PREFERENCE AT BALLOT

New Zealand Times, Volume XXX, Issue 6489, 8 April 1908, Page 7

PREFERENCE AT BALLOT

THE OTEKAIKE SETTLEMENT

POWERS OF A LAND BOARD

A TOST CASE,

Considorahlo interest is being Uken in tlin Otcli.iikf .<i>ttk>mcnt oasis argnjmnit, in which was nomnicneud in the Appeal Court vo-ar-rilay, bofnro their Honors Justices Williams, Douniston, Frlwarils, Cooper, an') Chapman. The ■plaintiffs arc William Wilkie Mitchell ami Hugh Campbell Wilkie MuKollar, and the defendants are the members or the Otago Land Board. .Mr Husking, K.C., with him Mr White (Dunedin), appeared for I ho plaintiffs, and the Hon. Dr. Eindlap, k.C. (Atlorney-Genernl), with him Mr Solomon, K.C., and Mr Richmond for the defendant Board.

THE FIRST PLAINTIFF’S CASE The firat plaintiff named in this ease is William Wilkie .Mitchell, late el “The Flairs” Station, Southland, a ntation manager by railing, but now unemployed. Certain land now known ns the Otekaikn Settlement was recently acquired by the Crown from Robert Campbell .and Sons, Limited, ami an allotment of portion of the laud was designated sec 31a, run 28c, being an area of pastoral and low-lying land considered noeessaiv for the proper working of the plate. Plaintiff had been employed for upwards of nvc years by Campbell and Sons, and ty the acquisition of the settlement no was deprived of bis employment, anil was in all respects » person untitled within the moaning of section 80 of tnc Land Laws Amendment Act, IJUi, to tiio rr.int ef a renewable lease ol an allotment of the settlement without orn petition. On December sth, 199/, plaintiff applied at t-Ko Lauds Office, Dunedin, for tho grant to him of the renewable lease of section 31a and run 28c, without competition, on the ground that ho nafl a person entitled to such a grant. Xhaintiff state? that ho traly aw* rod the questions sot forth in the application form, and was, as a fact, legally competent to make tho application. He made tho statutory decla r ration and paid the Receiver £lsl 18s 7d, hy way of deposit on account of his application, and this sum included the foe of one guinea for the lease and registration. In all other respects ho complied with the conditions required to be performed hy un applicant lor Grown lands. On tho same day ho attended o meeting of tho board, which trade inquiries ns to the merits of Ills and as to h\d means, and satisfied itself, and decided that ho was n person qualified to make the application. Thr;y granted his application subject to the approval of the Minister of Lands, and this decision of the Board was recorded in tho minutes of its proceedings, and tho Minister ol Lands approved tho application am grant.

APPLICATION APPROVED. Ou January 17, 1908, plaintiff was notified by the Commissioner of Crown Lands that Ids application had been approved, Shonly after, February 6th, 1908, the plaintiff received a notice from the Commissioner of Crown Lands informing lum that certain dc'ubls had arisen as to tho correctness of the statements he had made in respect to his application, and as tho legality of .lie grant to him had been called tho Board had decided to hold a re-hearing of tho application with a view to tho further investigation of the facts. Ho was requested to attend a mooting of the Board on February 12th, and he with others was examined on oath by the Board. Before he was called on for examination his counsel protested against tho jurisdiction of the Board, and claimed that the grant that had been made could not bo recalled. In making this protest he stated that Messrs ■ Mitchell and MoKollar would nevertheless afford the amplest disclosure upon all points required as willing witnesses, but reserved ail rights they had, and Were not to be considered as submitting to a rehearing of their applications. The Beard passed tho following resolution.—‘ After hearing the evidence of Messrs McKellar and Mitchell ;tho applicants), also Mr Campbell \tho managing director of Robert Campbell and Sens, Limited), and Mr James Roberts (of Messrs Murray, Roberts, and Co agents, etc., for tho company), the Beard is of opinion that such evidence substantiates the statement made by the applicants ou December sth leal, and resolves that tho Hon. the Minis tor of lands be informed that it cannot alter tho recommendation previously made by it in favour of Messrs MoEtllnr end Mitchell.” On February 26th, 1908, plaintiff’s solicitors telegraphed to tho Minister; “The Otekaike stock sale takes place March 3rd. It is rf great moment fo McKellar and Mitchell to buy stock. We respectfully suggest fairness of jemr immediately announcing if )t is intended to challenge their fight to leases. With great deference rm have advised them light cannot bo withdrawn, ,but this hardly warrants them buying stock, as they may be delayed in getting possession.” The Minister replied that be hoped to reach Wellington m the Saturday, when the Board’s recommendation route kaiko would be considered. PREFERENCE NOT GRANTED. On March 3rd the -Minister telegraphed : “Re Otekaike. ft is not intended to approve of the action of too Land Board in granting proforto your clients." On March sth plaintiffs solicitor got a letter Prom too Oommisioncr of Crown Lands, Stating that ho had received a communication from the Under-Secretary of Lands advising him that after the, most careful consideration tho Minister declined to approve of tho applications ra question. The intimations sent to tho applicants on January 17th were therefore withdrawn. THE MINISTER'S POWER.

