ALLEGED SLANDER.

Auckland Star, Volume XX, Issue 220, 16 September 1889, Page 4

ALLEGED SLANDER.

BROOKFIELD V. YATES.

A somewhat unusual case came up for hearing bhis morning ab bhe Supreme Courb before Mr Justice Conolly. The plaintiffs were Frederick Morris Preston Brookfield and Frederick William Brookfield (solicitors) and the defendant Captain Michael Yates, Mayor of Onehunga, the claim being for £200 damages for alleged slander. Mr Theo. Cooper appeared for the plaintiffs and Mr Hugh Campbell for the defence.

Mr Cooper said that this was an action by tho firm of Messrs Broofcfield and Son against Michael i'abes, Mayor of Onehunga. The statement of claim showed that at a meeting of tho Onehunga Borough Council, held on tho 16th of July, 1889, it was proposed thab a legal opinion should bo obtained from Messrs Brookfield and Son. It was alleged that defendant said : "I consider bhis motion a personal insult. I will not go to Messrs Brookfield and Son ; they have been tho ruin of tho town, and I have no confidonce in them." A socond count was that defendant said, " I should like bo know who is going bo Brookfield and Son for an opinion. I will not, and I consider ib an insult bo be asked to do so. I have no confidencein them, and am of opinion that they are trying to ruin the town. If anyone wants to go bo Brookfield and Son they can do so; I will not." The statement of defence was a deuial that the words were used maliciously or in connection with the plaintiffs as barristers and solicitors; bhab the. words were nob used wibh bho moaning affixed to them by plaint!-''; also a denial that plaintiffs had sustained any damages in bheir professional business, and thab defendanb was speaking as Mayor of bhe Borough of Onehunga and in the interests ot that body. Mr Cooper said thab bho action, although claiming damages, was nob taken for the purpose of obtaining tho same, but merely to vindicate the plaintiffs' character, and he. was instructed to state that even now proceedings would be stayed if bhe defendant would apologise to plaintiffs, and pay tho costs. The defendant set up a pica of privilege, but not of justification. Ho did not know whab his friend would now say to his suggestion to stay proceedings.

Mr Campbell said : " I have nothing to say."

Mr Cooper: " Then the case must pro ceed, and I will call evidence."

Mr Campboll said that beforo evidence was cailed he must usk upon which count his friend proposed to proceed. In slander the words must be precisely sot out. The plaintiffs must therefore elect upon which sot of words they intended to proceed. There could be no libel without cortaintv.

His Honor ruled that Mr Cooper must state on which count he would proceed.

Mr Cooper said ho would go upon tho second count, lie said that if tho words meant anything thoy meant that tho plaintiffs wore either incompetent or corrupt, and being so, must be malicious, and would exclude the defence of privilege. Mr Campbell argued that as the plaintiffs were not at tho time solicitors to tho borough, there was no possibility of their ruining the borough, and consequently thore was no legal cause of action, as no special damages were alleged. His Honor decided not to stop tho case, but noted the point raised.

Goorge Brabant, reporter of tho Manukau "Gazette," deposed that'bo was present at a meeting of the Borough Council of Onehunga held on July 16th, 1889. Witness was not a ratepayer in the borough. Councillor Austin proposed that an opinion should be obtained from Messrs Brookfield and Son. The defendant presided as Mayor. Councillor Koehan proposed as an amendment, " That the Committee should get the opinion from whoever they choose." In speaking-to tho amendment defendant said, " Who's going to ask Brookfield and Son for this opinion ? lam not. I think it a groat insult to bo asked to do so. I have no confidence in them, and my idea is that Brookfield and Son are doing their best to ruin the town. I think I could get the opinion without the aid of a lawyer. If anyone wants to c;o to Brookllold and Son thoy can do so ; 1 will not." Witness read from his shorthand notes. He stated that theamendment was carried on division. While defendant was speaking there wero cries—"Oh, Mr Mayor, that's libellous." The Mayor did not take any notice of tho cries.

