BREACH OF THE NEW SOUTH WALES CONSTITUTION ACT. PENALTY OF £500 RECOVERED.

Otago Witness, Issue 1832, 31 December 1886, Page 20

BREACH OF THE NEW SOUTH WALES CONSTITUTION ACT. PENALTY OF £500 RECOVERED.

An action was commenced in the Supreme Court, New South Wales, on December 16, by David Proudfoot against William Courett Proctor, M.L.A., for the recovery of £500, the statutory penalty to which it was alleged the defendant was liable for having sat and voted in Parliament while he was a contractor under the Government for the construction of section No. 3of the lUawarra railway. Mr Pitcher, in opening the case for the plaintiff,' stated that the defendant had sat and voted in the Assembly during the present year. Two persons (Logau and Proudfoot) had the contract for the construction of the third section of the lUawarra railway, and they subsequently admitted several others into partnership. Financial difliculties arose, and Logan, being in want of money , assigned the contract to Proctor, on condition that he should become guarantee to. 1 the bank for advances. While holding this security Proctor not only received large sums of money out of the contract, but used his influence with the Government to have advances made out of an extension to which Logan was not entitled till the contract was finished. The defence entered was that Proctor was not the contractor, but simply advanced money to the contractors. A large number of witnesses were examined for the plaintiff, who was also examined, and gave the following evidence :— David Proudfoot, the plaintiff, said he was one of the original contractors in , No. 3 section of the Illawarra railway. Afterwards his estate was sequestrated in New Zealand and he lost his interest in the undertaking. Subsequently he represented Some Melbourne speculators in the transaction. Afterwards there was an equity suit against himself (nominally) and against Logan by the Melbourne people. An order was made for all moneys received on account of the contract to be paid into court, He said to the defendant that during the equity suit the books of the firm had been brought into court, and that from those books he saw that £800 had been paid to

him (the defendant) for a guarantee. The defendant replied, " Yes, that is a fact." He said to the defendant that it appeared to him that where a person had received so much money for a guarantee there must be something behind it. The defendant said he had an assignment of the contract, but not in his name, but in trust for him. The defendant declined to tell him the name of the trustee. He told defendant he had come to see him, as assignee of the contract, in order to see if there would be any difficulty in the way of his getting back his share in the contract. Defendant said he did not think there would, he not being satisfied with the present management. Defendant asked him what he thought the ballasting of the line would cost. He replied that the ballasting was one of the worst paying items in the contract — would take more than the schedule price to do the work. Defendant replied that he had a report from the works stating that the ballasting could be done for 2s 10£ d, or about one-haif of the schedule price. He said it was impossible for it to be done. Defendant said he had a report showing what the works would cost, and that there would be a profit of £20,000, and he was quite Satisfied with the state of affairs. Defendant said he would send for Logan and see what could be done, and that he would like him (plaintiff) to come into the contract. Some time afterwards, after he had commenced this action, Parkinson, M'Laughlin, Hume, and Procter were with him at an interview. The defendant offered him £1000 to take the management of the works, use his best endeavours to get a settlement of the action Parkinson v. Logan, buy Parkinson out for £7000, and have half of a three-quarter share with Logan and abandon this action. He told defendant he would have nothing to do with such an offer until such time as he had completely settled with the Bank of New Zealand. Defendant said he would put it in such a way as would not hamper him (plaintiff) in his action with the bank. Defendant, suggested that he should pay Parkinson with his own bills for £5000, in addition to £2000 cash, and said he might possibly get Mason Brothers' endorsement of th« bills. Afterwards the defendant increased his offer to him to £2000, if he would allow him to go and settle with Parkinson — to be paid by Logan's bills endorsed by the defendant. On November 15 or 17 he asked defendant if he intended to carry out his proposals. Defendant said he was ready, but could not get hold of Logan. He replied, " Surely you, having an assignment of the contract, can get hold of Logan ? " Defendant then showed him the assignment, and he noticed that a pen had been drawn through Logan's name. Mitchell's name was n»b then erased, and the seal was there. He asked defendant why he had drawn the pen through Logan's name. Defendant said, " I did it shortly after the interview I had with Mr M'Laughlin." Mr M'Laughlin drew his attention to the fact that he had compromised his position as a member of Parliament by being interested in a public works contract. He (plaintiff) said to defendant, "The fact of your drawing the peu through Logan's name does not make the assignment invalid so far as you are concerned." Defendant replied, "Itis no assignment anyway, because my name is not to it." He replied, " Do you think you ar« talking to a child ? There is such a thing as having a counterpart signed by yourself." Defendant said " If you don't gn on with your action against me, I will make you do so." At; his interview with the defendant in June defendant told him that he had used his influence as a member of Parliament in order to get £10,000 retention money from the Government, so as to pay Gall and Plummer £8500 — the amount of a verdict by consent. He asked defendant how he had obtained that retention money in the face of the iudge's order. Defendant replied that he had been able to do that by using his influence as a member of Parliament, and he could do a great deal more.

