RIGHTS OF THE CROWN.

New Zealand Herald, Volume LXIV, Issue 19736, 8 September 1927, Page 15

RIGHTS OF THE CROWN.

SUCCESSFUL LEGAL POINT.

FORESTRY SERVICE ACTION.

IMMUNE FROM COUNTER-CLAIM

The immunity of the Crown from counter-claims in legal actions was upheld by Mr. Justice Stringer in the Supreme Court yesterday. The Government Forest Service (Mr. Paterson) was plaintiff in a claim for £750, being the cost of 250,000 seedlings supplied to New Zealand Redwood Forest, Limited, of Auckland, (Mr. Northcroft). I'he company counter-claimed for £llsO damages on the ground that the contract was for 500,000 seedlings, and that it had not been fulfilled. Mr Paterson said the defence was based upon a counter-claim, but objection was taken to this on the ground that no such course was legal under the Crown Suits Act. Every endeavour had been made to settle the case, but the unreasonable attitude adopted by the defendant company and the special circumstances of the 4 case had resulted in the department deciding to stand strictly on its rights. His Honor: lam not sure the Crown in New Zealand is not in a different position from the Crown at Home. In New Zealand the Crown enters into all sorts of business transactions and carries out all sorts of trades and occupations. Delivery oi Seedlings. Mr. Paterson contended the offer of settlement made by the department was .more than the .defendant company could expect to obtain by litigation. The Crown in England also undertook business transactions, so that it was reasonable to suppose the same legal rights enjoyed there could be expected to apply in New Zealand. The objection to the counterclaim had not been raised on purely technical grounds.

Mr. Northcroft said the action had been pending for some time. It arose out of a contract made in August, 1925, when the Government Forest Service agreed to deliver to the defendant company during the 1926 planting season 500,000 redwood seedlings from the Government nurseries at Rotorua. Up to that time very little redwood had been planted by the department, but on the contract being completed preparations were made to fulfil the order. However, only 250,000 seedlings had been delivered by August, 1926. In the meantime, certain differences arose between the parties, and were reflected in acrimonious correspondence. Procedure of Defence. The company had undertaken extensive advertising in the expectation of receiving the full order, and advances were also made to bond-holders. The department, had been requested on numerous occasions to fulfil the agreement by supplying the balance of the seedlings. The counter-claim was more in the nature of a statement of defence, the department's claim not being disputed. " I regret to say the objection to the counter-claim raised by Mr. Paterson is fatal," said His Honor, after the case had been adjourned for an hour in order to enable him to consult legal authorities. " It would have been more convenient to have disposed of the whole matter, but the Crown is entitled to state the objection, and I am afraid it must prevail. The theory is that it is beneath the dignity of the Crown to be treated as an ordinary litigant. The Crown Suits Act states that a defendant' must file a petition asking that right may be done." His Honor added that his decision did not interfere with the rights of defendants to proceed with the case, but the defence would have to be initiated in the manner stated, and no other. Judgment would be given for plaintiff for the amount claimed, with costs.