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AICKIN v. BEALEY., Lyttelton Times, Volume XXIV, Issue 1431, 14 July 1865
AICKIN v. BEALEY.
This case came on for hearing on June 15, at the Supreme Court, before his Honor Mr. Justice Gresson, and a Special Jury, comprising the following gentlemen :— Messrs. A. Knight foreman, E. D. Byrne, T M. Hassul, tt, Browne, M. Sprot, F. H Tipping, T. H. Potts, E. C. Hilton, J. Field, M. B. Bishop, 11. Goulstone, and J. Millton. Mr. Duncan and Mr. J. S. Williams appeared for the plaintiff, ami Mr. Garrick for the defendant. The following were the issues in their original form ; the .first was struck out by consent, and the words " without reasonable cause" were also struck out of the third issue. 1. Was the agreement in the declaration mentioned, entered into by Henry Selfe Selfe, being thereunto authorised by instructions under the hand of the defendant as Superintendent of the said province, issued by the advice of the Executive Council thereof. 2. Did the plaintiff, after the said contract, and before the alleged breach, .misconduct himself by' wilfully disobeying the reasonable orders of the Provincial Government of the Province Of Canterbury, given to the plaintiff in the said service by the Provincial Secretary of the said province, representing the Provincial Government in that behalf. 3. Did the defendant wrongfully, and without reasonable excuse dismiss the plaintiff from the office of Provincial Engineer, as in the declaration mentioned. 4. Is the plaintiff entitled to recover from the defendant any and what damages in respect of such wrongful dismissal. Mr. Williams opened the case for the plaintiff, explaining that this was a case in which Mr. G. Aikin was the plaintiff and his Honor the Superintendent Of Canterbury, as representing the province, was the defendant. Mr. Williams read the agreement between the parties, which was to the effect that the plaintiff was engaged as engineer to the Provincial Government at a salary of £850 per annum, with an allowance for travelling expenses. The agreement was to be terminated by three months' notice on either side. It was alleged in the declaration that the plaintiff had entered upon the duties of his office, from which he had been wrongfully dismissed. As a compensation for this the plaintiff claimed £5000 as damages. Mr. Williams called George Aickin, who stated : I am plaintiff in this action. I was formerly an engineer in England. I left on April 7,1864. I had been in practice as an engineer for some time previously—about twenty years. His Honor : I believe there is no want of skill imputed to the plaintiff. Mr Garrick: None at all, your Honor; the oniy imputation is that he was not a civil engineer. (Laughter.)
Examination continued : I entered into the agreement set forth in the declaration. The agreement produced is the one I signed. In pursuance of that agreement, I came to New Zealand, arriving in July, 1864. On my arrival, I reported myself at the Public Works Office. I saw Mr. Turner, the chief clerk. I afterwards saw the Secretary for Public Works. I asked him for a memorandum, stating the nature of my duties. I received some official instructions: very few of the works mentioned in the memorandum came under my notice. I examined and reported upon the Timaru Roadstead ; I also reported upon the Ly ttelton Harbour Works. Both Mr. Hall and the Provincial Secretary gave me instructions with regard to some architectural works. I made some plans, but I did not consider that such work came within the sphere of my duties. I made a design for alterations to the Lunatic Asylum, for the Police Barracks, and for the Lock-up at Christchurch. I had some communication with the Provincial Secretary with reference to the latter work. I received the letter produced from the Provincial Secretary. (Letter read.) I also received the letter produced from Mr. Hall, (Letter, with reference to the Lock-up at Christchurch, put in and read; it was dated Nov. 12, 1864.) I received the letter produced from the Provincial Secretary; it is dated Nov. 25,1864. In reply, I addressed the letter produced to the Secretary for Public Works, with reference to the Lockup. The letter was returned to me, with an endorsement that the Provincial Secretary desired to see the plans. Afterwards, I received from the Provincial Secretary the letter produced; it is dated Nov. 30. It desired me to forward at once the plans and specifications which I had prepared for the Lock-up. On Dec. 1,1 sent a letter to the Provincial Secretary, to the effect that whilst I was anxious to afford the Government every assistance in my power, I must decline to allow my plans to be sent in to the Government, either for approval or otherwise. The custom was not in force in England ; and in the course of a long practice, I had never known such a course to be pursued. I thought it due to the dignity of my profession to decline to comply with the requirements of the Government that any official documents should be sent in to the Government for approval or otherwise. 1 was willing to do so as a matter of courtesy, but I would not concede it as a right. In reply to this communication, I received a letter from the Provincial Secretary, dated Dec. 7, dismissing me from my office, and informing me that my salary would cease from that date. I left the offices of the Government in consequence. The letter assigned as a reason for my dismissal that I had refused to obey the distinct orders of the Government. [Letter read.] I demanded an interview with the Executive. I believe that I had some communications with Mr. Hall on the subject of my dismissal.
