634
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Sub-section (vii.) provides for the payment by the lessees of a proportionate part of any extraordinary or unforeseen expenses in connexion with the works, and sub-section (viii.) directs that so much of the cost of the works as is not contributed by the lessees is to be defrayed out of the public revenues of the Colony.
Section 8 will be dealt with presently.
Sections 9 and 10 have reference respectively to foreshore and other rights and to the maintenance of the sea-wall and roads of the new embankment.
The form of agreement is contained in the Schedule to the Ordinance. The historical position of the plaintiff's claim has now, I think, been made clear. They were Crown lessees and, as such, marine lot-holders affected by the scheme who did not enter into the agreement mentioned in the Ordinance, and they allege that their property having become depreciated in value by the execution of the works, it was the duty of the Governor to hold an inquiry into their claim for compensation. They further allege that the Acting Governor did hold such an inquiry, but that he held it in such a one-sided and improper manner that the Court will set aside the award founded upon it. It remains to consider whether, having regard to the provisions of the Ordinance, the Court has jurisdiction to inquire into the conduct and proceedings of the Acting Governor, and if necessary, to set aside his award.
The general scope and purpose of the Ordinance are sufficiently plain. The Legislature of the day recognized that it was a matter of great importance for the health and commerce of the Colony that a large reclamation of the foreshore opposite the City of Victoria should be made and a deep water frontage provided, and, a majority of the Crown lessees affected by the proposed works having agreed to contribute to the cost of the works on certain terms, it proceeded to make provision for the execution of those works. The duty of carrying out those works was imposed on the Governor, and he was invested with full and absolute powers for that purpose.
But it was obvious that, inasmuch as large and valuable interests were affected by the scheme, the progress of the works might be seriously delayed if the proprietors of those interests were at liberty to seek redress in the Courts of Justice for any injury to their interests which might be caused or supposed to be caused by the execution of the works. Accordingly, the Legislature obviated this danger by deliberately excluding the ordinary jurisdiction of the Courts in respect of claims of that kind. This was the view taken of the effect of the Ordinance in the case of Ryrie v. The Attorney General, which was decided by the Full Court in 1890. In that case, the plaintiff, as trustee for the City Hall, sought an injunction to restrain the Government from proceeding with the reclamation works in front of the marine lot on which the City Hall stands, on the ground that the effect of the reclamation would be to interfere with his right of access and proximity to the sea, convert his holding into an inland lot, and thus diminish the value of his property. The Court refused the injunction asked for on the ground that, apart from the Ordinance, the plaintiff was not entitled to an injunction but only to damages.
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On the question of the effect of the Ordinance, Russell, C.J., made the following observations: "But apart from the merits of this particular case, whatever may be the rights of this or any other marine lot-holder, the jurisdiction of this Court is ousted by the Praya Reclamation Ordinance. The Legislature has, by section 7, sub-section 6, enacted that Crown lessees who have not come in under sub-sections 2 and 3 shall have no claim to compensation in respect of any depreciation of his (sic) lot by reason of the said works, and the Governor is vested with absolute discretion as to awarding compensation to those who have not come into the agreement. If the plaintiff did attempt to come in under the agreement and was not permitted, or if he was refused any compensation by the Governor, still this Court cannot help him, for sections 6 and 8 extinguish all rights and remedies except those provided by the Ordinance, namely, to have an equitable allotment or quæ of compensation for injury as the Governor may decide." And at the close of his judgment, he says: "To put the matter shortly, I am of opinion that if the plaintiff has a cause of action at all, he is not entitled to an injunction, but only to damages. Second, that any cause of action which he might have is taken away by the Ordinance, which vests in the Governor the power of saying what, if any, compensation should be allowed."
Having regard to this decision, it must be and is admitted on the part of the plaintiffs that the general jurisdiction of the Court in respect of wrongs caused by the construction of the works is taken away by the Ordinance, and, to take the particular case now before the Court, that a non-assenting Crown lessee has no right of direct recourse to the Court in respect of any depreciation in value which may be occasioned to his lot by the execution of the works. But it is argued that, while this is so, and such a lessee is therefore left without his ordinary remedy, he is provided with a special remedy for redress of his wrongs. This special remedy, it is said, consists in the establishment of a procedure by way of or analogous to arbitration by which his loss may be inquired into and compensation for it awarded.
The Governor, it is said, is constituted arbitrator in such a case, and the duty is laid on him of inquiring into the case of the aggrieved lessee and of awarding him compensation for his loss and damage. It was very properly admitted by the Attorney General that, if the Governor is indeed an arbitrator under the Ordinance, some of the things which are stated to have been done by the Acting Governor cannot be supported, and the Court will be justified in interfering in the exercise of its general jurisdiction over subordinate tribunals. But the question is, is it really true that the Governor is constituted by the Ordinance an arbitrator, in the ordinary sense of that word, for the purpose of inquiring into the claims of injured lessees and of assessing and awarding compensation in respect of their loss and damage? It seems to me that this question must be answered in the negative. I will state shortly the reasons which have led me to form this opinion.
A good deal of stress was laid by Mr. Francis, counsel for the plaintiffs, on the use of the word "award" in section 7 (vi). It was said that the word is a term of art and imports a quasi-judicial inquiry and determination, and that it must be taken that the Legislature employed it in this technical sense, which is also its ordinary sense. It is true that this is the primary signification of the word, but it is equally true that the word is often used in a more general sense as meaning "to allow; to allot; to yield." It appears to me that an examination of the whole of the context shows that in section 7 (vi) the word "award" is used in the general and not in the special or technical sense. It will be noticed from the passage quoted above that Russell, C.J., in his judgment speaks of "an equitable allotment or quæ of compensation for injury."
There are, in my opinion, several serious difficulties in the way of holding that section 7 (vi) of the Ordinance establishes a procedure by way of arbitration, with the Governor as arbitrator, for awarding compensation in cases such as the one now before the Court.
In the first place, there is no machinery of arbitration provided, either by express enactment or by the familiar method of incorporating the provisions of other statutes relating to arbitration. Nothing is said about the aggrieved lessee preferring his claim for loss or damage within a prescribed time, to a prescribed person, or in a prescribed manner. Nothing, again, is said about the Governor inquiring into such loss or damage, whether on a formal claim preferred or otherwise. Supposing that he does so inquire, the enactment is silent as to the right of the aggrieved person to appear before him or to submit evidence to him in support of his claim. Further, an arbitration implies a proceeding by two parties before an arbitrator or umpire, but there is here no indication as to who the party other...