OTAGO SUPREME COURT.—IN BANCO.

New Zealand Times, Volume XXIX, Issue 4233, 14 October 1874, Page 3

OTAGO SUPREME COURT.—IN BANCO.

■Wednesday, September 30. (Before His Honor Mr. Justice Chapman.) lIANDAVTS TO THE GOVERNOR OE N'EW ZEALAND. Mr. Burton applied for a rule itt-il calling upon His Excellency Sir Janies Eergusson to show cause whv a mandamus should not issue, requiring him to give his consent to a petition of right 1 under the Act for the enforcing of claims against the Crown in New Zealand. He submitted that His Excellency the Governor had not the discretion which the Crown had in England. Part of the claim of the subject in the present case was admitted; but His Excellency declined to meet that portion of the claim, except upon a condition which the subject was advised he was not bound to perform. The remaining portion of the claim was disputed by the Governor. The Act for the enforcement of claims against the Crown in New Zealand was the Crown Reserves Act of 1871. The corresponding English Statute was the 23 and 21 Vic., chap. 21. The necessity for tlie consent of the Governor under the New Zealand statute was simply the same as had always existed before the passing of the statute. The Crown had to give its consent, and no petition of right could he had without that consent. The statute did not alter the previous law, which was that the subject had the right to prosecute a claim as a matter of right, provided lie had a bona fide claim. °His Honor ; The words of the Act imply the possession of the same discretion by the Governor as the Crown has at Home ; which discretion lie would of course exercise with the advice of the Attorney-General. Mr. Barton submitted that the only discretion the Governor had was either to pay or fight. The subject could not be deprived of his right to payment or to have his claim contested. His Honor : You might say the same under the English Act. Mr. Barton said he found the question disputed even under the English Act —Ur win y. Sir George Grey, Foster v. Eiidayson. His client, Dr. O'Douoghue, wished to make a claim of £IOO or £SOO against the Government, and to bring it before a jury. He submitted he had a right to do that, and that the only right the Government had—and it was a condition precedent—was that before he made a claim he must present a petition for His Excellency's consent, the Government then having an opportunity of saying whether they would pay or fight. He submitted there was nothing under the statute to alter the law, as it existed previously, and there being an express and strong departure from the language used in England, the Court ought to hold that the Governor must give his consent. His Honor : I do not think there is any foundation for the rule. I think the words “ with the consent of the Governor and not ■without” implies discretion, and that the statute has no intention of imposing a statutory duty upon the Governor. The rule will be refused, but you can take the opinion of the Court of Appeal if you like. Mr. Barton would be glad to have leave reserved.