Thfl applicants solicitor replied that ■on their behalf he declined to recognise tho right of the Minister of Lands or the Board to act in tho manner assumed and warned tho Board against dealing with the allotments granted to the applicants until ho saw them, as it might be that they would instruct him to take steps to lest tho position. " On March 7th, 1908, it was advertised that section 81a and run 280, with other portions of tho Otekaiko settlement, would be open for sokctrrTn on renewable lease

on April Bth, nt 4 p.m, and that imiiu’diaf*i possession would be given j 1 after the sale j The plaintiff says that tho intended disposal by the Crown of tho sec- ) lion and in the manner so advertised would bo in derogation of bis rights acquired by this giant made To him of tho renewable lease of section 31a and run 26c, and he feared that unless the Board was restrained by the Supremo Court the section and run would b*» disposed of oy tho Board on behalf of tho Crown. j INJUNCTION ASKED FOR. ! Plaintiff therefore prayed judgment , as follows- | (a) That a writ of injunction bo issued out of this honorable Court restraining the said Board, and tho members thereof, and tho ! Commissioner of Grown Lands from disposing of the said soc tion 31a and said run 28c by way of renewable lease thereof, or in prejudice or derogation of hie right title and interest by virtue ( of the premises in and to the I .said section and run. ! (h; That a writ of mandamus do issue out of this honorable Court coni- , manding the said Board to cause 1,0 hi* executed and issued and the Commissioner of Crown Lands at Dunedin to execute and issue a renewable lease of tho said sec- . tion and run in pursuance of the grant of the plaintiffs said application, therefore, the plaintiff 1 hereby offering to execute' such lease on his part when tho same is made available or tendered to j him for that purpose. | THE SECOND PLAINTIFF Tho second plaintiff named in the case, Hugh Campbell Wilkie McKol- ’ lar, is also a station manager. With tho exception that his application to tho Land Board was for a grant to him of a renewable lease section 30a ami lain 28b of the Otekaike settle- ! mont the circumstances of this and of the plaintiff Mitchell’s claim are identical. Therefore both cases were j hoard together, and the defence in each case is tho same, | Tho area of land applied for by ' Mitchell is 2SG7 acre*, and that for which McKollar is an applicant 3913 , acres. j

THE STATEMENT OF DEFENCE. I Defendants in their statement of ! defence denied that tho land in ques- \ tion was necessary for the proper ; working of tho pastoral land. They ' admitted that plaintiff had been employed by Robert Campbell and Sous for fivo years and upwards, immediately preceding the acquisition of the Otekaike Settlement; but they said he was not employed on tho Otekaike settlement, and they denied that ho was, by "such acquisition, deprived of his employment with Robert Camp* bell and Sons, or that he was in any respect a person entitled or qualified within tho meaning of section 80 of tho said Land Laws Amendment Act, 1907, to receive a grant of a renewable lease of an allotment of the Otekaike j settlement without competition.

NOT ENTITLED. Defendants admitted that .plaintiff had made application for a renewal lease of the section and run without comnotition, but denied that ho was a person entitled to such a grant. They admitted that plaintiff truly answered the questions set forth in tho application form, but denied that he ivas legally competent or qualified to make the said application. They admitted that tho plaintiff attended a meeting of tho Board on December sth, 1807, at which the Board made inquiry as to tho plaintiff being a person to whom the Board might grant a renewable lease under section 80,' and tho Board decided to recommend the Minister to approve tho plaintiff’s application; but the defendants denied that tho Board in any way granted tho plaintiff’s application, and said that without the express approval of tho Minister tho Board had no power to do so, and the recommendation of the Board was as it appeared in their minutes, “granted subject to the approval of tho Minister.”

