On 18 May 1868, the Sydney Morning Herald reported a Court Case in the Supreme Court the previous day of Riordan and others Vs Fitzpatrick:
"This was an action by Charles Riordan, Thomas Liced, James Stanley, Daniel Ryan and James McMahon against Thomas Fitzpatrick for breach of contract and for work and labour, etc. The defendant pleaded, by way of cross action, that he had sustained certain losses by reason of a breach of contract by the plaintiffs; also a payment. The defendant was a contractor for a telegraph line. The plaintiffs were joint sub-contractors under the defendant for the clearing of part of that line lying between Bombala and Eden. The case was not concluded".
On 17 August the case was resumed and concluded:
"It was an action for breach of contract and for work and labour, etc., by certain sub-contractors for work on a telegraph line against the person contracting for that work with the Government. The plaintiffs were Charles Riordan, Thomas Liced, James Stanley, Daniel Ryan and James McMahon. The defendant was one Thomas Fitzpatrick.
The first count of the declaration was on an agreement between plaintiffs and the defendants under which the former contracted with the latter to clear a certain portion of the telegraph line between Bombala and Eden at £8 per mile for part of the distance and £7 per mile for the remainder. The work to be done, according to specification, to the inspector's satisfaction and at the rate of two miles and a half per week. Payment to be made to defendant every month, less 25 per cent kept in hand until the completion of the work.
It was alleged that the plaintiffs had completed so much of their agreement as entitled them to certain payments and that defendant had not only broken his part of it as to such payments but had prevented plaintiffs from completing, etc. Under the counts for work and labour, etc., the plaintiffs claimed £235 on the following work - namely, for clearing 18 miles at £8 per mile and 13 miles at £7 per mile. They gave credit to defendant for payment of £142 15s, 6d. in cash and rations, leaving a balance of £92 4s. 6d. in their (plaintiffs) favour. The plaintiffs' general damages were laid at £200.
The defendant pleaded first that the plaintiffs did not perform their work according to specification. Secondly, and by way of cross action, that the plaintiffs had broken their agreement by not completing the work according to specification and to the inspector's satisfaction; that plaintiffs had failed to complete the proper number of miles per week and that they had wholly refused so to do except at an advanced price. By reason of this, defendant had, he alleged, been put to great expense by having to employ other men to complete the work. Upon this account, defendant claimed £236 13s. For a third plea defendant alleged that he was never indebted, and for a fourth plea he alleged that he had paid and satisfied the plaintiffs' claim. The particulars of payment filed under this plea showed payment to the amount of £162 1s. 9d.
This was one of those cases in which there was a direct conflict of evidence. The defendant had contracted with the Government for the clearing of the telegraph line in question and the erection of the posts, etc., being bound to complete within a given time and to the satisfaction of the proper officer or officers of the Government. He sub-let portions of this work to others and among the rest to the plaintiffs. Among these plaintiffs, Riordan was the managing man but they contracted jointly as "mates" for the performance of the work in question and were bound to do it themselves or with the assistance of such men as they might employ.
The plaintiffs' case was that, although they had been unable at first to complete the stipulated extent of clearing per week, this arose from the heavy nature of the country and they worked faster when they got into country less closely timbered. One of their men had been killed and it was difficult to obtain others for work so dangerous in that part of the country. The defendant was, they averred, quite cognisant of these facts and there had been no disputes upon that account. They would have engaged other men if defendant had paid them, and the men could be got. The work which remained to be done when plaintiffs were stopped, was much easier. All the difficulty had arisen, it was alleged, out of the defendant's inability or unwillingness to pay the full amount due to these plaintiffs. He had delayed payment for some time at the end of the second month. At the end of the third month he paid them only in part and next month he left them wholly unpaid, requiring further time until he could go to Sydney for money. The men insisted upon being paid before going on further with their work.
Defendant went to Sydney without paying them anything, and the men refused to work. They were subsequently, however, obliged to do so in order to get rations with which they were supplied by defendant, or persons employed by him for that purpose and charged for every month as their accounts were settled. When defendant returned, the plaintiffs again hunted him up and demanded their money. He first asked them all to drink and then introduced them to a constable who gave them summonses for breach of the Masters and Servants' Act which had been obtained against them from Mr. C. H. Baddeley, a magistrate of Pambula. Before this gentleman and two other justices — Mr. G. P. Keon and John Lloyd (the former being the Police Magistrate) - the plaintiffs were brought.
The defendant had retained the only legal assistance (that of two attorneys) obtainable at the place and these magistrates - evidently ignorant of the law as applicable to such a case - were, of course, rather supported in their error than set right. Although the contract was before them, they dealt with the plaintiffs as servants of the defendant and ordered a deduction of over £40 from the money, which defendant admitted to be due to these men, in order to compensate defendant for losses alleged to have been occasioned by their default (by the introduction of labour from Sydney, etc. ).
These magistrates also took it upon themselves to cancel the contract (treating it as if it were an ordinary agreement for service) subject only to the right of the plaintiffs to be paid the 26 per cent which defendant had retained in his hands in virtue of such contract The defendant's case was that all his difficulties had been occasioned by the delays and bad work of the plaintiffs. The work of clearing had been repeatedly found at fault with by the inspector and the delay had been such that he had not only been hindered in getting his own money from the Government and put to expense, but had been in great peril of having the contract taken wholly out of his hands. The inspector had been continually finding fault with the work and, in most cases, the defendant had had to send his own men to remove the trees or scrub which the inspector required to be cut away.
He had informed plaintiffs of the difficulties in which he had been placed through their default and, of the necessity which had been thus created, that he should go to Sydney and endeavour to obtain further time. They refused, however, to take any steps by the employment of other labour to expedite the work or even to go on with it any further unless they got £3 per mile more. He was compelled, therefore, to bring up men from Sydney.
It was proved by the inspector of the line that he had continually found fault with the work and with the rate at which it was progressing; but it appeared from the evidence of the same gentleman that the plaintiffs had expressed their willingness to put more men on if they could get them, and if the plaintiff, by paying what was due, would afford them the means of employing such men. The plaintiffs further averred as to the defects pointed out from time to time by the inspector, that it was to remedy all such defects the 25 per cent had been kept back, and that they had always paid, or been ready to pay for, the labour for that purpose whenever such labour was not done by one of themselves. The plaintiffs further claimed damages for premature loss of their employment, and for the time they had been kept unemployed by reason of defendant's proceedings.
Counsel on both sides having addressed the jury, and his HONOR having summed up, the jury found a verdict for the plaintiffs: damages £100 4s. 6d. , namely, £92 4s. 6d. for the balance due and £8 for the time which plaintiffs had lost by the defendant's proceedings".