November 3, 1900.j
the evidence. The plaintiffs therefore ham bly pray that the award of the said General Black, the Officer at the date of such award, may be wholly set aside and may be by this honour- able Court declared wholly null and void and of Lo effect."
ÖHINA OVERLAND TRADE REPORT.
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for him, to refuse to be bound by the Ordinance | fused to agree to General Black's award of in so far as it referred to Praya Reclamation $15,000, that the plaintiffs in this case could Works, and so far as it referred to or affected not proceed and obtain judgment in that his pre-existing rights; and that if he so dis- Court on that award ? Supposing General sented and stood upon his rights as a Marine Black had said that the plaintiffs were Lot holder under his Crown lease he was entitled to nothing, and that they would have Continuing, Mr. Francis said the question, in fact entitled to have his special case investi- to pay the costs of the proceedings, would the therefore, was whether the award might be gated, and if he suffered any loss in consequence Crown have been entitled to come there and ask looked into, might be questioned and set aside of the Praya Reclamation works to have his for judgment for the costs? Supposing General by the Court. His Lordship would see, therefore, damages enquired into and compensation paid Black had awarded twice the amount claimed that no question arose in the case as to whether it to him. For the purpose of the present argu- instead of one-tenth of the amount and he had was or was not the duty of the Governor of ment, it was sufficient for him to say, whether entirely neglected to hear any evidence that the the colony for the time being to enter into a duty was imposed by law on the Governor of Government Officials or specialists under the such an investigation or to make such an award. the colony to investigate the plaintiffs' claim advice of the Attorney General thought it' That, for the purposes of this argument, was and, make any award or not, that the governor desirable to lay before him with a view to assist- admitted. General Black, who then adminis for the time being, General Black, rocognised ing him in coming to a conclusion, if he tered the Government, did make an award. and the fact that such a duty lay upon him, and had acted towards the Government in the the plaintiffs contended that he made it under exorcised his discretion as to what he thought same way as he had acted towards the the circumstances set out in the last clause of sufficient by way of compensation for any in. plaintiffs, and refused to hear the officers the petition-that be did not give the plaintiffs jury such lessee had suffered, and awarded of the Government or to give them an oppor the opportunity of being heard, either by them. him the sum of $15,000. He recognised the tunity of stating their case or questioning the selves or by counsel; that he received evidence fact undoubtedly by that award that the plain- plaintiffs' claim and evidence, would there have on the other side of the question without giv- tiffs had suffered some injury, and he assessed been anything in the Ordinance to prevent the ing them the opportunity of contesting that that loss and injury at $15,000. Therefore the Government from coming there and asking that eridence; and that his award was totally un- question for his Lordship's consideration now the award might be set aside ? In conclusion supported by any evidence put before him;
was not whether any such duty was imposed Mr. Francis reiterated that there was nothing and that if he had acted on the evidence upon the Governor by the Ordinance, not whe- in the Ordinance to deprive the Court of its put before him the award allowed ought thor he had an absolute discretion to refuse to ordinary jurisdiction. to have been very much more. Ordinance 16
assess any damage, no matter how great the The Attorney-General said-The Petitioners of 1889 commenced by reciting: Whereas loss. The Governor admitted that loss and in- allege that in or about the 22nd November, the foreshore of the harbour of Victoria is in jury were suffered by the plaintiffs; that they 1898, His Excellency Major General Black process of silting up, to the detriment of the were entitled to compensation for such loss-to made a certain award under section 7 of sub- health and commerce of the colony, and it is sufficient compensation. He took upon himself section 6 of the Praya Reclamation Ordinance expedient to put a stop to such process and to under the provisions of this Ordinance to inves. 1889, by which he awarded them $15,000 as the provide a deep water frontage; and whereas the tigate their injuries and to say what was a sum which he thought sufficient as and by way area of level land for building and for roads sufficient compensation and to award a certain of compensation for any injury that they and of quays and open spaces along the sea amount. There were two questions practically Sustained, as Crown lessees of M.L. 184, by the front of the city Victoria is insufficient to meet involved in the issue stated and now before the execution of the Praya Reclamation works in- the growing wants of the colony." etc., Pro- court First, having assumed that duty, was terposed between their lot and the sea. The vision was made in the Crown leases that if he or was he not bound to proceed in the
Petitioners are dissatisfied with that award as any land was required by the Government for exercise of the power conferred upon him by being too small, and in their Petition they public purposes it might be resumed by Gor-sub-section f of section 7 according to the laws allege that it was arrived at in an entirely un- ernment on payment of full and fair compen. of justice and equity? The second question was satisfactory manner, setting out the various sation to be assessed by the Surveyor General whether the Court was satisfied in point of fact objections they have to the procedure adopted. who at the present time corresponded to the -the facts being admitted for the purpose of For these reasons they ask the Court to set Director of Public Works. After dealing this argument-whether or not the Court, if that award aside and to declare that it is wholly with some of the subsequent sections of the those facts were proved to its satisfaction, had null and void and of no effect. It is right that Qalinance, Mr. Francis said he would in the
power to set aside the award on the same
