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(d) An application was next made to the Supreme Court for special leave to appeal from the previous decision of the Court, the time for making the application having run out. This was dismissed with costs, on the ground that there had been laches in presenting the motion.
(e.) A further application was then made to the Court for leave to appeal from its refusal to grant special leave to appeal to the Privy Council. This was granted.
(A) The Judicial Committee dismissed this appeal, the refusal of the Supreme Court to grant special leave to appeal on the ground of laches being upheld.
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In considering whether any of the costs of (d), (e) or (ƒ) should be allowed in the event of the award now to be given exceeding General Black's award, I have been much pressed by the consideration that had the Government yielded to the claimants' request to re-open the matter, none of the proceedings by way of appeal to the Privy Council would have been necessary; nor would they have been taken, having regard to the fact that the claimants had proposed an arbitration. I have also been pressed by the fact that in the judgments in the Supreme Court in (7.) both Judges laid stress on the waste of time which had resulted from the corres- pondence with the Government. But the appeal to reverse this decision was dis- missed, the same view being taken of the laches in moving for leave to appeal as in the Court below.
The position as to the costs of all these proceedings is therefore this-The proceedings at law were wrongly conceived ab initio; and there can be no doubt that had the Judicial Committee heard the appeal on the merits, it would have been dismissed. But. on the other hand, had the Government agreed to the arbitration which was asked for, these erroneous proceedings would not have been taken. Whether the costs of these proceedings should be granted is, to a great extent, a matter of appreciation; and although the Courts do not have regard to the fact, an arbitrator may well take into consideration the largeness of the plain- tiffs' claim, and the proportion which the amount actually awarded bears to the amount paid into Court.
With regard to these costs, viz., of (d.), (e) and (f), I limit my answer to this: that, equitably they may be given to the claimants.
(g.)—Lastly, a petition was presented to His Majesty the King, praying that further compensation should be granted. His Majesty in 1903 was not pleased to give any commands with regard to this petition.
Should the award now to be given exceed General Black's award, the costs incurred in connection with this petition should be allowed.
CHAMBERS,
10th July, 1905.
(Sd.) F. T. PIGGOTT,
Chief Justice.