Mr. Duncan: Do you, as a professional man, consider that the architectural works in question came within the sphere of your duties ? __ Mr. Garrick objected to the question. Mr. Aickin could have no experience on the matter ; he had only recently been appointed to the office. It was virtually calling upoh an inexperienced person to give evidence as an expert. Examination continued : I had an understanding with Mr. Selfe as to the nature of my duties. A long discussion took place whether Mr. Duncan should be allowed to ask the witness whether he considered that the execution of the architectural works formed part of the contract made between him and Mr. Selfe. His Honor remarked that the terms of the contract were very ambiguous : the office of Provincial Engineer of Canterbury was not by any means clearly defined. The question was not put. Examination continued: I left the office the next day after the reception of the letter of dismissal. My salary was paid up to that date. I have received altogether something like £500. My reasons for not sending in the plans, &c, were— Mr. Garrick objected to the witness answering that question. The reasons were clearly stated in his letter addressed to the Government. Objection allowed. < Examination continued: I had some communications with Mr. Hall on the subject of the architectural works. I strongly objected to Mr. Hall's altering my plans. This was previous to my dismissal. I received no communication from Mr. Hall with reference to architectural work forming any part of my duties. A discussion ensued as to the terms ot the contract made by Mr. Selfe with Mr. Aickin; and as to the question whether the former had given the plaintiff a definite description of the nature of the duties of the office of Provincial Engineer. Mr. Garrick remarked that he was placed m a very difficult position. The ex parte statement of the plaintiff was the only evidence before the Court, and he had no opportunity of testing the correctness of that statement by means of the examination of Mr. Selfe. His Honor remarked that it appeared to him that the question was, whether the defendant would be bound by the acts of Mr. Selfe. Mr. Duncan considered that he would be bound by the acts of Mr. Selfe, but that he would have his remedy against the latter gentleman as agent. Examination continued: Before the contract was signed I had a conversation with Mr. Selfe, with reference to my duties as Provincial Engineer. Mr. Selfe stated, in the presence of myself and Mr. Stephenson,
that architectural work formed no portion of the duties of the office of the Provincial Engineer of Canterbury. Mr. Selfe stated that the chief duties were bridge-making and road-making; he said that I should have nothing to do with the harbour-works, as a special engineer would be sent out for the purpose. He gave me no other general ideas of the duties of the office. (A copy of the instructions to Mr. Selfe, dated October 14th, with reference to the appointment of a Pro vincial Engineer was put in and read. The instructions specified that all such duties as are usually discharged by a Civil Engineer, should be undertaken by the person appointed.) Neither Mr. Bray nor Mr. M'Candlish were present on the occasion of my conversation with Mr. Selfe: myself and Mr. G. R. Stephenson only were present. I have received no other appointment since I left the Government employment; I have received very slight employment as an engineer since doing so. I have looked for employment, and have opened an office. Cross-examined : I am not awaiting the result of this action previously to entering into partnership with Mr. Wright. The partnership does not depend upon the result of the action; but more will probably be known about the partnership as soon as the trial is decided. I have not postponed the consideration of the partnership until the termination of this action. I have been looking after some of Mr. Wright's works, but not as a paid servant ; I am acting as an amateur in so doing. lam not in partnership with Mr. Wright. I suppose that I shall be remunerated for the work ; it is quite uncertain whether I shall so. It is just as likely that I shall be paid by Mr. Wright as that I should have received remuneration from the Provincial Government had my contract with them been carried out. I undertook Mr. Wright's work with the expectation of remuneration, but the amount is problematical. I have not been able to find work because the Government have all the engineer's work in their hands. I recollect writing the note to the Provincial Secretary to know why he wanted to see my plans. I noted the minute on the letter on the same day. I cannot recollect if I held any communication with the Government on the subject of the plans between the dates of the letters of the 27th and the 30th Nov. I believe that my letter declining to send the plans was the only communication I had with the heads of the department. I prepared the plans for the Lunatic Asylum, and. for the lock-up, at Waimate and at Oxford. I decidedly consider that the preparation of these plans was architectural work. I consider myself fully comdetent to discharge such duties. I attained that competency through practice, but I cannot say that I have done so through study. Study would be required to obtain a competency sufficient to enable a person to prepare the plans for such works as those in question. Mr. Duncan objected to this line of crossexamination. His Honor, subject to the explanations on the part of Mr. Garrick, should agree with Duncan.
