SUPREME COURT.-CIVIL CASES. Tuesday, March 22. (Before his Honor Sir George A. Arney, Chief Justice.)

Daily Southern Cross, Volume XXVI, Issue 3926, 23 March 1870, Page 4

SUPREME CO URT. -CIVIL CASES. Tuesday, March 22. (Before his Honor Sir George A. Arney, Chief Justice.)

DIBPUTE AS TO AN AWARD. Cadell v. O'Keefke.— (Special Jury.)— Thia was an action on aii award made by Mn Samuel Cochrane, auctioneer, as between the parties ; the amount sought to be recovered being £631 2s. 7d. The defence was, that the matters referred were complicated questions arising out of mining and other ventures and transactions ; and that the defendant had had no notice so as to attend with his witnesses, &c, and no notice of the intention to make the award, Mn Whitaker and Mr. MacCormick were for the plaintiff, Francis Cadell ; and Mr. J. B. Russell and Mr. Rees for the defendant, Daniel Joseph O'Keeffe. The evidence for the defence was now resumed. Samuel Cochrane, who was formally called on Monday, was re-called. He was in the witness-box for thTee hours and twenty minutes, a great deal of the time being taken up by the re-examination, in which questions were put as to statements which the witness was said to have made at the first trial, and not now to have made, or to have now made for the first time. William Bishop, jun., clerk to the defendant, and William Fraser, E.M., were examined ; and this concluded the case for the def ndant. Mr. Russell summed up for the defendant. Counsel for the defendant had offered to make certain admissions, with a view of saving the time of the Court and jury ; but the plaintiff declined, lest the last word to the jury should be lost. The offer to admit was made because the defendant was content to alnde rather by equity than by law ; but, being forced to go through the whole of the details, the counsel for the defendant had, of course, taken advantage of every possible legal point. Some of those points had proved to be such that, in all probability, they would secure the verdict for the defendant, if it should happen that the findings of the jury were against him. It was submitted that, however remiss O'Keeffe might have been in this matter, the whole difficulty about which Cochrane— poor injured man — felt so strongly, had been been brought about by himself, owing to his own misconduct or negligence in proceedings "Rhicli ought to be understood by any business man. That Cnchrane had acted Altogether wrongly would appear, on reading a few passages from Russell "On Awards." That writer said, "The mode in which the reference is to be conducted depends entirely upon the arbitrator. The Courts will not review his discretion, providing he acts according to the principles of justice, and behaves fairly to each party. It lies entirely with the arbitrator to appoint the time and place of meeting, for proceed ing in the reference." " The discretionary power of the arbitrator," " though large, is not absolute;" "and his decision will be reviewed, and the award set aside, if it is made to appear that, in the course he has pursued, he haa acted, though with the best intention, unfairly to either party." If there had been parole submission only, the proceedings would be " governed by the same principles of law as if a deed had been drawn making the submission a rule of tlie Supreme Court.'' " Both 3ides must be heaid, and in the presence of each other." It might be said, on the other sid«, that the present was a case of a mercantile reference only- a mere making up of an account — and that, therefore, it was not subject to the prmoiplea now seated. But the words of Lord Langclale, Master of the Rolls, in the case of Harvey v. Shelton (9, Beavan, 463), disposed of su,ch a contention ; and the case was most singularly i. point. In that case, the arbitrator had sei t for Shelton to give explanation as to an item in an account ; and the other party was nob present at, nor informed of, the interview which took place. When the plaintiff took exception, it was replied that he should not object, for he had himself sent a letter to the arbitrator without giving notice of it to the defendant. Lord Langdale, after describing what the defendant had done as "most ind:s reet,"said, "I wholly deny the difference which is alleged to exist between mercantile arbitrations and legal arbitrations." His Lordship added, "The first piinciples of justice must be applied in every case. Except in a few cases, where exception is imavoidable, both parties must be heard, and each in the presence of the other." It was impossible that an authority more applicable to the present case could have been found —the only difference being that this case was 10,000 times more gross than the other The question at stake here was not one of hardship to one side or the other — it was a question as to the observance of the first principles of justice. Mr. Russell went through the 19 issues, and the evidence as bearing on each. He submitted that the jury must conclude that, equitably as well as legally, Cochrane did enter