THE OTEKAIKE CASE

Otago Daily Times, Issue 14184, 9 April 1908, Page 8

THE OTEKAIKE CASE

, APPEAL COURT PROCEEDINGS. ARGUMENT BY COUNSEL. (Peb United Pf.Ess Association.) WELLINGTON, April 8. Li the Court of Appeal to-day Mr Hoiking Continued his argument in tho Otekaike case. Ho contended that tho approval of tho Minister-under section 80 of "Tho Land' Laws Amendment Act, 1907," could lie validly given cither before or after the of the leaso by tho board. Tho relationship created by that section was a contractual one, there being an offer by tho plaintiffs and an acceptanco by-the board subject to. tho condition that tho Minister should approye. That condition was fulfilled, and the contract was therefore comploto .and irrevocable, and the - court should, by granting the remedies asked for, enforce it« performance on the part of thu board. Mr further contended that tho plaintiffs 'wero deprived of their employment) by .tho acquisition of the estate by tho Government, but even if that ■was not to, the board, having once found tho fact in its favour, that finding was final and conclusive, and could not bo

: ; viewed by the Supreme Court, Sections 48, 49, 52, S3, and 99 had tho effect of constituting tho Land Board a tribunal of exclusive jurisdiction for the determination Df questions of fact coming before it, but, assuming that tho cqurt had jurisdiction to review the ovidonoe, if there was any evidence on which tho finding could have been based it could mot be disturbed by the court, Employment on the very land acquired was not essential so long as the plaintiffs wero employed by the owner of tho land. Mr Hosking contended that the acquisition of the estato took place when the contract of acquisition was entered into, and that tho plaintiff's loss of employment was a consequence of tho acquisition. .Tho board having so found, and the Minister having approved of the finding, thore was no power to reopen tho question. , .

Dr Eindlay, E.C. (Attorney-general), on behalf of .tho defendant board, contended that tho board had an absolve discretion under section 80 of tho act of 1907 as to whether it would grant any prefereneo to employees who had been deprived of their employment. It had power to refuse to iput tho section in force, and if it refused all applications under section £0 no person would bo aggrieved, and thero would bo no right of appeal to tho Supremo Court. .Mr Justice Cooper: Have not the plaintiffs a status under section 80 a right to apply and consequently a right to bo iheard?

■Dr. Findlay: Before tho land is thrown open for selection tho board has power to withdraw. tho application of section 80 .to tho, particular estate. Continuing, Dr Findlay contended that the board had no jurisdiction to decide whether the plaintiffs fulfilled tho qualifications of section 80, that being a question of law. In deciding in tho plaintiffs' favour it misinterpreted the law to givo itself jurisdiction, and its act being ultra vires w»6 in consequence a nullity. Further, no valid resolution to grant the lease had been .passed by tho board. Tho. confirming resolution of tho 'board- on the 6th February had not the approval of the Minister. Tho confirming of the Minister by the hoard was not a confirmation- of its action, but amounted only to a certificate that tho minutes wero correct. Dr Findlay further contended that /under' section 80 .of the act, of 1907 tho Minister's approval must be given beforo tho grant to validate the grant. In this case tho approval was subsequent. The case of the Land Board subsequently approving of an assignment was not parallel, for in this caso tho Minister had a statutory duty, which must bo strictly carried out. Finally Dr Findlay contended that the plaintiffs did not fulfil the qualifications proscribed by section 80. Tho plaintiff Mitchell was not manager of Otekaike Station, but of tho Plains Station, a subordinate station to Otekaiko, which was not sold to the Crowp, and although-it was stated to the board • that the Plains Station was sold in consequence of tho salo of Otekaike it was open to tho board to show that that was not the fact, and that Mitchell did not lose his employment in consequence of the acquisition of Otokaike. The intention of the section was that it should apply only to employees..on the very land acquired. . As to M'Kollar, ho was actually in tho employ of the owner when he mado his application, and thereforo had not actually lost his employment, and was not qualified ■under section 80.

Mr Solomon, K.C., followed Dr Findlay. 'He contended that the Supremo Court had ample power to review the" decision of the Land Board on questions of fact deowed under the Land for SettlementsAct, for land under that act was not in the same category as Crown lands under "The Land Act, 1892," and it was only in respect of Crown land that the decision of the , board on questions of fact was made final and conclusive. But even if that provision applied to a dcoision of tho board under \ the Land for Settlements Act, it applied only to decisions on questions of fact directly arising from their duties, and not to preliminary questions necessary to found their jurisdiction. Their decisions on such preliminary questions-were open to reyie-lv. .

At the- conclusion of Mr Solomon's address the court adjourned until 10.30 tomorrow morning, when Mr Ilosking will reply.