It was admitted that on January 17th. 1908. a letter was sent to plaintiff by the Commissioner for Crown Lands intimating that the plaintiff’s application had been approved by the Minister, but defendants sdid no actual grant had followed upon that intimation, or had yet been made. Do- 1 fondants also said that the approval given by tho Minister was subsequently cancelled and withdrawn, and it was denied that any grant within the meaning of section 80 was ever, made as alleged by the plaintiff. | COUNSEL’S OPENING. I

Mr Hoaking, in opening tho case for plaintiffs, siafd the matters which would be brought before tho Court depended upon the interpretation placed upon clause SO of the Land Laws Amendment Act. Instead 1 of the system of lease-in-perpetuity which prevailed under the former Act a system of renewable leases was introduced by which persons who desired to obtain sections could under certain conditions do so without having to go to a ballot. The two plaintiffs had been in the employment of Robert Campbell and Son when Otekaike was acquired by tho Government, and haid been in their employment for several years. Plaintiffs admitted that they had' not been employed on Otekaiko estate for that period ; but they submitted that they were deprived of their employment by reason of the acquisition of tho estate by tbe Govern incur. It, was admitted that Mitchell was never on Otekaike, but ho was eleven years on another estate called “Tho Plains.” But they wore deprived of their employment by the acquisition of the land by tho Government. The plaintiffs put in applications to the Waste Lands Board, and those applications were approved on December sth, 1907. QUALIFICATIONS OF THE APPLICANTS. Dr Findlay said’ if they were pre-

pared to limit the question to the qualification of these men as applicants iicder section 80 he was prepared to admit everything else.

Air Husking; I cam© here to show that tliis was a question of fact, and that wo made our . indications to the Waste Lands Board in terms of tho Act, and these applications were granted subject to the Minister’s approval.

Air Justice Williams: But is not the main question—if these men were deprived of their employment, one directly and the other indirectly—whether they are within section feO or not? And that is a question of law. Surely tho finding of tho Waste Lands Board on that point is not conclusive! How can the Waste Lands Board give land to' persons who are not entitled to receive it.

Mr Hosking: But if tho Waste Lands Board, having certain facts before it which tend both ways—one showing that tho men lost their employment and the other that they didn’t, then it becomes a question for tho jury. Mr Justice Williams: But one man did lose his employment, and X suppose tho Attorney-General will say, “ Wo admit, .so fax as Mitchell is concerned, that ho was employed on the estate, and was deprived of his employment by its acquisition, but ho has not been upon the estate for five years.”

FACTS AND INFERENCES. Tho Attorney-General: Wo don’t contest tho facts, but we contest the inferences.

Mr ilosking: Tho Crown Land Act of 1892 expressly makes the Land Board tho arbiter in dealings with these lands.

Tho Attorney-General: We shall rely upon the fact that the taking of Hie estate did not deprive him of his employment. It is purely a question of law; there is no contention as to tho facts-

Mr Justice "Williams: Then if the Court decides that the applicants were within section 80 you will waive all tho rest.

The Attorney-General: Yes. Mr Hosking said the Board’s, decision and the Minister’s approval, once given, precluded any further discussion, and lie would rely upon the facts where they warranted that decision by the Minister. He would guard himself against giving away those things which followed upon the approval of tho Minister given upon a decision by the Waste Lands Board upon the evidence before them. The Board had gone into that, and come to the conclusion that these men had lost thoir employment by the acquisition of the estate, and what was now sought to be done was to make out of a question of fact a question of law. The "Waste Lands Board was an independent body like the Education Board or tho Charitable Aid Board, which were independent of the Government and of the Minister, and were set up as between the subject and the Grown. Mr Justice, Denniston: 'Then are wo here merely to enforce the findings of the Waste Lands Board? Mr Hosking: If they are findings of foci.

Mr Justice Denniston: Then wo have nothing to do but give a certicato of registration? The Attorney-General said that to avoid any misapprehension ho wished to explain that he had said he was content to have the case argued on the questions under section 80; but if Mr Hosking succeeded on the question whether the Court could inquire into the applicants’ qualifications, then lie (tho Attorney-General) would rely upon his technicalities.