upon, continue, and conclude the reference, without notice to O'Keeffe ; that O'Keeffe never had the opportunity of knowing wh't proofs Cadell had rendered, or whether he had rendered any, until after, as Cochrane said, " Cadell's case had been closed j" and that Cadell never received notice of the intention to make the award, and never did, in any sense, acquiesce in that award. All tliatthe defendant now contended he was entitled to was to be placed in the same position as he was in before the unfortunate reference to Cochrane ; and then Cadell would have open fco him means of redress which would enable him to obtain whatever redress he was entitled to. Mr. Whitaker replied for the plaintiff. His friend Mr. Russell was so full of law, that it would flow most inappropriately. He would advise his friend, in future, to reserve his law for the Covirt in Banco, and, when beforo a jury, to shut his law-books, and try to deal with the facts of the case. Mr. Cochrane was moat unfortunately placed. He was kind enough to consent to try to setfle the disputes between Cadell and O'Keeffe ; there was no evidence that he had received, or was to receive, any payment for his trouble ; but there was no mistake that lie had been made everybody's kicking-post. O'Keeffe, counsel on each side, attorneys on each side — all had had a kick at Mr. Cochrane, whose fate should be a warning to gentlemen who found themselves yielding to solicitations to assume the position of arbitrator. The evidence of O'Keeffe ought really to be act aside by the jury as not worthy to be considered, so utterly opposed to truth was an affidavit sworn by him when he wanted to get his equitable plea on the record. It was all very well for counsel on the other side to speak of the affidavit as a mere matter of form ; but it was nothing of the kind in ita bearing upon O'Keeffe's credibility. Could the jury believe O'Keeffe in any way, when he swore that this reference had been entered upon, continued, and concluded without notice to him? From June to September, while thia reference was going on, had there been a single refusal on Cochranes part to hear any witness, or to receive any proofs, offered by either side ? Had he not constantly been urging O'Keeffe to Bend in proofs of different kinds ; until, wearied out, he gave notice that he would not wait longer. Clearly, Cochrane had done exaotly what it was intended he should do —he had gone through the accounts of tho parties, with all the vouohera, &0,, he could prooure ; and it was only an after-thought, when the award was known, that led to the assertion of no knowledge and no notioe of wtat bad be*n going on. The Chief Justice, in summing vro, said that the grounds upon which the defendant resitted the performance of the award, were stated in what was called an equitable plea. If the submission to arbitration had been in writing, and been made a rule of Court, instead of the present form of proceeding, the defendant would no doubt have applied to the Court to set the award aside. If the Court, upon such an application, was satisfied that, substantially, the issues as now stated — or even a very few of those issues — were true, the Court would feel it to be its _duty to set the award aside. Of coujae, mx arbitrate? must proceed upon the

broad |>rihcipltis of justice He (the Chief Jufettag) would not dwell upon so obvious a proposition, especially after the eloquent language in which it had been put before the jury in the authorities cited. It was the duty of an arbitrater to deal fairly between the parciea, not only by looking into what were called "proofs," and which were capable of this or of that interpretation ; but, as A general rule, it was the duty of an arbitrator — after looking through any accounts, correspondence, or other documents handed to him by the parties— to call the parties before him, and to hear what each had to say, by himself or his witnesses, not simply in enforcing his own claim, but in answering that of the other side. Unless there was lame clearly expressed discharge from ordinary rules, an arbitrator was bound so to perform hiB duties; and especially before the making of his award, it was his bounden duty to give notice that he was about to do so. That notice waa not to be given in the form of a threat, or In a casual way : there should be a definite announcement that the reference was to be closed, and of the day and the place of making the award, so that the parties, or either of them, might attend and oppose the arbitrator's proceeding to judgment. The issues now before the jur/ had been framed — some by the defendant, and others by the plaintiff— with a view of ascertaining whether Mr. Cochrane, arting as an arbitrator, had substantially performed his duties, so far as the terms of the reference made obligatory upon him, or released him from, the operation of the ordinary principles applying to arbitrators. The issues might be grouped into several classes — Those raising the question whether the defendant had had proper opportunities of being heard, and