MESSRS BROGDEN’S CLAIMS.

New Zealand Times, Volume XXXIII, Issue 5329, 26 April 1878, Page 6

MESSRS BROGDEN’S CLAIMS.

(From the Lyttelton Times, 32th insfc.) Wo.have observed with considerable surprise certain statements in two letters addressed to the Nkw Zealand Times at Wellington by Mr. John Henderson, the agent in New Zealand of the Messrs. Brogden, on the subject of their railway contracts. Mr. Henderson’s first letter is published in the New Zealand Tlmks of February 23 and his second letter appears in the Wellington Evening Post of April 2. Mr. Henderson states in his first letter that Messrs. Brogden were entirely unaware of the passing of the Government Contractors Arbitration Act, 2572, which relates exclusively to the Brogden contracts, and which enables a Judge of the Supreme Court to act solely as arbitrator in case of disputes arising in connection with these contracts. Mr, Henderson further states that the Act in question “ opposed a complex barrier to the prosecution by Messrs. Brogden and Sous against the Government of ordinary legal proceedings before a jury.” He adds that “Messrs. Brogden were advised that by the operation of that Act they would be forced to submit to the adjudication of the Supremo Court Judge, not only without the intervention of a jury, but without any right of appeal from his decision to any Court hero, or in England.” He proceeds to say that “ there unfortunately exist many and weighty reasons why Messrs. Brogden, when enforcing these disputed claims, should avail themselves of the protection afforded by an unprejudiced jury.” Disclaiming any imputation against a Judge, he reiterates tho objection to a sole Judge hearing and finally deciding these disputes. In his second letter, Mr. Henderson positively states that neither the Messrs. Brogden, nor | he, us their agent, nor their solicitor at Wellington, were aware, until about a year ago, of the Act referred to; that he, Mr. Henderson, was astounded when he first heard of it; and that his principals at Loudon on learning the news “ were, if possible, oven more amazed and disgusted” than himself. He indirectly accuses the Government in 3 872 of having smuggled the Bill through Parliament, and he describes the effect of the Act in the following high-falutin wordy ; —“ The Courts arc closed. Trial by jury is for Messrs. Brogdcu an impossibility. Appeal is cut away from them, and the Government Contractors Arbitration Act amounts to an art of repudiation*' (the italics arc his own) “us being utterly at variance with contracts entered into by the Government with Messrs*. Brogden previous to the passing of the Act.”

It will bo seen from what wc have stated that tho whole gravamen of Mr. Henderson’s complaint, expressed, we must say, in rather intemperate terms, is, that disputes arising out of the Brogden contract are to be submitted to the sole arbitrament of a Judge of the Supreme Court, and that in 1872, suddenly and without notice, an Act was passed to that effect at variance with and iu derogation of the terms of the contracts themselves —an act tantamount to repudiation. We have said that we observed these statements with considerable surprise ; and wc think that our readers will share in that surprise when they loam the facts. The plain tale which we shall give is no surmise, or conjecture, but a simple transcript of Parliamentary records of the time. The following extract is from a document laid before Parliament in 1872 : “ Memorandum of heads of an agreement entered into by Messrs, Brogden and Co. and the Goverment, represented by Mr, Reeves, on the 10th April, 1372, the subject of tho conference being tho differences which have ai’isen in respect to the general conditions hitherto in force with regard to the construction of railways in New Zealand. “1, On the subject of arbitration it was decided that, iu case the Governor or Minister for Public Works, as the case may be, and the contractors shall not agree, the matter shall ho determined by arbitration; and every such matter as to which they shall not agree, dispute or difference, shall be settled by arbitration, to lie conducted by reference to the solo decision of the Judge of tho Supreme Court iu New Zealand ■within whoso district tho cause of difference or dispute may have arisen. This submission to arbitration may bo made a rule of tho .Supremo Court nf New Zealand, or of any of tho superior Courts of Westminster, as the case may bo or required. The costs of and attending the arbitration and award shall be in the discretion of the arbitrators.”

