PREFERENCE AT BALLOT

New Zealand Times, Volume XXX, Issue 6490, 9 April 1908, Page 7

PREFERENCE AT BALLOT

THE OTEKAIKE ESTATE RIGHTS OF STATION EMPLOYEES. INTERPRETATION OF LAND LAWS. ARGUMENT IN APPEAL COURT. The Court of Appeal, their Honors Justices Williams, Ucnuiston, Edwards, Cooper, and Chapman, resumed the hearing of the Olekaiko appeal case yesterday. Air Hosking, K.C., with him Mr White, appeared for the plaintiffs, -Mitchell and McKeilar. Tho Hon. Dr Findlay, K.C. (Attorney-General), with him Mr Solomon, li.C., and Air Richmond, rep res e tiled tlio defendants, Otago Land Board.

APPROVAL AND GRANT. Air Hosiemg, continuing his argument, said the question was whether tho approval of the Alinister should follow tho grant by tho Board, and whether a grant made subject to tVE approval of the Minister was a grant within tbq meaning of the section ? It whs quits possible that in connection with tho context the approval by tho Alinister of any- act might precede that act. There was nothing in tho context to show that the approval was to ba before or after, or that any- troublesome or absurd consequences would follow bv adopting tho view that the approval might bo subsequent to tho grant. Tho whole point of the section was simply to enable a person to take up land without competition. Tlio object of the Act was to get an individual p'erson on the allotment the size of which was prescribed by tho Act, and as Ion? as that person could competently car y on the work of the farm it made no difference who got it. The section said ’’The Board may. grant an allotment thereof without competition to •any , person.” All those provisions of the Land Act and tho rights that followed had always been dealt with by the Courts and by tho Privy Council as., contracts. It might be considered that it was an offer ms do to and] accepted by the Board.. AN example;

Tako the case of a power of flitter- i ncy given to an agent authorising him to grant a lease of certain land with the approval of the donor. The ageut would make a contract for that lease subject to the donor's approval. there be tho slightest question that the agent could not make a proper contract which could take effect until the donor had expressed his approval and that the contract came into existence when that condition was performed? Then the contractual relation would com© into operation. Xu this case it was - submifctod that the moment the condition was performed the contract became absolute. Tlio Beard didn’t prefers to grant the ' ieeses without tie approval of tho Alinister, but expressly made- its grant subject to his approval. Reverting to . the illustration of tho power of attorney,! what conceivable harm could follow if i tlio Alinister’s approval was given after the contract was made and not before, if the matter was looked ait from a business point of view, and this was a land-selling business on the part of the Government ? Tlio Board ] received an application which was aji elaborate form, and tho applicant was examined by the Board.' What wore they to do then? Simply send the papers up to the Alinister, and ask, “Do you approve of this?” That would be' absurd, and the working method of the section must bo that which tho Board had adopted, instead of formally meeting to consider a subject upon which they had made up their minds; they simply said, “We grant this application subject to the approval of the Minister,” and there could he no eletriment to the drown, because tho approval did not precede the grant, although there migh J - be some argument, in favour of the Crown. His point was that the approval of tho Alinister might follow the grant. His next point was, “ That the Minister's a.pproval, onco given, could not be withdrawn.” He submitted that the contract having been computed by the Land Board it could not subsequently be withdrawn. Air Justice Denniston; I understand the Attorney-General intends to submit tli -1 t>M« was not an approval. Dr Findlay; I don’t propose to contend that Gin ATtoister didn’t "bo hiv approval, but I do contend that the approval, having been given after the grant, had no effect. QUESTION OF EAIPLOYAIENT.

Air Hnsking, addressing the Court on tho point as to whether by reason of tho, acquisition of the estate the applicants wore deprived of their employment, maintained that the question having been decided by the Land Board it could not now he gone into. Tho Act constituted the Board a judicial tribunal, with executive administrati'n and power of interpretation of the Acts, subject only 'o tho grant of a rehearing or the right of anneal. Employment on tho estate was not cs’Fr„tisU it - ’" T 'e vp)-" no snot, words in the Art. The Minister of Lands, writing to Air AloPherson. ALP., said:— To reu-vre en;nloym”nt to have hoen ca the estate would have been faiutal. os men in these large emrlr.ymen+s arc liable to he changed.