of proving his own case : others, whether the defendant had opportunities of hearing, commenting upon, and answering the case of his opponent *. others, -whether the defendant had notice of the different p oceedings : others, whether the defendant had notice of closing the rpference and of making the award, before the making thereof : and others, whether the defendant had acquiesced, not merely in the course of proceeding, but in the closing of the reference itself, until he had notice. If the defendant had so acquiesced, he was not entitled, upon equitable grounds, to come to the Court and to ask for a judgment in his favour. He (the Chief Justice) would not j attempt to read over the whole of the voluminous evidence— for ' his reason : It turned upon so many minute points, that it would be useless to attempt to bring the respective portions to bear on each of the 19 issues. If such an attempt was made, before the nineteenth issue waa reached, the jury would have forgotten what bore upon the sixth and the seventh, or others. The jury would not find much difficulty in answering the issues, provided they decided beforehand how they would construe those issues. The jury had been invited to set aside the whole of the defendant's evidence, on the ground that, because an affidavit sworn by him was (as alleged) almost wholly false, what the defendant had now sworn waa uuworthy of belief. The jury had heard not only the affidavit, but the defendant's evidence as to it, and the comments of counsel on each side. The jury would remember that the affidavit was not a writing by the defendant ; they would ask themselves whether the view taken by the defendant as to the meaning of "notice," &c, was not consistent with the common-sense, as well as with the lawyer's, view. And, upon the whole, the jury would consider whether, however heedless or careless the defendant might have been, it was not putting the thing too strongly, to impute perjury to the defendant, because of that affidavit. His Honor (who, in the course of his remarks, complimented Mr. Russell on the ability with which he had conducted the defendant's case) read and commented upon the evidence bearing on the issues as to notice of closing the reference and making the award ; and he asked the jury to bring their business knowledge to bear upon the interpretation of the evidence, with a view to answering the issues generally. The jury retired, and remained out of Court two hours and a quarter. They returned shortly before nine o'clock, and answered the issues aa follow :—: — 1. Did the parties, in June, 1869, submit certain matte s in dispute to the award of Cochrane ? They did. —2. Did they mutual'y promise to peiform and fulfil the award of Cochrane? They did. — 3. Did Cochrane undertake tho arbitration, and make an award that the defendant should pay to the plaintiff £531 2<s. 7d. ? c did. — 4. Did the defendant pay that sum or any sum ? He did not ? — 5. Did Cochrane, before making the award, appoint time and place for hearing the defendant and his witnesses ? He appointed place, but no time. — 6. Was the award made without Cochrane having examined witnesses and proofs on behalf of the defendan ; or (7) without opportunity being given to the defendant to produce witnesses or proofs ; or (8) without the defendant having opportunity of examining or observing upon the witnesses and proofs for the plaintiff, or (9) of knowing whether the plaintiff had tendered witnesses and proofs? It was not (in each case). — 10. Did Cochrane enter upon, continue, and conclude the arbitration, without notice to the defendant ? He did not — 11. Did Cochrane make the award without notice to the defendant ? He did. — 12. Did Cochrane, immediately on taking upon himself the burden of the reference, and before entering upon the same, give notice to the defendant, in June, that he wa3 prepared to hear the defendant's witnesses and receive his proofs? He did. — 13. Did Cochrano give such notice, at Auckland and Shortland, between July sfch and July 22nd ? He did — 14. Was Cochrane always ready and willing to hear and examine tha defendant, his witnesses, &c, of which the defendant had notice ? He was. — 15. Did Cochrane hear and examine all the witnesses, &c, tendered? He did. — 16. Did the defendant always know of the plaintiff having tendered witnesses, &c, and what witnesses, &c, had been examined by Coohrane? Yes. — 17. Was it by reason of the defendant's own wilful neglect that he had no opportunity of observing and examining the plaintiffs witnesses, &c. ? Yes, — 18. Did the defendant always have notice of the proceedings in the reference, and the mode of conducting it ; and did he in all ways acquiesce until he had notice of the making of the award ? Yea, with tho exception of the mode in which the proceedings were conducted. — 19. What sum, if any, is due by the defendant to the plaintiff ? £531 2s. 7d. The Court « as, at five minutes after nine o'clock, adjourned until ten o'clock this (Wednesday) forenoon, when Tanton v. Reid will be proceeded with.