Marcus Hume in his evidence said that the sum of £2108, representing commission paid to the defendant on account of the guarantee for the £13,000 and £4000, was paid to the defendant as follows :— ln cheques, £300, £200, £150, £300, £200, £200, and £200; by promissory notes, £150 (which witness believed had not been paid), £203 (paid to the defendant for Mr Gihbes), and £205 (paid to the defendant for Dr Bestic). The defendant, W. C. Proctor, said that he received only £150 for negotiating the £13,000 loan. He never received any commission for getting back the retention money. He never used his influence as a member of Parliament in connection with this matter. He applied in the ordinary way as he would have done for anyone else who engaged him. So far from using his influence as a member of Parliament, Logan had since then wanted him to get another advance of the retention money, and he had refused to go about it. As to his influence with the Government, he had actually never voted with the present Ministry on any critical vote, but always against them on any leading question. Defendant then gave evidence as to the " differences " between Proudfoot and Logan, and the negotiations for Logan's buying out Parkinson. Eventually Logan bought out Parkinson by paying him £5000 cash. After the commencement of this action the plaintiff said he would " settle " it if he (defendant) would endorse two bills for £2000 each. He at once declined to "settle" this case on any terms whatever. But he told the plaintiff to go on with it. If he were wrong in holding those securities, he was quite willing to pay the penalty, and he knew that Proudfoot could not release him from it. He told Proudfoot that if he did not go on with the action he intended to make him do so. He wanted the case gone on with and. the whole thing published. He did not know he had done anything wrong. After a number of other witnesses had been heard and the jury tad been addressed by counsel, Mr Justice Faucet summed up. After an absence of about five minutes, The Jury returned a verdict for the plaintiff for the full amount claimed.

His Honor ordered the proceedings to be stayed, pending an appeal to the Full Court.

Commenting on the case the Sydney Daily Telegraph, from whose report of the trial we have made the above extracts, says : — "There would have been nothing wrong in anything Proctor did, as his Honor pointed out, if he had not been a member of Parliament. Members of Parliament overrun the departments, and some of them are experts in the dirty business of • greasing the w heels.' But the Parliamentary agents, as a rule, keep themselves out of contracts. They are prepared to sell their influence to anybody who is not a contractor. Entanglement with a contractor exposes the member to the danger of losing the magic letters which represent the 'influence' which attaches to the most commonplace persons who own them. Mr Proctor was one of the few members who ventured to run the risk of detection, and we suppose it may be taken for granted that no constituency in New South Wales will give him a chance of taking another risk of the kind. How far Proctor's influence reached in the case which has just occupied the Supreme

Court cannot be ascertained. Proctor emphasises the fact that he is a member of the Opposition and has voted with the Opposition in every critical division, but the people do uot need to have it pointed out to them that members of the Opposition are not destitute of 'influence' when transacting the business of their 'clients in the public departments. The ' influence ' attaches to Parliamentary membership, and is only Blightly affected by the side of the House upon which a member may happen to sit."