June 13, 1908.]
Hon, Sir HENRY BERKELEY said that it was a serious obligation to impose upon the Govern- ment to ascertain to whom the money was to be paid. It was safer to allow the Bill to stand as it was.
Hon. Mr. STEWART-The owner will have to establish his claim before be is compensated.
HIS EXCELLENCY- Yes,
Hon. DIRECTOR OF PUBLIC WORKS-Such matters usually pass through the Crown Solicitor who satisfies himself as to the right of the parties.
Hon. Mr. STEWART—Another argument in favour of publicity.
His EXCELLENCY-The Government will satisfy itself through the Crown Solicitor that the mouey g088 to the proper parties,
The ATTORNEY GENERAL-Does the pro. posed amendment neet your view ?
Hon. Mr. FOLLOCK-No. I think there ought to be some reference to the mortgages or to any charge upon the property.
cau
His EXCELLENCY-I don't think we accept that responsibility. Do you wish to press
it to a division.
Hon. Mr. POLLOCK-No. On further con. sideration I think it would be better if the section read "compensation to be paid in respect of such buildings."
CHINA OVERLAND TRADE REPORT.
On clause 84, which deals with the question of appeal to the Governor-in-Council,
The ATTORNEY-GENERAL said he understood several amendments would be moved to that olause. The object of the clause was to make appeals to the Governor-io-Council easy, and he proposed to insert certain words extending the section and making it general. It would be desirable to add some words in order to ensure that those appeals should not
go to the Governor in Council in cases where the matter would go before a court, as for instance the question of nuisances which the Ordinance provided should be dealt with summarily.
The ATTORNEY-GENERAL read the alterations he suggested and those were agreed to.
The Hon. Sir HENRY BERKELEY said that the effect of the section in giving the right of appeal to the Governor in Council was to constitute the Executive Council into a divisonal
tribunal. Parties who came before that tribunal ought to have every facility for patting their appellant should know the respondents' case and cases fully before it. It was pecessary that the have an opportunity of answering it before
It was it came before the Governor in Council. also necessary that the appellant should have time to prepare his case to meet the case put forward by the respondent, and, The AT ORNEY GENERAL-The arbitrators he suggested that the clause should include cannot inquire into the rights of mortgagees, The amendment was subsequently agreed to.
& proviso affording the appellant the time that is necessary and the information that is re- The DIRECTOR of PUBLIC WORKS sug-quisite to enable him to put his case before the gested that it would be wise to provide some Council in such a shape as will enable the' elasticity so as to allow of some other remedy than pulling down every third house.
The ATTORNEY-GENERAL expressed a doubt as to such a proviso being introduced into that section which was only intended to deal with consequential works.
The COLONIAL TREASURER moved certain amendments dealing with the financial part which were accepted, and clause 44 as amended was passed.
His EXCELLENCY-It is proposed to repeal subsections 1 and 2 of section 69 and substitute the following:
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(2). The Building Authority shall within 28 days of the submission of such plans and draw- ings notify the person submitting the same, or his architect or other representative, of every matter in respect of which snch plans and drawings are not in accordance with the re- quirements of this Ordinance and of all byelaws and regulations made thereunder, and if the Building Authority does not within such period of 28 days
notify any such matter, the building or works shown in such plans and drawing may be commenced in the same manner as if the approval of the Building Authority had been received: pro. vided that in the event of such plans and drawings having been withdrawn during such period of 28 days by the person submitting the same or his architect or other representative from the office of the Puilding Authority the said period of 28 days shall be calculated from the date of the final submission of such plans and drawings.
(3). If the Building Authority shall within such period of 28 days notify the person sub- mitting the plans and drawings or his architect or other representative of any matter in respect of which such plans and drawings are not in accordance with the requirements of this Ordinance or of any byelaw or regulation made thereander, and if such plans and drawings shall be amendel by the person submitting the same or his architect or other representative, the Building Authority shall
or
approve
disapprove of such amendment with- in a period of fourteen days from the time the amended plans and drawings are deposited with him, and if he shall not signify his approval or disapproval within such period of 14 days the building or works may be com- menced in the same manner as if the approval of the Building Authority had been received.
His EXCELLENCY- It is also proposed to insert a new sub-section, sub-section 4. It merely confirms the existing practice. It is :- (4) All plans and drawings submitted to the Building Authority and not disapproved by him under s.s. 2 or 8 shall be deposited in his office and filed there.
The other sub-sections were renumbered.
words be add ed
*
Council to come to a proper decision. He would move that at the end of the clause the The Clerk of Council shall give the appellant seven days' notice of the hearing of the appeal and shall at the same time furnish the appellant with copies of all minutes and documents submitted on behalf of the respon- dent for the consideration of the Governor-in- Conncil
would not involve the minutes that passed The ATTORNEY GENERAL caid that minute
batween the Governor abd the Colonial Secretary.
The Hon Sir HENRY BERKELEY replied that any documents that would be likely to influence the Governor in Council in his decision ought to be submitted.
