19

1.—7

Mr. Bell: Clauses 4 and 18 lie amended, and clauses 5 and 6he drafted. We have no record of Mr. Travers having seen clause 81. I only submit that it is reasonable to suppose that Mr. Travers and Mr. Brogden did both see it. If the attack had been directed throughout against clause 31—if it had been admitted throughout that the Messrs. Brogden knew of the Bill, but it had been from the first alleged that clause 31 was inserted behind their backs —that would be very different thing. But the assertion until 1878 was that neither the Messrs. Brogden nor their solicitors had any notice or information of any part of the Bill. It is only since the publication of Mr. Travers' letter to Mr. Prendergast that the objections have been limited to the 31st clause. I desire before passing from this point to show that Mr. Cave was wrong in one statement he made yesterday, that Messrs. Brogden had practically abandoned the action of Mr. Barton in 1877. It may have been so privately, but certainly not to the Government. I wish to refer to the letter on page 31 of the printed correspondence, Mr. A. Brogden to Minister, 30th January, 1882. Then the Government say we could have had this inquiry under the Contractors Act without delay, but did not avail ourselves of it. Let us examine this matter: the first intimation we or our agent here, Mr. Henderson, or Mr. James Brogden, ever had of the existence of " The Contractors Act, 1872," was in January, 1877, after we had sent in our final accounts in respect of all our contracts excepting the Auckland and Oamaru cases. The startling character of the provisions of that Act, especially those limiting the time for arbitration to six months from the time when any particular dispute arose, and giving the arbitrator power to take unsworn evidence, without the opportunity of crossexamination, &c, quite overwhelmed our representative and took us equally by surprise. Notices to arbitrate were at once served by us, and the Government were asked to acknowledge that the notices were proper, but [they refused to accept them as in order, and never intimated their willingness to waive the limitation of six months, and therefore retained the position at any moment to say that they relied on that limitation. This Act was declared to have taken away our rights at common law and closed the courts of justice to us. It was new to us and unexpected, and therefore ■we naturally strove to test our common-law rights before adopting any of its provisions, one of which is that, in respect of any matter in which we proceed under the Contractors Arbitration Act, we voluntarily give up any right of action at law. Then comes lower down—■ It may seem extraordinary that we did not take steps to protect our interests while the Act was being passed, and remained ignorant of it for so long a time. Of our ignorance of it there is no doubt; and there is not much in that fact to occasion surprise, as it is essentially a private Act, and deals with no one but ourselves; but neither in New Zealand nor in England was any notice, such as is required in the case of private Bills, given to us. Its title is calculated to mislead, as it is called by the general term " The Government Contractors Arbitration Act," although it only applies to us, and not to the many other contractors with the Government, and its clauses were altered at the last moment in a manner materially affecting our interests and our position under the contracts, and this without any intimation to us or obtaining our consent. It is not necessary to state that this was done designedly, but the fact that the Act closes the courts of justice of the colony to us, and limits us to six months to go before the arbitrator, shows that we have suffered most grievous wrong by this kind of legislation, passed without consulting us and behind our backs. Messrs. Brogden there repeat practically the charge of bad faith that was made by Mr. Barton, though of course they couch it in less vigorous language. I am not going to trouble the Committee with that any further. I submit that it is more than plain—that itia perfectly clear—that Mr. James Brogden, the attorney, and Mr. Travers, the solicitor of the firm, saw and knew of the whole of theprovisions of the Act of 1872 as it passed through the House. They both forgot the fact. But coming to the correspondence of 1877, after the claims of 1876 had been made, let us see whether the Government desired then to insist upon the limitation of time. I say, it is plain upon the face of the correspondence, they never did. And to make it, if possible, more plain than it is upon the correspondence between the Solicitor-General and Mr. Travers, I now put in the official memoranda which then passed between the Government of the day and the law advisers. The Committee will find that notices requiring arbitration upon four of the Brogden contracts were served by the Messrs. Brogden on the Minister, in December, 1876. These notices were referred to the Solicitor-General, who, on the 20th January, 1877, wrote a long memorandum for the Under-Secretary of Public "Works. The first part of it is not very material to the present point, but it will be seen that throughout Mr. Eeid anticipated that an enquiry upon the merits, and without technicalities, was to take place. The four last paragraphs are of great importance. Mr. Eeid says : — I am aware that getting up this detail will involve a good deal of trouble, but, as the matter will finally be decided by the Judge of the Supreme Court, who sits as Arbitrator, special care must be taken to set everything out concisely but clearly. The notices themselves are, I think, irregular, and ought to have been given under the Government Contractors Act of 1872; and in this Act is a provision that the party desiring a reference shall take proceedings under the Act ■within six months after the dispute has arisen, unless with consent of the other party. This is not a provision which the Government would take advantage of, unless for good cause; but it may be useful to us should Messrs. Brogden desire to put the Government to inconvenience by bringing on all these claims at once in different parts of the colony. I think these notices should be acknowledged, and Messrs. Brogden informed that there are several matters stated in their notices which cannot be settled in the absence of the Engineer-in-Chief, but that on his return a final reply will be sent. The letter should state expressly that, in so acknowledging the notices, it is not intended to waive any irregularity in the terms or form thereof, nor to waive any right or privilege vested in or accorded to the Government or the Minister for Public Works under " The Government Contractors Arbitration Act, 1872." A suggestion might be added that in any future steps to be taken Messrs. Brogden's legal advisers should communicate directly with the Law Officers of the Government. Mr. Eeid says distinctly that the six months' limitation would be used only for the purpose of preventing the Messrs. Brogden from bringing on their claims at the same time in different parts of the colony. He proposed, in fact, to say to them: —" You may bring on one arbitration now —say the Waitara case—and in three months hence the Wellington, or any other case," and so on. It would not be fair to the Government that a number of cases should be brought on at once. The last paragraph of Mr. Znowles' letter to Messrs. Brogden, of the 26th January, 1877, written pursuant to Mr. Eeid's advice, is as follows:— The Minister intended to have deferred acknowledging the receipt of your letters, as above, until he was in a position to have gone fully and finally into the matter in dispute; but, after giving them such consideration as he is able, the Minister instructs me to inform you that he finds some of the matters in dispute cannot finally be fully investigated during the absence of the Engineer-in-Chief. On that officer's return, now shortly expected, a definite reply shall, however, be sent to you. Meanwhile lam to state that it is not intended by this acknowledgment to waive any irregularity in the terms or form of the various notices you have given, nor to waive any right or privilege vested in or accorded to the Government or the Minister for Public Works under " The Government Contractors Arbitration Act, 1872."