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The Pamphlet Collection of Sir Robert Stout: Volume 77

Charges Against the Court

Charges Against the Court.

Their Lordships say:—

"So far their Lordships have treated the case as if the order under appeal had been made on a proper application and in a suit properly constituted. In fat however, the application was entirely irregular, and the suit was not one in which such an order as this obtained by the Solicitor-General ought to have been made. It is contrary to the established practice of the Court to permit a defendant to an action for the administration of the trusts of a settlement not void on the face of it to impeach the settlement in page 13 his defence to that action. If he thinks he has a case for setting aside the settlement or having it declared null and void, he must attack it openly and directly in an action or counter-claim in which he comes forward as plaintiff. Any other course would be inconvenient, embarrassing, and unfair."

There are no rules of procedure in our Courts that prevent a defendant raising any defence to the claim of a plaintiff, though adequate relief may be denied him unless he begins a suit. If, as the Solicitor-General contended, the land had reverted to the Crown, then the jurisdiction of the Court to act as if it was a general charity and to apply the cy-pres doctrine was ousted And ho had a right to raise this contention. No rule of our Supreme Court or of our Appeal Court is quoted in defence of the decision of their Lordships, and it is by the rules of the New Zealand Courts that such a question must be determined.

I may further add that both in the Appeal Court and in the Privy Council this point was not raised by the appellant counsel. If the defence pleaded had been no defence in law to the plaintiff's claim, that point should have been specially raised in accordance with our code of procedure. The shorthand notes of the argument in the Privy Council show that what was argued there was not that the Solicitor-General could not rely on the defence he raised, but that the gift was a general charity; that the Crown was not deceived; and the gift was not to a school on a specified site, and for the education of children therein.

The point of practice referred to—for it does not touch the merits of the controversy between the parties—was not relied on by the appellants' counsel either before the Appeal Court, or before their Lordships; and it would seem that the rights of the Crown in such a case could have been discussed in a suit instituted to obtain judical sanction to a scheme. (Attorney-General v. the Ironmongers' Company, 2, M. and Keen, 576. Note on p. 578).

But if the suit was not properly constituted, to raise the legal questions argued by both parties (and on that matter, I need express no opinion), was it expedient for their Lordships to deal with merits which were not, on this assumption, properly before them?

Their Lordships further comment on the defence:—

"Then on the hearing of the appeal the Solicitor-General applied for and obtained leave to amend his defence. A formal order for the amendment was necessary 'to more clearly define the grounds of defence of thes page 14 Crown.' But the amendment only made the confusion worse. It was a medley of allegations its capable of proof and statements derogatory to the Court."

Their Lordships seem to have overlooked that the amendment referred to was made "by consent." The plaintiffs had no object to the further statement of defence. And it is unusual in New Zealand for a Court to refuse an amendment of a pleading to which both litigants agree.

This new defence is declared to be a "medley of allegations is capable of proof and statements derogatory to the Court." It is better to set out this so-called "medley." The further defence was as follows:—

"The defendant by Hugh Gully, Crown Solicitor for the Wellington District, further amends his statement of defence filed herein by adding thereto the following paragraph:—That the terms of cession to the Crown by the aboriginal natives of the lands comprised in the grants were such as to preclude the Crown from consenting to the application of the said lands and rents and profits thereof to any other purposes or objects than those expressly mentioned in the grant. And that the Crown has a duty to observe the terms of the session to itself and the trust thereby confided by the aboriginal natives in the Crown. And that the Executive Government has determined, so far as the matter is one for the determination of the Crown, that any departure from the precise terms of the grant by the application cy-pres of the said lands and funds without the consent of the Parliament of the colony would contravene the terms of the said cession and be a breach of the trust thereby confided in the Crown."

Whether the defence was well or ill founded, it did not was in lucidity. It sets up, first, that the terms of the session by the natives precluded the Crown consenting to the funds going in support of a school in Wairarapa; second, that the Crown was bound to observe the terms of the cession; third, that the Executive Government so far as it could determine it, and so far as it was for the Crown to determine it, declared that any depart from the terms of the cession must be made by Parliament.

I do not understand what the allegations are that were "incapable of proof." The first two defences are statements rathe of law than of fact, and the third—a statement of fact—could not be disputed. What, then, were the "allegations that were in page 15 capable of proof"? Such disparaging phrases as their Lordships have used do not, it appears to me, tend to the elucidation of the important questions they were called upon to decide.

Their Lordships in still critising the defence say:—

"But the Court accepted it and treated it with extreme deference. The learned Judges intimate pretty plainly that if they had not been able to find satisfactory reasons for deciding in favour of the Crown, the amendment would of itself have prevented their making an order in favor of the trustees. The amendment divided itself into two parts. In the first place it asserts that the Crown has come under some undefined and undisclosed obligations to the natives. The Court seems to think that this assertion must place the Court in a considerable difficulty. Why? Why should a Court which acts on evidence, and not on surmise or loose suggestions, pay any attention to an assertion which, if true, could not have been proved at that stage of the proceedings, and which evidence the cause shows to have been purely imaginary? According to the evidence, the only obligation which the Crown undertook was to waive its right of pre-emption."