from place to place, Ouostirj-Gfl br tb». Court ns to bin rich* -to hriro, in {lie Miristcr’s letter. 7.1 t Ho*i>g snbri.ittedtbn-t in order to construe !;:n statute, if there was any doubt about it, be could go into tbo st,a + « of • thio&s which had to be remedied. Ho d’d not propose to read tho wl-010 of the Minister’s letter, but only an anllnii itative statement, such rs an historian might write as to the state of Things which existed under the Lands for Fettlcmeot Act, and prior lo ihe Act being passed. Dr Findh-y: That was net put in as an admission -if things when the law was passed, and I submit it is i ot competent for my learned friend to use it now , If he desires to sbow What the condition of things was before the law' was passed it should be pr ived in a different way. Mr Justice Chapman; It is the Minister’s view of the law. Mr Justice Denniston: It is a statement of fact by tbo Minister, hut bow does it provo anything ? Mr Hoskins; The Court does, I submit, take judicial notice of such a thing. The deprivation of employment did not _ follow' instanter upon the acquisition of the

estate. There would have to bo an opportunity fm the i-mployer to make up his mind as to what was going t) do, and v. hen he was going to give his employees notice of discharge, and it was only upon that notice that the employment was lost. AN EmRLOYJIfETS TENURE. Mr Justice Ueimiston: What would Ittppeu if the employee was on the land ivhen it was acquired? Would not the employment cease instantly? Mr Hosking: No, not if he was employed on another station, and be would still be manager until possession was govern \Ve say the dismissal does not immediately follow upon the acquisition or the estate. iur J Hotico Vwiiiams : Xho dismissal must Ue subsequent to the acquisition ot the estate, because it is tne cause of it.

Mr Hosking: Of course that is so, and that is my contention, but the employment must continue up to the time of me acquisition, out tho deprivation of employment may not follow immediately; mere must be some reasonable sequence between the acquisition and tho dismissal. It was lor tho Hoard to determine whether me dismissal was a consequence upon the acquisition of the estate, and if tho Uuard found that the applicant was deprived of his employment, that wus a. decision of fact binding upon the Minister when once he had approved of the application. If he (Mr Hosking) was right in Ills contention that tho employment need not bo upon tho estate, and if by reason of the acquisition of this estate by. the Crown tho owner determined tnat his subordinate estates must be disposed of, and tho men employed on them dismissed, thoso facts brought tho men within the scope of the Act. Mr Justice Williams: Tho question is, would tho men have been dismissed if the estate had not been acquired? Mr Hosking: Yes, and we say that if the Board that question no tribunal can go behind that decision. It was submitted that the Land Board came to no fanciful conclusion when they found as a question of fact that the applicants had lost their employment by tho acquisition of the Olekaike estate, and _ that the Minister approved its finding, and by such annroval said there was neither misrepresentation nor fraud. Once he had given his approval he could not go hack upon it on the ground that the Board had come to a wrong conclusion, on the facts, and therefore the plaintiffs were entitled to succeed. TEE DEFEKCE.

ATTORNEY-GENERAL’S VIEW. The Attorney-General, in opening the case for tho defendant Board, said his first point was that tho Board’s decision was not final under section 48 of the Land Act of 1892. What? ever tho scope of that section might be, there was no matter her© under section 80 to be heard and determined by the Board within the meaning of section 48, and no decision of ‘ tho Board under section 80 would be a matter in respect of which any person could be aggrieved. All matters which were heard and determined by the Board under subsections 7 and 8 of section 48 might be mado matters of appeal under section 63, and matters under, that section were matters in respect of which some person could claim to bo aggrieved by the decision of-the Board on any matter. Subsections 7 and 8 of section 48 and section 53 were co-extensive in their scope. | Under section 80 the Board might apf prove certain leases; but a hundred i applications might be made and nonp 1 granted, for it was not incumbent upon the Board even to. consider any of : them. They might say that for reasons of general policy, as, for example, that the estate was too small* I they would not listen to any applicaj tions under that section as they were ■ not going to grant any preferences, but the estate would b© open -to everyone in tho usual way to tak© his i chance at the ballot. FINALITY OF DECISION.

