COURT OF APPEAL.

New Zealand Times, Volume XXIX, Issue 4276, 3 December 1874, Page 2

COURT OF APPEAL.

Tuesday, December I. (Before their Honors Mr. Justice Gresson, Mr. Justice Richmond, and Mr. Justice Chapman.) RECEIVER LAND REVENUE (SOUTHLAND) V. THE QTJJsttW. The Attorney-General, Mr. Macassey, and Mr. Stout for the appellant, Mr. Smith for the respondent. The facts of the case are these :—The land in Southland previous to 9th July, 1873, was fixed at 20s. an acre, hut on that date an Order in Council made by the Governor, under the provisions of the Act empowering him to do so, raised the price to £3 an acre. Bell (the respondent) and other purchasers had applied for land previous to the 9th by lodging a sealed letter, hut the personal application was* made on the 10th and the Waste Lands Board did not grant their application till the 10th, when the Receiver of Land Revenue refused to accept anything less than £3 an acre. An application was made to the Supreme Court of Dunedin to grant a mandamus to compel the Receiver to take 20s. an acre, which application was granted. Against that order the appeal was made.- The case involved a lengthened verbal criticism of the various Acts affecting the disposal of Crown lands, and we have therefore had to condense the arguments. Mr. Macassey said the first question was as to whether a mandamus could lie against the Receiver of Land Revenue. The first case decided in New Zealand was that of Tole v. the Queen (1 Court of Appeal Reports, 277) which was decided in 1869, before the passing of the Crown Redress Act of 1871. In that case the Court intimated that a mandamus would lie against the Commissioner of Waste Lauds, and the other cases hearing on the question were Archer v. Brittan, 2 Court of Appeal Reports, 294; Powdrel v. Sealey, Branson’s New Zealand Jurist, 177 ; and Russell v. Sealey, decided only last week. But none of those cases really decided the point in this case, as to whether a mandamus would lie against the receiver of Land Revenue. The Crown Redress Act of 1871, section 9, impliedly took away any right the subject had before to cause the issue of a mandamus to compel the Receiver to receive the purchase money for land. In Victoria the Court had power to grant specific performance against the Queen, for contracts to sell land (Allnutt v. The Queen, 2 W. and W., Eq., 135.1 Here section 9 would be rendered inoperative if the mandamus were allowed to issue, as the section said no suit for specific performance, nor action for damages, would lie against the Crown on any contract to purchase Crown lands. Mr. Justice Richmond : You say this Act is to diminish the rights of the subject, not to increase them. Mr. Macassey said it was so, assuming that the subject had the right to compel specific performance for the sale of Crown land. It was absurd to say that the Legislature would take away the rights of the subject for the specific performance of a contract for the sale of land, and yet that the subject could invoke a higher remedy, namely, that of a mandamus. Besides, there was the Waste Land Board Repeal Act of 1867, and it did not appear from this case that the prosecutor had availed himself of it. Here there was practically a dispute between the Board and the purchasers as to the price at which the laud was sold. Then if the question wore viewed as a mere question of contract, the applicant must be construed to have made himself a purchaser at the price of £3 an acre. The parties were not ad idem as to £1 per acre. Mr. Justice Chapman : My judgment was that this was not a contract, nor even a quasi contract, but that lodging the application was an acceptance of the statutory offer to sell. Mr. Justice Richmond : The question is, when does the application give a vested interest ? Mr. Macassey said it did not until the Board decided on the application, and before i the Board decided on the application it said , that the price of the land should be £3 an acre. (Various sections of the Southland Waste Land Act, 1866, were quoted.) The t judgment of the Court below proceeded on the 1 assumption that no discretion had to be exer- , oised by the Board, and if discretion had to be exercised the application was not' complete ( before the price was raised. The 12th section 1

provided for an application book, but there was no provision made there for lodging a written application. As to the issue of the mandamus, see the cases Fergusson v. Xiundul, 9 Cl. and Fin. 251, and Rex v. the Birmingham Canal Company, 2 W., 81. 70S. Mr. Stout said there was a preliminary point, namely, that the prosecutor ought to have sworn an affidavit. He referred to Tappingon Mandamus and Tomlin’s La w Dictionary. Mr. Justice Gresson said the Court were of opinion that this was in the nature of a preliminary objection, and could not now be taken. Mr Stout : Another point was that the mandamus could not be granted except it was effectual for its object. In addition to the cases cited by Mr. Macassey on that point, see the cases Rex v. Murray, 1 Hudson and Brook, 127, cited in Brunker’s Digest, 1402. Then as to the designation of the writ, see Tapping, 299, and as to the mandamus going against servants of the Crown, see Tapping, 113, 115, and 265, and cases there cited. The main point was whether the application lodged in the sealed letter of applicant was an application. He contended that the Act did not require any application in writing, and that the Waste Land Board had no power to require applicants to lodge applications in writing, and also that the power under section 11 of the Act, referring to the making of regulations, did not give them that power. Therefore the application was an application before the Board duly met, and was not the application in writing. If that view were correct, no interest could vest in the applicant until the application was made or laid before the Board. The distinction between the Land Act of Otago and that of Southland was most marked. In the former case, where there was an application in writing, the applicant did not require to appear personally, but in the other case the applicant must appear personally. Then there was this point—that though it was a statutory offer to sell, yet that the statute was altered before the complete acceptance of the statutory offer. (Rutledge v. Grant, 4, Bing 03.) At this stage of the argument the Court adjourned.

