Hunia had any private action he could proceed apart from this statutory action. Mr. Bell contended that as long as the name of Hunia was joined as one of the plaintiffs the action was not the statutory action. The Public Trustee had chosen to add a man who was unauthorised by statute to be there, with the result of embarrassment to Sir Walter Buller. He said that the statutory action had been granted to Sir Walter as a means for him to recover his title. Counsel pointed out the difficulties which might arise if the mixed public and private action was gone on with. It was open to grave argument whether this action was the statutory action or not. Mr. Stafford said that the Public Trustee had been waiting for the decision of the Appellate Court, specially set up by the Legislature. If the decision of that Court was that Major' Kemp was a Trustee, it would have cleared the way. The decision of the Appellate Court, he, mentioned, had nearly been completed, and when certain questions which had been framed for the Supreme Court had been answered it would probably end the matter one way or another. That was the only reason for not pushing on the proceedings. With reference to the joinder of Hunia to tbe action the legislature did not prevent the Public Trustee from joining any other person to tbe action. In addition to the action being to do justice to Sir Walter Buller, it was also designed to do justice to other persons. He claimed that no rule had been transgressed by the Public Trustee in joining Hunia, and that the defendants could not force on the proceedings at the present time. ~Mr. Baldwin contended that the defendants had no right to appear until the writ of summons had bcon served on them. Until the Appellate Court had decided, there were no dealings, except a specific one, which had been cancelled in this matter, though dealings with them had been suspended. That was the reason why the proper thing for the Public Trustee to do was to wait till the Appellate Court had given its decision. It was quite possible that if the Appellate Court found that Major Kemp was a beneficial owner the Public Trustee might decide not to incur the expense of continuing this action, but allow judgment to go for the defendants and validate the dealings. If the case was forced on before the delivery of the decision of the Appellate Court, a very long and expensive action would be commenced. At 1.15 p.m. the Court adjourned for luncheon. On the Court resuming Mr. Baldwin continued his argument, and pointed out that if Mr. Bell's contention was correct no action as required by the statute had been taken within the six months allowed. Anyone of the cestuis qne trustenl had a right to bring an independent action, and therefore, he contended, anyone could join with the Public Trustee in an action arising out of the same circumstances. Counsel having replied, His Honour decided that i£ the plan

did not serve the statement of claim upon the defendants within a fortnight, defendants might filo a statement of their defence and the action be proceeded with ; but ho thought the name of Wareua Hunia should be joined with the plaintiffs for the present, as his Honour did not wish to decide that question at this stage.