The Dominion. THURSDAY, APRIL 6, 1911. AN OUTSPOKEN JUDGE.

Dominion, Volume 4, Issue 1095, 6 April 1911, Page 4

The Dominion. THURSDAY, APRIL 6, 1911. AN OUTSPOKEN JUDGE.

_ A case which was before the Engish Court of Appeal last December ms not yet received in New Zealand :he attention which it deserves. A small Yorkshire landowner named Dyson received last August, like vundreds of thousands of other Bri;ish landowners, a copy of "Form IV," under the Finance Act, requiring him to furnish certain informa;ion regarding his property. The torm was made returnable to "the ippointecl officer," one Hugh Bateson, who was described afterwards is the village blacksmith of Kirkby Dvcrblow, which is the next parish to that where Dyson lived on his own land. Dxson objected to making :crtain of the disclosures required ■jy Form IV, and he seems to have jeen particularly unwilling to comnunicate to his neighbour the blacksmith an estimate of the rent for which his little property might bo let to a yearly tenant. Dyson, therefore, without waiting for proceedings to be taken against him for iioij-compliance, commenced an action against the Attorney-General, claiming a declaration that certain jf the requirements of Form IV svere ultra vires, and that Bateson, not being in the employment of the Commissioners of Inland Revenue, ivas not a person to whom the plaintiff could be required to furnish the returns. The Attorney-General thereupon adopted the course of action which was really the subject of the judgment to which we wish to draw attention. He took out a summons under the Rules of the Supreme Court to strike out the statement of claim as disclosing no reasonable cause of action. That is to say, lie demanded that Dyson's case should not be tried. Mu. Justice Lush, "affirming a previous decision of the Master" (we quote the Times report), made an order in terms of the summons. This was done in Chambers. Dyson appealid, and the three eminent Judges who heard the appeal concurred in reversing the decision of Mr. Justice Lush, and declaring .that the appellant was entitled to have his fiction against the AttorneyGeneral proceed to trial. The Master of the Rolls, at the jiitsct of his judgment in the Court of Appeal, affirmed that the Rule which hadjjecri invoked by the At-torney-General "ought not to be applied to an action involving serious investigation- of ancient law and questions of general importance." He thought, this was sufficient ground to entitle the plaintiff to succeed, but as elaborate argument had been submitted, he proceeded tc state at some length his views on the question whether the Attorneycould be sued in such a case. After giving his reasons for answering this question in the affirmative, he concluded his judgment with the remark: "In fairness to the learned Judge from whoso order the appeal is brought, I would add that the authorities bearing on the case were not, and could not be, called to his attention in Chambers." Lore Justice. Fletcher Moulton, in a concurring judgment, declared that the Court's "power of arresting and deciding an action without trial"— the power which the AttorneyGeneral had sought to invoke—"was one to be very sparingly used." Both these judgments were instinct with that high sense of responsibility for which the British people jvevywherc look to their Judges, and rarely look in vain; But the last oi the three concurring judgments, that ot Loud Justice Farwell, expressed in addition something which the preceding ones, however clearly, did but imply. It showed that the Judge was also a public-spirited citizen having the ancient English abhorrence of any attack upon the constitutional liberties of the subject. He said, according to the Times report, thatThe plaintiff sought a declaration from the Court of th, true construction of at Act which imposed burdensome and t.v pensive inquiries upon him and foi non-compliance with which lie wa; threatened with fine;. The argument foi the Attorney-General admitted for thipurpose the illegality of the inquiries but claimed for a Government Depart ment a superiority to the law which wa< denied by the Court to the King himsel! in Stuart times. . . .-It was said thai if an action of this sort would lie then would be innumerable actions for dcclara tions as to numerous Acts, adding.greatlj to Ihe labours of the law officers. Bu'i the Court was not bound to make dcclara tory orders, and would refuse to do so un less in proner cases. There was no sub stance in the apprehension, but if incon venience was a legitimate eonsidcratioi at all, the convenience in the public in terest .was all in favour of providing ; speedy and easy access to the Courts foi any of his Majesty's subjects who ln< any real cause of complaint against th< exercise, of statutory noivers by. Govern ment Departments .'and Government ofli rials, having regard to their grow-in! tendency to claim the right, to act with cut regard to legal principles and with out; anneal to any Court. Tn th<> prcscn 1 year in that Court alone there hod beei three of such cases. His Lordship pointed out that ii the present case the law officers contrary to their former salutan practice, had endeavoured by rais ing a preliminary objection to pre vent the trial of a case which win apparently of the greatest import anco to hundreds of thousands of hi: Majesty's subjects. And ho con eluded: If Ministerial responsibility were mor< than the mere shadow of a name, tin matter would be less important', but, a. things were, the Courts were tiio only de fence of the liberty of the subject agains; Departmental aggression. His Lordship presumably hac only. English affairs in mind, bui

have we not oven worse conditions in this country? In New Zealand we have Departmental officials endeavouring to enlarge their own authority at the expense of the general liberty; the principle of Ministerial responsibility receives little hut lip-service from those who should honour it in all their actions; we have witnessed the Crown refusing permission to citizens it has injured in business or in person to proceed against it in the courts of law; and certain of our Judges, by dealing with important matters in the privacy of "Chambers/' have shown an increasing disposition to place the wishes of litigants before the public interest. If the liberty of the subject, thus powerfully menaced, is yet' dear to New Zealandcrs, then we may well be grateful for a declaration so independent and so outspoken from so high a judicial seat.