ARBITRATION RIGHT

Taranaki Daily News, 9 August 1930, Page 15

ARBITRATION RIGHT

SHAREMILKER’S AGREEMENTS. COURT RESERVES DECISION. The effect of an arbitration clause inserted in a sharemilking agreement for ; the purpose of settling disputes was the i cause oi a discussion in the Magistrate’s Court at Opunake yesterday, the Magistrate, Mr. R. W. Tate, reserving his decision. The plaintiffs, Wilson and Richards, sharemilkers, were represented by Mr. P. O’Dea and for the defendant, i Hugh McCann, Mr. A. A. Bennett appeared. The defendant applied to have the matters at issue, proportions of milk cheques, a claim for work done and a claim for grazing, referred to arbitration, which was mentioned in clause 40 of the sharemilking agreement. Defendant on his part had a elaim against the sharemilkers for breaches of agreement. There w y as a counter-claim not yet filed. The sharemilking agreement, said Mr. Bennett, contained a clause in which it was agreed to refer disputes to arbitra-. tion. If the claim and counter-claim had been merely concerned with some liquid- ’ ated sum, easily accessible, defendant’s claim to arbitration would be weakened. Bnt one portion only, that relating to milk cheques, was easily computed and consequently, would not be in dispute. All the other items, however, were obviously unascertained items pertaining to sharemilking generally. Questions of non-performance of work were much more easily settled by arbitration. It was obvious from the contract, he continued, that it had been definitely agreed’ that matters at issue should be referred to arbitration. He submitted that the matter was one for the discretion of the Court. Plaintiffs had by express provisioh in tne agreement consented to arbitration. In considering the application it was necessary to remember than an arbitration, method had been expressly agreed on i by) the parties; secondly, that plaintiffs bad consented to arbitration and should not now cancel this consent; thirdly, that arbitration was the more convenient method for. determining disputed matters;' fourthly, that plaintiffs should not be permitted to go to the Court, affd fie doubted if they had the jurisdiction to compel the Court to: hear the action contrary to the conditions of clause 40 of the contract. He submitted that the appointment of suitable persons as arbitrators with special experience in such matters would tend towards proper investigation of the matters at issue and that an agreement to refer to arbitration would not be set aside even in equity. There was not only a prima facie duty to act on the agreement but also before refusing to act on an agreement there should be cast on the objector an onus of showing why the matter should not be referred to arbitration, It was an important point which had been raised for the first time in a sharemilking dispute, said Mr. His submission was that the section in the contract regarding arbitration did not oust the plaintiffs’ right to go _to the Court. He quoted the Arbitration Act to show that only the Supreme Court could stay such an action and that it was not possible even for that Court to stay an action commenced in the Magistrate’s Court. After quoting a number of cases he submitted that the Supreme Court even would not stay the action. His clients, he pointed out, did not want to go to arbiration as they felt that such a mode was detrimental to the interests of sharemilkers. In reply Mr. Bennett said he did not deny the right of the Court to hear the case, but he asked the Magistrate to exercise his discretionary power in referring the cn.se to arbitrators m terms of the agreement. _ t . The Magistrate reserved his decision.