Mr. Garriek eontended that it was his intention to test the credibility and the competency of the witness by his own statements, Cross-examination continued: I was in partnership for twelve years with a gentleman, I doing the engineering portion of the business, and he the architectural portion. In this way I derived my architectural knowledge. Civil engineering comprises such a knowledge of the principles of architecture as would enable a person to undertake such works as I was employed by the Government to do. I should not have attempted to carry out such works if I had not had the benefit of my connection with my partner. I was never at any time an architectural draftsman. Since looking at my letter-book, I believe that no communication passed between myself and the Government between Nov. 30 and Dec. 1. The alterations at the Kaiapoi Court-house were made under my direction. I always submitted all preliminary plans to the heads of the department. The Provincial Secretary was then acting in the stead of the Secretary for Public Works. I did not forward the plans of the Lock-up &c, to the Government. I see by my letterbook that I ;issued an advertisement calling for tenders for the execution of the works. I forwarded the letter with reference to the advertisement, without at the same time forwarding the plans. Mr. Hall was at that time absent in Auckland: The plans and specifications for the works had been got out at that time. I believe that the signature attached to the document now put into my hand is that of Mr. Doyne. The document contains general specifications and conditions of certain works to be executed for the Government, but it does not contain either detailed plans or detailed specifications. I believe that the regulations in the Gaztlte, produced, are those which controlled the duties of my office. I have acted on them, because they have been acted upon by my predecessors. I do not recollect having on any occasion refused to be bound by them. A discussion ensued as to whether the regulations of the Government Department should be put in. Mr. Duncan objected to the document containingjhem being put in,
His Honor ruled that the regulations might be put in, and they were read accordingly. Cross-examination continued : I most distinctly assert that a special plan was prepared for the Christchurch lock-up ; I saw it done. I have had frequent differences of opinion with the Secretary for Public Works on the question of submitting my plans to him. I strongly objected to do so, and he persisted that I should ; this is the whole secret of the affair. I never refused to get out any plans or specifications previously to my dismissal; I most certainly did so subsequently. I consulted my legal adviser previous to my dismissal. Ke-examined : I have read the regulations in the Gazette. There is a memorandum in the office stating' that as the office of Secretary for Public Works had been established, all communications from the Engineer's Department should be made to that office, and not to the office of the Provincial Secretary. That memorandum was in force prior to my arrival.
This was the case for the plaintiff. Edward Dobson: I am engineer for the railway ; I am a civil engineer by profession. I know nothing either of the Christchurch lock-up, or of those of Oxford or Waimate. It would require some knowledge on the part of an architect to construct similar works. All works not involving decorative architecture would fall within the profession and scope of a civil engineer. I have been very busy since the year 1832, when I was articled. I held the office of Provincial Engineer for nine years. My duties were to take charge of the whole of the public works of the province, excepting those of a decorative character. The construction of watch-houses aud lock-ups, lunatic asylums, &c, would fall within the sphere of my duties. I believe that I built the first lockup in the province. There is nothing of a decorative character about such buildings. rHis Honor : I am afraid, Mr. Garrick, that we have not yet come to that point in Canterbury, at least with respect to our gaols. Examination continued: I always submitted my plans and specifications to the Executive. The decorative works were entrusted to Messrs. Mountfort and Luck. It was the rule of the office that all plans, &c, should be submitted to the Executive ; there is nothing derogatory to the profession in doing so. I never issued advertisements for tenders for work without consulting the Executive; I should consider it very improper to do so. In my time all advertisements passed through the hands of the Executive, who had previously inspected and approved of them. I made the alterations to the Lyttelton Gaol; the public buildings at Akaroa and the Court-house at Kaiapoi, &c, were executed under my supervision. Cross-examined : Many public buildings, such ns gaols, asylums, fortifications, &c, fall under the business of a civil engineer : decorative architecture, such as churches, domestic residences, &c, do not. I never refused to do any architectural work, unless during my last year of office. I was then only Consulting Engineer, and not acting as a Provincial Engineer. I nominally held the latter office : Mr. Wylde was appointed to assist me. I refused to undertake architectural work, because I had an Assistant Engineer. I know the plaintiff : I cannot say if he had an Assistant Engineer. I resigned in June, 1863 ; Mr. Wylde was then Assistant Engineer. I