POTT~‘"*S OF A LAND BOARD. Mr ii. /.vjving said h© had been drawn into tho discussion by tho statement that the question was one of law and not of fact. But section. 43, subsections 7 and 8, plainly stated that “every matter, question, doubt or difference relating or incident to the sale, letting, disposal, and occupation of Crown lands, or to the interpretation or meaning of any enactment relating to or in connection with Crown lands or to any matter or thing done under any such enactment, shall b© heard and determined by the Board. The decision of the Board on all matters to bo by it heard and determined shall, snbif ct tv» the provisions of .his Act, be final and conclusive.” He, therefore, submitted that the Land Board was a perfectly independent tribunal for the purpose of determining doubts with regard to any enactment relating to tho Crown lands; and, therefore, if tho Minister accepted and acted upon tho finding the Land Board he was bound by it, and could not withdraw from it. He (Mr Hoskingl was propared to face all the technical objections that might be raised, and he thought ho could meet them, but ho would like to consider whether ho should go into the question and rely upon the evidence and not upon the preclusion which ho considered existed. Their Honors decided to adjourn at 12.30 o’clock until 2 p.m. to give Mir BDosking an opportunity of considering tho position. “COLOURS NAILED TO THE MAST.”

On resuming, Mr Hosking said that after seriously considering the matter he had decided if he must go down to go down with all his guns on board. (Laughter.) He was reluctant to give up any chance there might be lurking in the points he had for submission to the Court. He had intended to argue the question as to whether the evidence did or did not justify tho grant. While the Crown might be very desirous of obtaining sumo chance instruction on the construction of section 80, he, of course, was only interested in the case before the Court, and that might result in tho Crown throwing overboard all technical objections. He was nailing his colours to tho mast and perhaps tho Crown might come in with them at half mast. (Laughter.) He presumed the

( technical points put forward by tho Crown would be; (1) ‘Whether tho Board granted the applications for the renewal of the lease?”—He submitted that the Board did grant the applications. (2) hether the approval of the Minister admitted to have been given was such as required by section 80?”—Ho submitted that the Minister’s approval might be given before or aftor tho grant by the Board (3) c *Whether the Minister’s approval of the grant by the Board having been given that approval could be withdrawn He submitted that it could not unless misrepresentation or fraud wore present. (4) “Whether employment the-es-tate acquired was requisite?” Ho submitted that it- was not requisite that the employment should be on the estate acquired. • (5) Whether tho applicants wore deprived of their employment ly tho acquisition of the estate?” Tho Attorney-General; There will ’ he a second ground that ‘The employ- ■ meufc must Ijo necessarily connected ’ with the estate whether upon the estate or not?” 1 Mr Hosking said that m answer * ho would submit that any such case was entirely guarded by tho double expression o T" approval, first by the Board and then by tho Minister. He farther submitted that Land Board had accrued the question of fact involved, and that decision could ' not now be questioned, except from misrepresentation jr other fraud or some power to be found in the Acts. , Approval of tho application in any form was sufficient. They asked that ' tho Commissioner of Crown Lands : shall execute the lease; the assent of , the Board to tho lease was not ' : tho execution of the lease itself. . ISSUE OF A LEASE.

Mr Justice Chapman: Has the Land Board as a Board anything further to do with the matter, or can a lease issue under the Commissioner’s signature? Mi* Hosking: It issues under the Commissioner’s signature by compulsion.

Mr Justice Chapman; The Board noed not see the papers again? Mr Hosking: Except that the Board shall issue the lease and licenses. Mr Justice Williams; There is a little more. Section S 3 says that every lease shall contain such conditions as the Board shall prescribe. Mr Hosking: We haven't any say as to what goes in, except by virtue of the regulations prescribed. Mr Justice Williams to I>r Findlay: Do you contest this: If the Land Board has properly approved of the granting of the application, is the right of the applicant absolute? Hon Dr Findlay: If the approval of the Minister had been obtained before the resolution of the Board granting the lease to the applicants was passed the right of the applicant would Have been absolute. I am dealing now only with the grant. Mr Justice Cooper: You say approval of the Minister must be precedent or contemporaneous? The -Attornoy-Genex'al: Yes. Mr Hosking: Then the question comes as to whether the approval of the Minister should proceed or follow the action of the Board that has assented to the application. I submit it may be either.' Mr Justice Denniston; Does a resolution do moro than confirm the fact that it was passed? Mr Hosking: It indicates adhesion of the mind of the Board to its action.

Mr Justice Denniston; You carry a resolution. Supposing in the interval th© whole parties change their mind. # Mr Justice Cooper: Are they not simply confirming the minutes, that the previous proceedings wore correct? Mr Hosking; There is, first, rightly or wrongly, the conditional grant by the Board. You want to determine ff the condition was fulfilled. lam submitting it was fulfilled the moment Ihe Minister gave his approval and the conditional grant became absolute. When the Board confirmed these minutes there was a cental adhesion to their previous action. Mr Justice Denniston: The confirming of the minutes would only have to do with the then mind of the nar+y* it is a mere record of the minutes. *

After further argument the Court rose until 10.30 a.m. next day.