These sentences do not correctly describe the attitude of the Court. The Court said:—

"If the true construction of the grant is that the land included is to be held by the Bishop and his successors in perpetuity for charitable purposes, notwithstanding that the particular school has ceased to exist, then in the absence of any special circum-stances we think the Court has jurisdiction to approve of a scheme for the management of the trust property, notwithstanding the grant is from the Crown." Etc., etc. ...

And again—

"The Court by virtue of its general jurisdiction over property held by trustees for charitable purposes can give the trustees authority by approving of a scheme."

The question then was, Were there special circumstances which made the question of exercising the jurisdiction difficult? The Court held there were.

It is to be noted no representatives of the natives were before the Court, and it was therefore the duty of the Solicitor-General to guard any rights they might possess. The Crown stated that the page 16 terms of cession prevented the cy-pres doctrine being applied, any that it Lad duties toward the natives. The Court held that the session was an act of State, and that it was difficult, if not impossible, in 1900 to enquire—if it had jurisdiction to do so—into act of State in 1850. How is this contention of the Court [unclear: met] their Lordships? By asserting that the only obligation the [unclear: Cou] undertook was to waive its right of pre-emption. The assertion as I have shown, based on a fallacy. I repeat the Crown [unclear: stood] quite a different position. It had the occupancy or [unclear: possess] rights of the Maoris ceded to it that it might endow a school, said it was in a sense a trustee to give effect to that cession. [unclear: Furth] it gave up its title—the title in fee-simple—to the Bishop.

It was not the Appeal Court that was acting on loose [unclear: sugg]tions or in ignorance of the Statute law of the country. [unclear: Th] Lordships reiterate their inaccurate statements about the [unclear: Tre] of Waitangi. They say:—"At the date of the session to [unclear: Bis] Selwyn the rights of the natives in their reserves depended [unclear: sal] on the Treaty of Waitangi." This has been written through was of knowledge of our Statutes and the uniform practice of the Court in dealing with the demesne lands of the Crown in the [unclear: colo] (See the charters and Royal Instructions before referred to), They continue:—"There is not in the evidence the slightest trace any cession to the Crown or of any bargain between the Court and the native owners."

My remark just made applies to this sentence also. [unclear: What] Maoris did was deemed a cession, otherwise the Crown [unclear: grant] not have been issued, as the land had been reserved for the [unclear: Ma] What the bargain was and what took place were not [unclear: proved], the Court so held. These questions were not in issue in [unclear: the] and the Appeal Court doubted its power to enquire into this of State, namely, the cession of Witireia.

Just before the conclusion of their judgment, their Lordship say:—

"'We see great difficulty,' say the learned Judged holding that in such circumstances the [unclear: Court] or ought to interfere.' The proposition advanced of behalf of the Crown is certainly not flattering [unclear: to] dignity or the independence of the highest Court it New Zealand, or even to the intelligence of the parliament. What has the Court to do with the [unclear: Ers]tive? Where there is a suit properly [unclear: constituted] ripe for decision, why should justice be denied [unclear: or] layed at the bidding of the Executive? Why [unclear: sha] the Executive Government take upon itself to [unclear: inst] the Court in the discharge of its proper functions"

page 17

The passage quoted from the judgment of the Appeal Court was a statement made after the Court had determined the lands had reverted to the Crown, and was in answer to the question argued at length as to what the Court could or would do if there was no reverter. The Court had not declined jurisdiction. It had decided the main question that had been argued, and was involved in the suit adversely to the plaintiffs. And the remarks quoted were meeting arguments that were only relevant to a state of things the Court found did not exist. Any person reading their Lordships' remarks and being unacquainted with the judgment of the Court of Appeal, would assume that this Court had declined jurisdiction, had denied justice, and had lost its dignity and independence through dread of the Executive Government. These imputations are baseless, and I hardly think it is becoming in the highest tribunal in the Empire, to make such charges against any Court, unless they are conclusively proved.

I have already explained the attitude of the Appeal Court. Their Lordships, when they made the imputations I have quoted, knew the position the Appeal Court took up, for in the judgment of the Court there is this passage:—

"The position appears to be somewhat as follows: The Crown, as parens patriae, through the instrumentality of this Court, sees that property devoted to charity shall be applied for the purposes of charity, and that where no purposes are specified the Court as representing the Crown is to define the purposes. The Crown also as parens patriae is under a solemn obligation to protect the rights of native owners of the soil. When, therefore, the Crown as parens patriæ asserts that in that capacity it is under an obligation to natives in respect of a property, can this Court representing the Crown as parens patriae, say to the Crown, 'You shall not carry out this obligation, but the property you have created shall be devoted to charitable purposes to be determined by the Court irrespective of your obligations?' We see great difficulty in holding that in such circumstances the Court could or ought to interfere."

It will be noticed that this last sentence, as quoted in the Privy Council judgment from the Appeal Court judgment, is dissociated from its context. Any one reading the Privy Council judgment, and not knowing the Appeal Court judgment, must inevitably be misled by the way the quotations are made. Their Lordships do not attempt to answer the pertinent question the page 18 Court of Appeal asked, or to meet the arguments used, but [unclear: ind] in language that is happily rare in judicial judgments [unclear: prono] in this colony.