do not know when he resinned, During the last year of my term, I charged the Governmenta commission on architectural work, I wag only Consulting Engineer. I declined to do work unless remunerated for it. I made the charge because such work did not come within my province. Any' one who takes charge of the duties of Provincial Engineer, oug lit, in my opinion, to undertake the execution of such an e'liecturiil work I h vj mentioned. Re-examined : The performance of such works as I have alluded to ought to have been umlenaken ly the Provincial Engi.ieer. Snch works are u->u ly put in the h ml* of civil engineers, and not into those of architects. My salary began at £.W), and was gradually increased to £600. My salary an Provincial Engineer ceased when I became Railway Engineer ; it was passed in the Government books as the salary of the Hail way Engineer, and not as that of Provincial Engineer. £100 per annum was allowed me for travelling expanses. The Hon. J. Hall : I am Secretary for Public Works in Canterbury, I was so at the time of the plaintiff'* appointment. The custom was, that the plans, &c, were prepared from tlie instructions of the Government in the Engineer's office. They were generally sent up for theapprovalof the Executive. The plans always came before me or before the Executive previously to their being executed. This was be general rule, but it depended upon the importance of the works. I had frequent difficulties with Mr. Aickin in this respect. I insisted upon his submitting his plans to me. I remember one case in particular— that of the proposed 10-.k-up at Oxford. I know Mr, Doyne; he has the building of the Hakaia Bridge, and the planning of the Great Southern Railway. The document in my hands is a specification of the designs of the Rakaia Bridge ; it is fully detailed, even to the smallest minutia. The other document contains detailed accounts of the conditions outside the works. The third document contains the specifications of the railway to the Rakaia. It contains both tiie general and detailed specifications ; in fact, those on which the work will be executed. In my absence, the Provincial .Secretary takes charge of my department, and vice versa. This was the case for the defendant. The Council, on both sides having addressed the jury. His Honor summed up the evidence, dwelling upon the more salient features of the case, and explaining the state of the law with reference to the relations of masters and servants. He remarked that the Act under which the action had been brought, was a badiy drawn and ill-constructed one. He expressed his gratification that the Government had, in the exercise of a wise discretion, waived their right to rely upon the many technical difficulties which might easily have arisen from the faulty wordingof !he Act, and had preferred that the case should be tried upon I its own merits. Thanks to this prudent line of conduct, the question had in reality narrowed itself into a very small compass. He must direct them that the plaintiff had been guilty of an act of disobedience to an order, and it was for them to decide whether the order given to him was a reasonable one. Should they decide in favour of the plaintiff, the damages awarded to him need not be the whole amount which would heve been due to him if the whole term of his engagement had been served, but might be diminished by any sum which he might be supposed to have earned during the interim. His Honor read the evidence, commenting upon it as he proceeded. The jury, after retiring for about threequarters of an hour, returned into Court, and stated that there appeared to be no probability of their agreeing as to their verdict. His Honor remarked that he regretted to hear this : he hoped that they would shortly agree, otherwise he had no alternative but to order them to be locked up. The jury returned into Court, and stated that they were agreed as to their verdict. The foreman stated that they found that the plaintiff had been guilty of wilful disobedience of a reasonable order, and that he had been wrongfully dismissed ; but that he was entitled to £700 damages as a compensation. His Honor remarked that he could not accept the verdict. It was against the evidence, and was evidently a conclusion of their own at which they had arrived. They must retire again, and reconsider their verdict. The jury re-entered the Court at 8.20 p.m. The foreman stated that they were unanimous in their verdict. They were of opinion that the plaintiff received a reasonable order, which he had no intention of wilfully disobeying, and consequently had not misconducted himself. His Honor remarked that the verdict was against his ruling, and would, he feared, lead to great litigation, but there was no remedy. The jury had better fix the amount of damages, so as to avoid a new trial.
The foreman then read the remaining portion of the verdict, which was to the effect that the plaintiff was wrongfully dismissed, and was entitled to £700 damages. His Honor observed that the verdict was neither a special one nor one founded upon the issues. They must find either in the affimative or in the negative upon the issues. He had directed them to find that the plaintiff: had been guilty of wilful disobedience of an order, leaving it to the jury to decide whether the order was a reasonable one. He had no wish to coerce them; it was their duty to deduce conclusions from the evidence laid before them, but they must take the law from him. They had better reconsider their finding. Did they find " Yes " or "No " upon the second issue ? The jury finally found in the affirmative upon the second and third issues, and on the last issue they found that the plaintiff was entitled to £700 damages. His Honor remarked that he must accept the verdict, but it was totally unintelligible to him. It was just asserting that black was white, and white black. It was the strangest verdict he had ever heard in all his experience, and he hoped there would not be many more such. The case, which occupied the whole day, apparently excited considerable interest, the Court being crowded. Several members of the Government and of the Provincial Council were present. The Court adjourned sine die.
AICKIN v. BEALEY., Lyttelton Times, Volume XXIV, Issue 1431, 14 July 1865
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