633
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loss or damage sustained through the operation of the Ordinance by non-assenting Crown lessees affected by the works and to award them such sum of money or such Crown lease of new land as he in his absolute discretion may think sufficient by way of compensation for such loss and damage, they called upon and required the then Acting Governor, Major-General W. Black, C.B., to inquire into the loss and damage sustained by them through the operation of the Ordinance. On the 22nd November, 1898, Major-General Black professed to award to the plaintiffs the sum of $13,000 by way of compensation for the loss and damage sustained by them by reason of the execution of the works. But Major-General Black did not make any proper inquiry into the plaintiffs' claim or into their loss and damage; he did not hear the plaintiffs, by themselves or by their counsel, in support of their claim; he gave them no opportunity of calling evidence to prove their loss and damage; he illegally and improperly received evidence put in by the Government in opposition to their claim, without giving them any opportunity of knowing what that evidence was or of contesting it; he took evidence in their absence and behind their backs; and finally his so-called award was not in accordance with such evidence as was put before him, he wholly disregarded it, and awarded to the plaintiffs a much less sum than they appeared to be entitled to on the evidence.
These are the allegations of fact on which the plaintiffs found their claim for relief. The relief asked for is that the award of the Acting Governor, Major-General Black may be set aside and may be declared by the Court to be null and void.
I proceed in the next place to examine the provisions of the Ordinance under which the works which the plaintiffs allege have caused loss and damage to their property were executed. The Ordinance is numbered 16 of 1889, and it was enacted on the 10th May, 1889. Its title is "An Ordinance to carry out a scheme for the Reclamation of the foreshore opposite the City of Victoria." The preamble is in the following terms:-
Whereas the foreshore of the harbour of Victoria is in process of silting up to the detriment of the health and commerce of the Colony, and it is expedient to put a stop to such process and to provide a deep water frontage; and whereas the area of level land for building and for roads and quays and open spaces along the sea front of the City of Victoria is insufficient to meet the growing wants of the Colony, and it is expedient to enlarge the same.”
By section 2 it is declared that "the works authorised by the Ordinance and all works for the effectual and convenient carrying out of the same are works for the improvement of the Colony and for a public purpose" within the meaning of that term as contained in the Crown leases of lands in the Colony.
Section 3 provides that it shall be lawful for the Governor to carry out the authorised works according to the approved plans. It also provides for deviations from the plans, for the immediate commencement and continuance of the works, and for the necessary staff and plant for carrying them out.
Section 4 describes the works authorised by the Ordinance. They are as follows:-
(a.) The making of an embankment along the harbour front of Victoria and upon the bed or foreshore of the harbour, with all necessary and convenient subsidiary works;
(b.) The making upon the embankment of a public roadway and the widening of the present Praya roadway; and
(c.) The reclaiming and filling up of the foreshore and bed of the harbour lying between the present Praya wall and the intended embankment.
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By section 5 power is given to the Governor to remove all obstructions to the works, as in his judgment may be necessary.
Section 6 deals with the reclaimed land and the land occupied by the present Praya roadway and wall along the line of the reclamation. These lands are declared to be the property of the Crown and to be subject to the disposition of the Governor in the same way as other Crown lands, and all private property, rights, and easements in or in relation to them or in relation to any wharf, etc., thereon are declared to be absolutely extinguished and determined.
The provisions of section 7 are long and somewhat complicated, but they are very material for the purposes of the present case. There is in the first place a preamble in which it is recited that the Crown lessees whose lands are along the line of the proposed reclamation, or the majority of them, have declared their readiness to contribute to the cost of the works provided the Governor will grant to them Crown leases of such equitable proportion of the reclaimed land as may be available, having regard to public requirements for roads, etc., and to the claims of the lessees as between themselves. It is further recited that the cost of the works is to include a sum not exceeding $5,000 for preliminary expenses, a sum not exceeding $180,000 by way of compensation to owners and occupiers of wharves and piers along the line of the proposed reclamation, and a sum not exceeding $105,000 for the purchase of certain specified land in course of reclamation. Provision is then made as follows:-
(i.) For the making and depositing at the Land Registry Office of a plan showing in detail the portion of the proposed reclamation assigned to lessees in respect of their lots of land, and the plan is to have annexed to it a Schedule containing a list of the lessees and the approximate contribution required from each of them in respect of the cost of his portion of the reclamation;
(ii) For the notification of the deposit of the plan and the publication of the Schedule, and for the signification in writing within two months thereafter by lessees who are desirous of entering into the agreement hereinafter mentioned of their acceptance of the portions of land assigned to them on the plan and of their intention to enter into an agreement;
(iii.) For authorising the Governor, if he thinks fit, within one month from the expiration of the above-mentioned two months, to enter into an agreement, in the form contained in the Schedule to the Ordinance, with the lessees individually who have signified their acceptance and intention as above mentioned, and for authorising the Governor to dispose of the reclaimed land in accordance with the agreements;
(iv.) For rectifying errors in the quantity or area of land agreed to be granted; and
(v.) For limiting (subject to sub-section vii.) the liability of each lessee to the actual cost of the reclamation of the land agreed to be granted to him and of the authorised works in connection therewith.
The next sub-section is very material. It is in the following terms:-
"(vi.) In case any lessee shall not signify his acceptance in the manner and within the time provided in sub-sections (ii.) and (iii) of this section he shall have no claim to any compensation in respect of depreciation of his lot by reason of the said works, but the Governor may if he thinks fit award to him such a sum of money or such a Crown lease of new land as he may in his absolute discretion think sufficient as and by way of compensation for any injury that such lessee may have sustained by the said works."