On August 30, 1872, in the presence of the Governor in Council, of Mr. Brogden, one of the firm, and of Mr. W. T. L. Travers, tho Wellington solicitor of the firm, six railway contracts with Messrs, Brogden were duly approved and executed. These contracts were for the Auckland and Mercer railway, the Napier to Paid Paid railway, the Wellington to Hutb railway, the Picton to Blenheim railway, the Taieri portion of the Dunedin to Clutba railway, and the Invercargill to Mabaura railway. One of the general conditions attached to each contract is as follows :—“ Should any dispute arise between the contractor and the engineer, or between the contractor and the Minister of Public Works, or the Government, relative to the force, and intent, and meaning of the specifications, drawings, or conditions, or to the mode of carrying on the works, or the nature and quality of materials used or supplied to be used, or workmanship of work done, or as to the maintenance of the works, or as to tho expense of additional works, or of alterations or deviations from the specifications of plans, or as to any other matter connected with the execution of the works, or with the contract, specifications, drawings, or conditions, or as to any matter which by this contract it is expressly provided is to be settled, ascertained, or determined by arbitration, such dispute shall be referred in writing to the sole determination, arbitrament, and award of tho Judge of the .Supreme Court assigned to that judicial district of the Supreme Court within which the works relative to which the dispute shall have afisen have been, or are to bo executed, whose* award shall bo final, binding, and conclusive ou all parties.” There is an express provision in each contract that all disputes arising thereout “should bo referred iu writing to the sole determination arbitrament, and award of the Judge of the Supremo Court,” and that his award shall be “ final, binding, and conclusive on all parties.” Mr, Henderson is angry ami astounded without cause. Before any Act was passed, the contracts themselves shut out from Messrs, Brogden trial by jury and appeal. They themselves, deliberately and with their eyes open, did this dreadful deed. For technical reasons au Act was necessary to give the Judges full power in this matter. Mr. Travers, . the solicitor of Messrs. Brogden, admits in a letter which ho has written to the New Zealand TiiMEo of April 4, that “Messrs. Brogdcu

were informed by the Government in'office When their contracts were entered into, that an Act would be requisite to give to the Judges of the Supreme Court authority to act as arbitrators under’the contracts, and to provide for the course of procedure.” He says that he knew of the Act, but never read it until he was obliged to do so in connection .with, claims of Messrs. Brogden against the Government. He asserts that the Government had introduced into' the Act a set of provisions which materially modified the rights under the contracts, and had thus been guilty of a gross breach of faith. This is a singular illustration of the childlike simplicity and confidence of contractors and lawyers. One of the Brogdcus, we believe, was present in Wellington when the Act was passed ; certainly their solicitor and some representative of the firm were present. They knew that an Act was about to be passed exclusively relating to their contracts, which involved their interest in altogether more than half a million sterling. The Act was debated at some length in both Houses. And yet the Brogdcus and their solicitor never read the Bill, nor even the Act till about five years after it was passed. Mr. Travers does not specify the provisions in the Act inconsistent with the contracts. There appears to us that only one provision can be properly so characterised. It is the one which prescribes a limit of six months after the date of the dispute, within which the dispute can be heard. But this provision can be waived with the consent of the other party; and, certainly it appears to ns that, under the circumstances, the Government should not insist on such a provision. If the late Government did so, the present one should not follow their example. Otherwise, the Act seems to us faithfully to give practical effect to the provision iu the contracts that all disputes should be settled solely and finally by a Judge of the Supreme Court. This is the provision which excites all the ire .of Mr. Henderson, who, strange to say, forgets that it was a part of the then existing contract, and had been specially inserted. therein at. the express instance of Messrs. Brogden. ,It is ludicrous to read the debate on the'Bill by the side of Mr. Henderson’s letter. Mr. Stafford under whose short administration the Bill was passed,— Mr. Fitzherberb, and . Mr. Bolleston almost with tears in his eyes, begged the House to pass the BUI as a matter of justice and good faith to Messrs. Brogden, on the very ground which now Mr. Henderson, on their behalf, characterises as injustice and repudiation.