79

I.—B

was this : not as stating the case, but if it came to his knowledge before he stated a case for the Supreme Court that this withdrawal had been obtained by fraud he should have investigated it before stating it to the Supreme Court, or have stated in the case what had come to his knowledge afterwards. Either he ought to have investigated it, or not stated a case at all. That is the point. Of course, I assumed that he had seen this letter of Heperi's, and also Mr. Bryce's telegram, or I should not have made the comments I have. Mr. Bell: Supposing he had seen them, I confess Ido not understand your contention. He might, perhaps, have investigated the question of fraud. But the Court wanted a point of law decided for its own guidance, and it had intimated that it would state that point of law. I cannot see any reason why that point should not be stated. Besides, by lapse of time, the time for the rehearing had certainly gone, and, as Mr. Macdonald says later on, they could have done nothing. If the Committee will examine the cases which were drafted, they will find this : Mr. Fenton invited Dr. Buller to draw a case. Dr. Buller sent him a draft case. Mr. Cornford was invited to make alterations in it; but Mr. Cornford's alterations did not arrive in time, and so the Court, not getting them, prepared a new case of its own, which was entirely different from Dr. Buller's draft. And at this point the comment of the memorandum comes in that Mr. Cornford was acting in the interests of Dr. Buller's clients. That gentleman was asked to look over the case. Ido not think the AttorneyGeneral will refrain from admitting that this comment is erroneous, because I submit there are no such telegrams as are stated to exist. At all events, my attention has not been drawn to any such, though I have asked the Attorney-General for them. Now, on page 18 the memorandum comments at great length on the date of the order, and the fact that Dr. Buller had suggested a day which was certainly the day upon which the Court did not sit. As to that, whether the Chief Judge had or had not in his mind section 48 of the Act of 1880 Ido not know. This is the section : " Every order made or certificate granted by the Court on a rehearing shall bear date on such day as the Court thinks fit to fix not being earlier than the day on which the order of the Court was made on the hearing of the original application, and shall for all purposes have and be deemed to have had force and effect on and from the day so fixed." Whether he had it in his mind Ido not know, but there seems to be no doubt that Dr. Buller had it in his mind. Hon. Sir R. Stout: I would ask Mr. Bell, as a matter of law, whether section 48 would allow the Court to insert any date when really there was no rehearing. Mr. Bell: I see the difference. lam inclined to agree with the Attorney-General; but that is not the question. The question is, whether those who acted upon it were justified in putting upon it the construction they did. Hon. Sir B. Stout : Ido not deny that they- may have been deceived; but it does not warrant them in doing what they have. Mr. Bell: Yes ; but it was treated as an order of the day stated; and that section permits it. I say it was not unreasonable upon the authority of the section which I have quoted. Hon. Sir R. Stout: You must read the two previous sections a,long with it. Mr. Bell: I think section 48 is sufficient authority. Hon. Sir R. Stout: My opinion of this is that the object of this section 48 is to provide for the same thing we have provided in the Crown Grants Act. I believe it was put in, as it appears to be, very likely by the Chief Judge, when he was not cognizant of the full effect of section 50 of the Act, or, very likely, drafted before he came up to Wellington, and no one had any idea of the effect this section would have. One has only to read the two together to see they fit in. Mr. Bell: And now I have come to the last matter on which I shall address the Committee— that is, the letters and telegrams on page 19. I only desire to point out one or two circumstances which appear to me to be of very great importance. In the first place, the Natives had applied for a hearing of the same block, Owhaoko, under the name of Ngaruroro. It was a fact that that was a fraud upon the Native Land Court, and a very improper and unjust proceeding, whether the Natives did or did not see the injustice of it. There is no doubt it was a fraud upon the part, of the Natives. They must have known well what they were doing when they applied for a hearing of the block under the name Ngaruroro, and it was perfectly right of Dr. Buller and Mr. Studholme, as persons who held a title under the Owhaoko investigation, to apply to the administrative officer of the Court to see that this case should not be allowed to be again heard. Dr. Buller, so far as I see, is here right in telegraphing to Mr. Studholme to make application to the Chief Judge, though, when he says " Get Fenton wire Heale judgment affirmed," it is, no doubt, a very familiar way to put it. I quite think it was right to make an application to the Chief Judge to take the course proposed. I think that was the proper course, because Mr. Fenton was the onlyperson to whom a matter of this kind could be referred, as having the whole administrative business of the Court upon him, just as in the Supreme Court such an application would be made to the Begistrar. It is quite true that Mr. Studholme writes, "My dear Fenton ;" but I ask any member of the Committee what he would have done had he received that letter. It brought to the notice of the chief administrative officer of the Native Land Court that a fraud was being committed upon his Court; and, though it was in an irregular form, he had to consider what was his duty. He must either have replied to Mr. Studholme, " You must write to me, and commence your letter ' Sir,' and conclude with ' Having the honour to be,' " or put it upon his file, and direct his Clerk to answer it. ; Hon. Sir R. Stout: You say it is a fraud : will you explain how it was a fraud ? Mr. Bell: It was a fraud because it was an application for a hearing of the same block which had previously been determined, but under the new name Ngaruroro. It was necessary, in order to prevent this being again heard and determined, that an immediate notification should be sent to Judge Heale. It was a fraud to bring the land before the Court under a new name, Ngaruroro, and so deceive Judge Heale, who was not aware of the circumstances. Hon. Sir B. Stout: Will you allow me to ask this: Do you mean to say that, as no order had been made by the Court, the land was not open for application under section 58? Mr. Bell: I say that the order had been made.