I : Mr Justice Cooper: I quite agree' ! with you that the Board’s decision is ' final, but suppose they said they would j not look at the applications at all, 1 snrftlr n m'atidnmus could issxic? ! Mr Justice Denniston: But, .Mr Attorney. you are arguing upon general principles apart from this case alto-j j gcthor. | The Attorney-General: Yes. X say j these sections, 43 and 53, are only applicable upon some claim of right upon which th© Board is empowered to adjudicate. Wo say thero is no right in the applicant to have his application hoard, afid the Board may say “Wo t won't grant you anything at all.” I Mr Justice Edwards; Yes, but they I didn’t say so; on the contrary, they ! entered upon the inquiry and then ertchu n-ly droid'd Hu* irn +4- er.

i The Attorney-General: "We sny unless they could b© compelled to enter into the inquiry the fact that they did so in some cases does not affect the-legal view of th© matter. If there were fty-ty applications, and the Bocrd .said “Wc will hear three,” would the j other thirty-seven have a right to complain ? I can understand a Court issuing a mandamus to compel an inquiry whore ©very applicant has a right to. have his application heard; but hero, I say- no person has any right at all in this regard, for th© IV'ard is not obliged to grant any application. The land is open for selection. and, that being so, would any person a right to complain under section 53 ?

I THR BOARD’S RIGHT, j Mr Justice Cooper: Has not the ! person referred to in section 80 a right to make application, and has-not the - Board a corresponding right to deterImiiin itP

j The Attorney-General: X submit that i tho Board may decline to hear it. Mr Justice Chapman: Hasn’t he a right something like that under the j Alining Act, where the Warden sitting to hear applications has power to say that in the* public interest all appllections for this area will not bo granted in rosnect of this area; but if he doesn't say that, he must hear the a phontions?

The Attorney-General: Tcs, but thrifts not this case.

Mr Justice r hnpman: But hasn’t the applicant a right amounting to a

standing to ask that his application be lie. rd ?

The Attorney-General; No; if my first contention be correct, the Board need not hear any application at all. |lho case of a goldliohls Warden is i essentially different from this, for hero j the Board has no right to decide any- ! tiring, iho appeal is not to the discretion of the Board but to the joint discretion of the Board and the Minister. Hero, then, is the right of the public to come in under the general ballot, and a special provision is made that if the Board thinks fit to listen to applications from persons who have been five jears on the estate, they may do so; or, on the other hand, they may not, tor they can say, “This estate is small, and wo won’t discuss any preference applications; it must go to the ballot.” The mere fact that they entered .upon an inquiry and never concluded it does not affect tiro question.

Mr Justice Edwards: They entered upon an inquiry on questions thar arose, and is not that a matter of doubt or difference?

The Attorney-General: No, your Honor, that question only arises when soniQi person is aggrieved, as provided for in section S 3.

! QUESTION OP RE-HEARING. Continuing, Or Findlay said his nest point was that if there wore an application under section 48 it must be with regard to something that tho Board itself had finally determined .md concluded. Mr Justice Edwards; . When you have got to this point, and the Board says, “We admit your application is I quite in order but you haven’t been there five years and wo decide against you,” you mean to say a man would not come afterwards and say “Please | rehear this, and I will be able to show ' most conclusively that X was there six years.” ' j Dr Findlay: The Board may rehear ■ it, but can it be compelled to hear it? It is not a matter in respect of which an appeal would lie to the. Supreme Court by way of mandamus or otnprwiso.

Mr Justice Donniston: It is oscludied by reason of the nature of the I matter P j Dr Findlay: Yes.

