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I—7

Mr. Cave: If the Act had been more precise, if it had been less vague in its terms, no question would have arisen, but any one reading the Act carefully must see thab it is full of inconsistencies. It does not enact in precise terms what it purports to do, and arguments might be raised as to the construction of almost every clause. There can be no doubt about that. If in precise terms it had enacted that no action should be brought, or that the jurisdiction of the ordinary Courts should be ousted, of course there would have been no ground for the construction which Messrs. Brogden's legal advisers in London put on it. Mr. Montgomery ; In the letter of the Solicitor-General to Mr. Travers (14th February, 1877) the conference you suggested is agreed to. Mr. Cave: There were numbers of letters between Mr. Reid and Mr. Travers. Even after that-— even after the petition of right was granted —we wanted a conference. Mr. Montgomery : Between the 14th February and the Bth March, the date of Mr. Barton's letter, were there any letters between Mr. Travers and Mr. Reid ? Mr. Cave: I have no doubt there were. Mr. Montgomery : After you received the letter of the 14th February, explicitly agreeing to a conference, if you were dissatisfied with that, why did you not ask. for a more explicit arrangement? Was there any correspondence between the letter of the 14th .February, when the Government offered to waive the clause, and Mr. Barton's letter of the Bth March, when arbitration was absolutely refused by your side ? Mr. Cave: I cannot see any correspondence to show it. There was no letter from the Government between those dates. Mr. .Bell: There were some communications before the 14th February, which showed that Mr. Barton had been consulted before that date. Mr. Montgomery: On the 14th February the offer was apparently made by the Government to waive. Mr. Cave : Mr. Reid's letter of that date merely says, " I have ... to inform you. that the Government are prepared to adopt the course indicated in the letter above referred to." That, as I have already said, did not bind the Solicitor-General not to set up clause 31. Mr. Montgomery : It was an offer of some kind. Mr. Cave: It was an offer which, if Messrs. Brogden had accepted, and had been met by clause 31, they could not afterwards have retreated from and brought their action. I think there was an endeavour on our side to carry the arbitration out, because, if it was not the desire of Messrs. Brogden to do so, Mr. Travers's letter of the 15th May, 1877, to Mr. Reid would not have been written. That is merely asking for a definite assurance on the part of Mr. Reid that the clause would not be insisted on. The hope of being able to go to arbitration was not abandoned till long after the letteer of the Bth March. Mr. Bell: In the letter of the 31st January, 1877, part of the suggestion is that Messrs. Brogden should file their proposition, and that the Government should file theirs, and that issues should be drawn to raise the questions involved in the dispute. Mr. Reid says he agreed to that; and how would that be if Government intended to set up the 31st clause ? Hon. Mr. Oliver; Mr. Ormond's letter shows that is not the spirit in which it was written. Mr. Cave: If Messrs. Brogden had ,had a definite assurance that the clause was going to be waived, even upon terms, such as that they should only proceed with one claim at once, there would have been a probability that arbitration would have been proceeded with, but, as Mr. Henderson saw a doubt about the matter, he did not feel justified in going on. Mr. Montgomery: This arrangement between Mr. Travers and Mr. Reid seems to have been abruptly stopped by the change of solicitors. If there is any doubt in the minds of the Committee on that point, would it not be better to remove it ? Mr. Cave: Ido not think that was the reason. Mr. Travers did not cease acting when Mr. Barton was consulted. Mr. Henderson consulted Mr. Barton without reference to his principals. It was not until long after that Messrs. Brogden became acquainted with the fact. Mr. Travers was still their solicitors in May, and was still acting in connection with the claims. Son. Dr. Pollen : Would it not be quite true that the very fact of granting a reference was in itself a waiver of the 31st clause, inasmuch as the moment the case came before the Judge as arbitrator the 31st clause was inoperative ? Mr. Cave: That was not the view which Mr. Justice Gillies took of it in Auckland last March. He said, "The very first question I have to consider is—have I jurisdiction? I must ascertain if the disputes have arisen within six months." He was sitting as an arbitrator, and he said, " I cannot act as arbitrator, unless the Government consent, until I satisfy myself that the disputes have arisen within six months." Hon. Dr. Pollen: lam speaking entirely apart from that. The very act of the Government proposing to allow the case to go to arbitration was an actual positive waiver. Mr. Cave: It would not have been if they had afterwards chosen to plead clause 71. Son. Dr. Pollen: When they got the case before the Judge they could not plead it then, unless we assume an amount of rascality on the part of the officers concerned which is barely credible. Mr. Cave: Of course, if they did not raise it in their points of defence, they could not raise it afterwards. But the mere fact of the arbitration being instituted would not have debarred them from raising it. Son. Dr. Pollen ; No Government or private individual, I believe, would behave like that in any possible circumstances. Son. Mr. Miller : I think there is continual proof of the spirit in which the Government indicated its desire to act. This letter of the 4th June, 1877, is a very forcible instance. Mr. Cave : Well, I put it to the Committee, should Messrs. Brogden suffer for all time in consequence of one mistake on their part ? Hon. Mr. Miller •• Well, if they make this proposal on their part, it is difficult to understand tow vou can plead that the Government were the cause of the delay.