I should point out that His Excellency the first instance call his Lordship's attention to grounds on which any ordinary award could be present Governor had nothing whatever to do the fact that this was a transaction in reality looked into and set aside by the Court? It with that award, and I may add that I was not between the body of the Marine Lot holders, in seemed to him so clear that a superior court
in the colony when it was made. The pre- whose private and individual interests this re- had jurisdiction to look into an award that he sent argument is confined to the question clamation was being carried out, and individual would ask his Lordship to call upon the learned whether this Court has, in the present proceed- Marine Lot holders, and that the Government, Attorney. General to show cause why the ings, jurisdiction to set that award aside, assum- while itself a Marine Lot holder in respect of Court should not exercise its undoubted jurisdic.ing (for the purposes of argument) all the facts some one or two pieces of ground, and therefore tion to safeguard the rights of any private in- stated in the Petition to be true, and having regard to the provisions of the Praya Reclama- tion Ordinance, 1889. The issue of law is settled thus by the Court, :-" ‘Assuming all the facts stated in the Petition to be true, and hay- ing regard to the provisions of the Praya Re- clamation Ordinance, 1889, has the Court juris- diction to enquire into the proceedings connect- ed with the award referred to in the Petition, and to set aside the said awaid and declare it null and void ?" If the Court decides that it has such jurisdiction it will become necessary later on to enquire whether the facts stated in the Petition are true or false, though for the purposes of the present argument that question does not arise. This Petition is brought under Section 83 of the Code of Civil Procedure. That Section states the nature of the claims which can be brought under it. No other claims can be so brought. Soction-83 of the Code says"All claims against the Government of the colony of the same nature as claims within the provisions of the Peti- tions of Right Act, 1860, 23 and 24 Vic., chap. 39, may with the consent of the Governor be preferred in the Supreme Court in a suit instituted by the claimant as plaintiff against the Attorney General as defendant. Is not the effect of section 83 to limit the claims which can be brought against the Government under that section to claims of the same nature as those which could be brought against the Crown under a Petition of Right?
The Chief Justice.-Do you wish me to call upon him now?
Mr. Francis--Yes, my Lord.
The Chief Justice-The general principle is quite clear, as you say, but the question in this case is whether. having regard to the special provisions of this Ordinance, the case comes within the general rules.
Mr. Francis, continuing. said that in re- ference to that his point was this. They had nothing to do now with the Ordinance. The Governor. General Black, exercised the whole of his powers under the Ordinance. He took upon himself the duty and responsibility of making an award, and he made an award. There was nothing whatever in the Ordinance which said how that award should be enforced or questioned. It was left on the face of the Ordinance to the general operation of the general law.
bound to contribute itself towards the construc-dividual. tion of the Prays Reclamation in proportion to the amount of land it held, was only simply an agent for the purpose of giving effect to what was a general agreement between the whole of the Marine Lot holders within the limits speci- fied in the Ordinance, The Marine Lot hold- ers, including the Government, had to pay the whole expense of carrying out the Praya Rɔ- clamation; and the Marine Lot holder, in- cluding the Government, were to get the whole of the available reclaimed land in proportion to their respective existing lots for their own private and individual use without payment of any premium to the Government except this that was part of the expense of carrying out the reclamation to which each Marine Lot holder had to contribute, including the expense of the construction of the Praya wall, of the roads through the newly reclaimed ground, and of all necessary sewerage and drainage; so that the Marine Lot holders paid for the entire work. In the second place he would call his Lordship's attention to what he submitted was plain from this Ordinance, sub-section 6 of section 7-that it recognised, taken in connee- tion with the provisions of section 2 and the provisions of the early part of section 7, that it was not in virtue of this Ordinancs directly, but in virtus of the agreement made between the Marine Lot holders individually and the Government as representing the whole of the Marine Lot holders that this work was
being carried out. The Ordinance gave the necessary powers to carry out the works it being thought advisable by all parties that the work should bɔ carried out by the Government and under Government super- vision instead of by the Marine Lot holders and under private supervision. It also distinctly recognised the right of any Maring Lot holder, if he did not think it profitable or convenient
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The Chief Justice-The issue is in these
terms. These things being so, that is to say, assuming all these facts as to his conduct and other matters to be true, having regard to the provisions of the Ordinance, has the Court jurisdiction to enquire into the proceed ings connected with that award, and to set aside the award? It raises the whole question of whether or not it was an award cognisable by the Court,
On objection by Mr. Francia, the Court con- sidered the question as to whether the jurisdic- tion, if existing, could be exercised in this par- ticular form of suit under section 83 was not open to argument on this issue. Bo the Attorney-General, rather than have an adjourn. ment, decided to proceed only with the other points.
Mr. Francis contended that there was nothing in the Ordinanca to deprive the Court of its ordinary jurisdiction either as regarded judicial or semi-judicial procedure. The Ordinance deprived the plaintiffs of their rights under their lease to claim compensation, but there was not one word in the Ordinance which deprived them of their rights after the award had been made or during the making of the award. Was it to be said, supposing another Governor had Continuing, the Attorney-General said-One come here or that the present Governor had re- ́ does not derive much assistance from consider.
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