THE BOARD’S DISCRETION. Dealing with the Land Board’s powers, the Attorney-General claimed that what was left to the discretion of the Board under section 80 was the granting of the lease with the approval of the Minister. The Board may or may not grant a lease with such approval,, but it was not left to the discretion of the Board to decide what amounted to employment or deprivation of employment under section 80. The decision as to qualification 'was not in the discretion of the Board. That was a question of law. The unlimited power of the Board only applied to Crown lands and not to lands under the Lands for Settlement Act, which were kept distinct in all the various Acts. Assuming that a valid grant of the land could be effected by resolution of the Board, it had not in this case passed a valid resolution. It had been contended that the confirmatory resolution, passed on December 10th, amounted to validation after approval of the grant made on December 6th, hut the confirmation of the minutes was no more than a certificate of their correctness. He submitted that if the section of the Act was read strictly, the resolution muse be passed with the approval existing at the time of the resolution, and, so road, they freed the case of all difficulties. Here the Minister had a statutory to fulfil—he had got to approve or otherwise of the lease recommended by the Board. On the question of qualification the plaintiff Mitchell was never employed nor resided on tho estate. He had been in the employ of the 'owner of that and other estates for a period of five years and upwards preceding the acquisition of the estate by the Crown, but he was at the time manage- of tho Plains estate; the company decided to sell the Plains and hence Mitchell lost his position. Under the original Lands for Settlement Act the owner of land compulsorily acquired had the right to rese’vo part of the estate Then it was found in practice that in acquiring these estates the manager who had boon vary many years upon an_cstnto was turned off and had to take his chance at tho ballot with tho public. It was so with Hatuma. Then came the Act of 1896 which made provision for such cases, and the Consolidation Act of 1900 further widened the scope of this provision. In each case the purpose of-this section was to protect a man who was working on the estate and whose home was there] It was never intended to so /completely widen this provision as to make it applicable to a.ny person, no matter whore employed or how employed by the owner GENERAL PREFERENCE. Argument ensued between counsel and tho Bench as, to whether a goyomnoss, or maid, -or chauffeur, or other employees of the owner of an estate should not have an equal right to preference, seeing that the sole of the estate deprived thorn of theft situations.

'Ts there any objection to their taking the whole of the estate, if suitable persons?” asked Mr Justice Edr wards. “It is cot a question of lot,, of revenue. What the law aims at is the qnost'on of settlement.” Dr Findlay: It is a question of'ptrhll! right. Why should a select few only have that right?

Mt .Tnatfce Kdwjmfoi Because they' are people who are losing by the aoqivstion.

Dr Findlay: Tea, if engaged upon the estate, and the sale of the estate necessarily resulted in Joss of occupation.

Mr Hesking: One of the applicants approved by the Minister of Lands fas a groom on the estate.

TV Findlay: \ proem may make a si]cecils fu! settler; if he is engaged on the land ho fulfils the conditions. It fas never intended that power should ha given which would probably result in no paid of an estate acquired being available for general settlement.

Mr Justice Williams: Supposing a man has two other estates, and the lois of employment can bo diroctlv tr med to the acquisition of the other? Dr Findlay: I submit that the words “in the employ of tho late owner” moan the owner of that very estate, and the emnloyment is by that owner. SECOND PLAINTIFF'S CASE. Dealing with the second plaintiffs case, McKcilar's. tho Attorney-fieneral admitted that it was stronger than Mitchell's, because he had been employed on the estate one year, hut he was not employed by the owner for five years, as provided by the Act. The employment, however, was not connected with the Otokaike estate. He submitted that neither Mitchell nor McKellar were qualified. He nehel the Court, in any event, if it could see its way to give an expression of opinion about section 80 of the Act of

1907 it weald ho of set vice to th« whole country. FURTHER ARGUMENT. Mr Solomons, following, argued that as the plaintiffs came to the Court of Appeal to claim a mandamus for an injunction the Court would carefully inquire whether they were entitled to receive thse leases or not. Unites they could show clearly and unmistakoably that the jurisdiction of tho Court of Appeal had been taken away and placed in the hands of the Land Boards they wore not so entitled. Those who sought to come to the Court from wh.ch they asked assistance would have to show most clearly that the jurisdiotionVof that Court had passed into the hands of the Land Board, for it was very doubtful indeed that the Legislature had intended to make the decision of the Land Board final apd conclusive. If it was so intended it must have been made final mid conclusive by statute. . But if section 49 was interpreted in that way this was not one of the class of cases in which the decision of the Board was final and conclusive, and the Board could not give itself a jurisdiction which it did not possess. Before tho Board ;ould deal with an application for a case the applicant would have to -dace before the Board a valid application, and it would be impossible for the Board to decide that an invalid ipplioation was valid. The Board could only deal with tho application of a man who was landless. Tho statute of 1907 provided that those persons whom the Board found to be ’ - 1 s Jiould he entitled to certain privileges under tho Act; but thf ■ ersons who wer6 entitled under -ection 80 were not the persons whom the Board were of opinion had lost their employment but those who, as a matter o’f fact, had lost their employment. The Board had no right to give a conditional grant, and it was perfectly obvious that they never intended to do so. The Court then adourned until 10.30 o’clock on the following day, when Mr Hosking will reply.