INTERESTING DISCUSSION. ■PaoM Our Own Cohresfoxdent.) >...... WELLINGTON, April 8. _ lhe Otekaiko cases occupied tho attention of the Appeal. Court during tho whole of to-day's sitting, and will not bo coneluded, until to-morrow. Tho legal argument at .to-day's sitting centred around what tho Legislature intended by section B0 of the act of Jast session. During the oouree of tho proceedings two interesting discussions arose. , On 6 w&s the , opinion of the Minister of Lands as to'' tho scope-and', intention of the section, an j. opinion '.-chat appears to be diametrically opposed .to what was -being urged by the i Attorney-Gcne-al. Air was proceeding to quote from a letter from Mr M'Nab in re-ply to one from Mr M'acPhcrson, M.P. He cjuotod Air M\\ab's opinion as expressed in,the letter as follows:—"Tho iaw does, not require employment- to be on the property purchased. It may be anywhere, so 'Jong as e.'.iploymcnt ceases on account of purchase. 'Tins was deliberately put into the act for this purpose. To require employment to have'/ten on the estate would have been farcical, as men in .these .large employments are liable to be changcd from, plate to place." While Mr ilosking was reading' from this letter the Attorney-general interposed, and objected to' its boing read. It was not a' statement of fact in the case, but onh; an expression of opinion. Any person connected with the Legislature hail as much right to express an opinion on the matter as- the Minister of Lands. Mr Justice flenniston agreed with the Attorney-general's contention. Mr' Keeking: " Very well, I shall adopt those;words as my own, and submit them to the court." Mr Hosking then used the words quoted from the Ifinislcr's letter as his own argument, and remarked that in having to do so he had, after all, got tho Minister's opinion in by a su'bterfuge. Mr Justice Donniston: But you have not got it iu. I Mr Hoskinft: "Well, I am- glad that my opinion has boon approved in high quarters. Mr Justice Denniston: But you have not proved it. The other point of general public interest around which some uiscussion centred was the scope and intention of section 80 of the act of last session- This is the scction giving preference of selection to employees who lose their employment because' of the acquisition of an estato under tho Land for Settlements Act. During the course of his argument the Attorney-genoral proceeded to show that the plaintiffs were not qualified under section 80 of the act of last session. Mitchell, he said, had nover been employed on, and never resided on, the Otekaike listaie. He was manager of the Plains Estate,' and itwas in consequence of tho- salo of that estate that he lost his employment, 'l'he Plains Estate was in tho market a' year jioforc tho Crown acquired Otekaike; therefore, if Otekaikc hail not been sold at all, Mitchell would have lost his employment. Tbc Attorney-general argued that if the construction of genftral words- in a section \m such as to result in an absurdity or a palpable injustice, or if tho court, from a oirvey of, the legislation of which this section 'formed-a part, saw that a wide construction of the words would defeat the plain intention of ■ tho ' Legislature, -Che court would bo' limited to carrying out that intention. The original provisions in the law protected a-,man whose work and lxms wero on the estate, but it was never intended to widen them to t-lie extent intoiiod.in the of the other side. 1i that ware so in the case of an owner --rith a large town house, his employees <-va!d monopolise tho whole of 'a laTge purchased bj tho Government, for jottioniont purposes. • Mr Justioo Chapman: I» tliaae *»y obpntkm to their talcing up an raiaie if tentr uo suitable pensons? la not tiw policy to snvaacplttto ssttb «n fcbe umtiyi

Tho Attorney-general: But not to rceervo it for a-select few. Mr Justice Edwards: Tlicy might 1)0 losing {heir employment. If in conscquenco of tho acquisition of his propi'*y the owner shut up his town house and went elsewhere, wily should the governess, for instance, not have tlie right to come in under this section? 1

The Attorney-general: Because it would be giving her rights that would prejudice tho rights of the settlers as a -whole. Mr, Justico .Edwards: It is possiblo that she might inttke a good settler. A rouseabout who had been on the station for five years would bo eligible. Mr Hosting: Ono of tho successful applicants in this ease, under section 80, was a groom.

; Tho Attorney-general: But ho was engaged on tho land. It was nover in tho contemplation of the Legislature that this very wide construction should bo given. Mr Justico Edwards: If a groom employed by tho owner of the estato is eligible, then supposing tho owner had a. motor car, .would not his chauffeur bo eligible? : Tho. Attorney-general: No doubt. A good motor car is a very excellent thing in connection with tho working of a large estate. ■

Mr Justice Edwards: Then a. milkmaid would be eligible. You would let a milkmaid como in, but |you would shut out a governess. The Attorney-general: Yes. You might as well say a family hairdresser bccaitse he had been, coming there regularly.for five years. Mr Justice Chapman: 110 would not bo an employee. Tho Attorney-general: JHo may be, your Honor, if ho is employed at so much a we*k.

Mr Justice Edwards: .Well, then, if it is necessary for the owner to keep a hairdresser on the estate, would not ho be eligible? Mr Hosking: There is tho cook,.sir. Mr Justico Edwards: Docs it not all come down: to this, that the section has been made wide in its scopo becauso the Government has a department thoro which will administer .these things in a reasonable manner?

Mr Justice iDenniston: It would tend to popularise servico-in the country, which is very much needed.—(Laughter.) _ Tho Attorney-general added that if tho soction were given so wide a meaning tho clerks- of tho firm -in London, who had never been licrc at all, would have the rig'hfc to'i apply. Mr Justico Edwards: We aro not legislating fof London. Tho matter has been left an' the hands of a. department, which has been given a general discretion, which it is 1 assumed, will be wisely exercised, and no doubt those gentlemen know how to exercise it'.a great deal better than wo can tell them. Argument in the case is likely to bo concluded to-morrow, and tho court will in all probability reserve its judgment.