The ATTORNEY GENERAL said that minutes information and documents submitted" should we re privileged. He would suggest that all
take the place of the proposed phraseology.
Hon. ir HENRY BERKELEY agreed to take out the word "minutes"
The COLONIAL SECRETARY said the Director of Public Works furnished reports in such Dases. It was those reports that they wanted.
His EXC LLENCY said he was afraid the papers would become too voluminous.
The COLONIAL SECR TARY suggested evid- ence and documents.
This was agreed to.
The ATTORNEY-GENERAL said there were
certain amendments which he desired to insert
to the clause and there were other amendments submitted which he was not prepared to acoapt. Where a magistrate is asked to state a case it is stated by the judicial authority himself and it the actual point for consideration to the Fall was possible that an instance might aris as to
Court. The Governoria Council might press a certain aspect of the case which engage the Au hority might take a different view. attention of the Court and the Building In view of any dispute arising out of any question on which the Court was asked for direction the Court should have an opportunity of stating a case.
Hon. Sir HENRY BERKLEY sail it was the intention of the Bill that when the opinion of the Court had been delivered the Governor-in-Council uld act in accordance. That should be stated clearly and he would ask the Attorney-General to accept an addition to the clause giving effect to that.
Hon Mr. POLLOCK comarked that it seemed a carious procedure to have the opinion of thə Court remitted to the Governor-in-Connoil.
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own initiative when doubt arose as to a point of law take the cases to the High Court or they might be compelle 1 by the appellant to state a case for the High Court. The High Court then remits the case to the tribunal.
The ATTORNEY GENEBAL said the object was to get a decision on the subject. The words read-The Court shall remit the matter to Government-in-Council with the opinion of the Court." It was perfectly obvious the Governor would set on the direction of the Court. He thought the amendment was wholly unnecessary. ·
the
The Hon. Mr. POLLOCK Moved an amendment that the words "shall remit the matter to the Governor-in-Council with the opinion of the Court on the case stated" be followed by "and shall have power to enforce auch determination by maadamus, injunction prohibition or other order." The object of this amendment was said to give to the Fall Court power not only to cite an academic opinon upon a question of law submitted to it but, if necessary, to enforce that order in a proper way. It was obvious that it was no use asking the Governor-in- Council to direct a case to be stated for the opinon of the Full Court unless the Court had conferred upon it the necessary power to enforce its decrees, Notwithstanding the explanation of the hon. Colonial Secretary he thought it was absurd that a case stated should be referred back to the Governor-in-Council. The proce- dare to be followed presupposed that the Governor-in-Council has taken a certain view apon certain provisions which the appellant disputes and he asks that the matter shall come before the Full Court, from that moment the matter should vanish out of the Jurisdiction of the Governor-in-Council entirely. The Fall Court stated opinion upon the case stated and he could not see the smallest reason for the matter being remitted to the
Governor-in-Council.
The COLONIAL SECRETARY explained that this procedure was taken from the London Building sot. The tribunal in London con- ̧ sisted of three experts, who might on their
an
The COLONIAL TREASURER asked how a mandamus would be enforced проп the Governor.
Hon. Mr. POL: OCK replied that the mandamus would not be enforced upon the parties to the proceedings.
Hon. Sir HENRY BERKELEY said that in view of the unwillingness or inability of the Govern- ment to accept his amendment he thought it was advisable to insert words to secure the protection of the interests of the appellant and he consi- dered that the Government should accept Mr. POLLOCK'S amendment. Unless some clause of that kind were put in giving the remedy suggested by Mr. POLLOCK, the clause would become a dead letter. It was a principle of the course of justice that the High Court would not issue a brutum fulmen, would not express an opinion, would not issue a decree which it could not enforce, and therefore if the Bill passed in that partion. lar shape the Court would refuse to exercise the jurisdiction conferred upon it because it could not ensure obedience to any judgment it might deliver. He thought it would be an easy way out of the difficulty were Mr. Pollock's amendment to be adopted.
The ATTORNEY-GENERAL said he should like members to consider the affect of the amend- ment proposed. In reply to Sir Henry Berkeley he would say that their reason for not accepting such an amendment was that they considered it unnecessary. He did not wish to cast any re- flection on the suggestion but if the amendment were carried it would make the appeal to the Governor-in-Council a farce. Personally he should always advise the Governor in Council to follow the ruling of the Fall Court. He did not agree with the observations as to the attitude which the Court would adopt, cases were stated for the opinion of the Court and the Court could not refuse to exercise its discretion. The Ordinance expressly provided that upon a case being stated the Court shall give certain advice to the Governor- in-Council and shall remit the matter to the Governor-in-Council. That was according to statute, and he was quite sure no court would refuse to act upon it. What the result might be did not concern the Court, but the Governor- in-Council. It was suggested by the mover of the amendment that the Building Authority being a Government official it would be necessary to enforce the order of the Court by mandamus, but he submitted that was absolutely
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