DUNEDIN DISTRICT COURT.

Otago Daily Times, Issue 4406, 3 April 1876, Page 3

DUNEDIN DISTRICT COURT.

Saturday, Ist Apbil. (Before His Hononr Judge Bathgate.) RAILWAY COMPENSATION.

' Thomas Calcutt v. William Hepburn.—His Honour said: In this case of Mr Hepburn's the Court award the compensation.to-be:paid by the Government to the claiman iat LG2S. In regard to the costs, in reading section 34 of the Immigration and Public iWorks Act Amendment .Act,. my impression was that, as the, Court has awarded a greater sumthan the amount tendered/ the claimant would be en-, titled to costs. I read the whole of the latter part of the 34th section as referring only to one case—that is the case where the applicant does not receive a greater amount than what had been previously tendered. In thst case he got no costs, and then, in addition to that, if the sum awarded was leas by one-sixth of the amount claimed, he should pay the costs of the Government also. But I read these two points together as solely applicable to the one circum stance where the claimant had received a sum equal to or less than the.amouuttendered. And in meeting it that way, I think I was so far borne out by the ordinary practice of Courts of law and by equity. "If the claimant, did not get the sum tendered equal to what the Court afterwards found him, entitled, he was the gainer, and the enquiry oh his part was fully justified. But this clause dots hot stand by this now. It has been altered by an Act last year, and the 7th section of the Immigration and Public Works Act, 1875, says:—" Notwithstanding anything contained in the thirty-fourth sectioa of the Immigratiou and Public Works Act Amendment Act, 1871, if the amount awarded to anjrcla-Imant shall be less than the amount claimed by one-fourth -of -the- amount-claimed by the owner of the land or the person claiming 1 compensation, then the costs of md occasioned by the inquiry shall be paid by such owner or other person." This therefore ■ means, as an I independent enactment taken out of the eon--1 junction of the 34th clause, that the fact of the I applicant receiving an amount not greater than : the amount tendered, may render him liable for costs. And if ;this be read independently, .then in s that case the costsof the inquiry must fall upon Mr Hep-i burn, as the .amount awarded: is less by one-fourth of the amount claimed. I look upon it as not altogether free from doubt, as it is not altogether equity. Whether it is equity or not^ however, I understand that the question has been fully argued. Mr Stout said the decision in the matter referred to by His Honour had not been yet given. His Honour: I think if it stood under the Act of 1871, I would have had no donbt upon the matter. I would have held that the claimant would be entitled to his costs. But this new enactment standing indetendently, and His Honour Justice Williams having ruied in the matter, I am bound to follow his opinion. Mr Haggitt: I wish to ask your Honour whether L 25 has not been added to the amount since the conclusion has been come to by the Court? His Honour: I shall not answer that ration. —Mr Haggitt: If your Honour s not answer it I shall assume that it ia so.—Mr Stout: I shall assume the other way.—His Honour: You are not supposed to assume anything.—Mr Hagjritt thought the action of the Legislature should not be assumed at aIL He had good grounds for assuming that L 25 had been added to the original amount awarded. It had come out yesterday, not from His Honour, that the amount of the avrard was LGOO And as His Honour had added L 25, the action of the Legislature witn regard to eosto had hppn set at defiance.—Mr Stout said the matter should not have leaked out. If Mr Calcutt had obtained the information and informed MrHaggitt- MrC^outt emphatically denied that he had, done so, and said that Mr Stout {should confine himself to the truth.—Mr Haggitt said he had not received the mforma. Uoji from Mr Calcutt.-Jiis Honour remarked

that Mr Calcutt had asked him the amount of the award, and he declined giving any particulars. No assessor should have given any information with regard to the amount pit) po3ed to be awarded as compensation. —Mr Stout said that Mr Calcutt should not have asked anything about the award, as it *-vas improper, and woidd have been sufficient grounds to set aside the award if the case had been before a Jury.—Mr Haggitt explained that Mr Calcutt wished to telegraph the amount to the Government, as Mr Hepburn was about to visit the Home country.—His Honour: I hold that until the award is pronounced, in Court, the assessors may alter their decision at any time. They can add to or diminish at any time before judgment. As the mouthpiece of the Court, I have stated the amount of compensation is L 625, and I hold that .the applicant is liable for the costs of the enquiry, though Ido it with doubt. And I think the Act of 1875 mil work injustice in many eases.: There may be cases where the amount claimed is exceedingly small, and because the mere award is less by one-fourth than the mere claim, the whole cost of the enquiry is thrown upon, the claimant. The whole question is whether the sum awarded is above the tender or not. If it is above the tender, I think the claimant should always get his costs.—Section M. is as follows :—i" The costs of every such enquiry shall, subject to .the provision hereinafter contained, fee in the discretion of the Judge or Magistrate, and he shall settle the amount thereof. If the amount awarded as aforesaid be riot greater than the amount offered, the owner, or person claiming compenoation, shall not be entitled to any costs of the inquiry, ar.d if the amount awarded be less by one-sixth of the amount claimed, the ownsrof the land, or person claiming compensation, shall pay to the Minister, or such person as aforesaid,,on behalf of the Governor: the cost of and occasioned by the enquiry, such costs t<s: be settled by the Judge or, Magistrate holding the enquiry." The Court adjourned till' Monday. ,