Wednesday, December 2. Mr. Stout, in continuation of his argument, mentioned the 13th section of the Waste Lands Act of 7 865, and the case of the Mayor of Melbourne v. the Queen, 2 Australian Jurist, 126. Mr. Smith said the grounds of the argument for the appellant were ranged under two heads, first, as to the jurisdiction, and second, assuming the Court to have jurisdiction, was this a case in which it should be exercised ? There were three points under the first head, namely, (a) had the Court power to control the Receiver by mandamus ? (b) has the Crown Redress A.ct taken away that powers ? (c) is there any other remedy which would prevent the exercise of powers? As to the first point, Mr. Smith relied on Tole v. Regina, cited by Mr. Macassey. Here the duties of the Receiver were created by statute, and he was not an immediate servant of the Crown. [As to the second and third points the Court intimated that it was unnecessary to argue those points as they agreed with Mri Smith.] Taking the second head as to the merits, the learned counsel argued first, that it was to be inferred from the 12th section of the Act that the application should be in writing, else what was the meaning of the words “ application will be dismissed ?” Mr. Justice Richmond : May not the other side contend that it was an application in gross. Mr Smith said there should be some written application. All the necessary particulars must be given to the Board, who had power to make regulations under section 11 for all routine business. Mr. Stout said there was no allegation in the affidavits that any regulations were made. Mr, Smith said it was true the affidavits said that it was ordinarily the practice of the Board, but still that presumed the regulations had been made. Mr. Justice Richmond : Would the Board be justified in refusing oral applications. Mr. Smith said that unless the land had been described with reasonable certainty in writing he should contend that the Board could not have taken notice of the application. The Board, however, had power to make all regulations in regard to routine business, and these regulations required the application to be in writing. Mr. Justice Richmond referred to "Vivian v. Quick (1 Court of Appeal Reports, 342) as to the power to make District Court rules. Mr. Smith said that section 12 implied writing even if' there were no regulations. Mr. Justice Gresson : The words in the 12th section are “desiring to make application.” Mr. Smith said that only showed the desire of the applicant’s mind before it was put into written form, section 34 spoke of “ and appearing in an' application.” This obviously could refer only to something in writing. Mr. Justice Richmond : You say that if it had been oral it ought to have been “on” instead of “in.” Mr, Smith said section 34 spoke -also about land being selected. Mr. Justice Chapman ; “Open for sale” are the words used in section 26 of the Act, whilst “selected” is used in the Otago Act. Mr. Smith said the word u selected ” was used in section 34 of this Act too. Then in reply to the point that the Board had the discretion to exercise, he referred to Webster v. the Southland Waste Lands Board, Branson’s New Zealand Jurist, page 38. The discretion of the Board is limited. Mr. Justice Richmond: Still it is a discretion that cannot be exercised until the Board hears the application. Mr. Smith said the right to the land is vested in the applicant subject to it being divested by the Board saying it comes within some of the exceptions of the Act. As to the five applications mentioned in the order, the Court had power to vary the order, and to declare that Bell was entitled to receive these also. As to the interpretation of time, see Brown v. Johnson, 2 Modern Reports, 146 ; Williams v. Purchas, 12 Adolphus and Ellis 655, and Young v. Higgins, 6 M. and W. 649. Then as to the manner in which the writ should be directed, see Tapping on Mandamus, 317 ; Rex. v. the University of Cambridge, Burrow’s Reports, 1647; and Rex. v. the Mayor of Cambridge, Burrow’s Reports, 2011 ; also, Rex. v. the Ouse Bank Commissioners, 3 A, and E, 544. Mr. Stout, in reply, contended first that there was no proof that the Waste Lauds Board had made any regulations whatever. Section 13 of the Act of 1865 mada the minute book a record of everything. The applications were recorded there, and did not require it to be in mating, Also that the word “in” in section 34, did not necessarily mean written application, as it would be the proper word to use even if it were an oral application. Then as to the five applications the Court had no power to vary the order, as the receiver of land revenue was the only appellant. Mr. Stout also commented on the various sections of the Act. The Court intimated that they would reserve their judgment, and adjourned till next day.