By Mr Campboll: Ho did nob hoar the Mayor say that he had no animus against* Brookfield and Son. Defendant did nob indicate in what way plaintiffs had ruined the town. The discussion was upon the question of leasing the old Council Chamber site. Cr. Burns said that he thought enough had been spent on legal opinions. Tho Mayor expressed the opinion thab legal advice was unnecessary. ' James J. Austin deposed that he was one of the Councillors of tho borough of Onohunga, and was present at the meeting in question. W'itnessmoved thatalegalopinion be obtained from Brookfield and Son on tho matter of leasing a section of land. The Mayor said thab he considered it an insult to move such a motion, as he was of the opinion that Messrs Brookfield and Son were trying to ruin bhe town. He did not afterwards withdraw these words, or put any other meaning to them. His Honor said he could not understand —assuming that the wcrdshad been usedhow Messrs Brookfield and Son were ruining the town. Witness said there was a prior discussion in which the statement was made that Messrs Brookfield and Son had ruined the town. That statement was made by the Mayor. Tho Mayor did not explain how this had been done. The Town Clerk and other members of the Council remonstrated with defendanb when he made use of the words. They were not withdrawn in any way. Witness' motion was lost. By Mr Campbell: The Mayor was told thab the language was libellous, and he said something to the effect thab he had no animus against the plaintiffs, as bhey had done more work for him than any other firm of solicitors. By Mr Cooper : Witness understood the words to mean thab plaintiffs had abused the trust which had been previously reposed in them. ~-,., , ~ His Honor said that applied rather to the count which had been discontinued. Witness said thab Messrs Brookfield and Son had been recognised solicitors for bho borough. There was business in connection with them which was not yet concluded. ~ , , . His Honor said that contradicted plaintiffs' statement of claim. Wibness explained bhab the business was in connection with the waterworks. John Georgo Hutchison, Town Clerk of Onehunga, deposed tp being present at tho meeting. He heard the Mayor object to an opinion being taken from plaintiffs. His Worship said something aboub Brookfield [and Son having been a party to bleeding the town or something to thab effecb. The words were so sbrong bhab wibness said to His Worship, " Be careful, sir.be careful." Defendanb said that such was his opinion. John Dickenson Jackson, member of the Borough Council, Onehunga, also gave evidence." Brookfield and Son were still bhe solictors of the Council. They had not done anything recently for the Council, but no other solicitors had been appointed. Witness heard the Mayor speak against employing Brookfield and Son and say : " I consider this motion a personal insult to myself. I will not go to Messrs Brookfield and Son, as they have been the ruin of the town, and I have no confidence in their opinion." Witness considered the expression as referring to tbe waterworks contract, which had '..?>■■ •"" "'"" ' ■"

been troubling them for some time. The expression was a strong one, and hardly borne oub by facts. There had been a breach of contract/, and the contractor claimed damages. The plaintiffs advised the Council to compound with bhe contractor, which was done. Witness understood the words to refer to thab matter. Defendant was opposed to brie waterworks contract.

By Mr Campbell: Later on the Mayor qualified what he had said. He remarked thab he had no personal feeling against Messrs Brookfield, and that they had done as much private work for him as any other firm of solicitors in Auckland.

By Mr Cooper : Defendanb did not in any way withdraw the expression he had used. William Tapp, another member of tbe Council, aiso gave evidence. He deposed to having heard the Mayor use words to the effect bhab bhe solicibors were nob doing their duby bo bho borough. The Mayor said he would nob go to Brookfield and Son.

Frederick William Brookfield deposed that he was a member of the firm of Brookfield and Sons, barristers aud solicitors in Auckland. Up till about four months ago they had acted for tho Council, but received no formal retainer. Still he was in such a position that he would nob ab present take a case againsb the Council. By Mr Campbell: Witness had acted for Mr Yates once or twice, bub bhab was over five years ago. Since bhab wibness had once acbed againsb him. Witness asked leave bo amend tho claim by inserting iv the ninth paragraph the words " They have ruined tho town." His Honor said : I think with regard to amendments bhoy are usually striking oub words bhab have nob been proved. I will nob amend by putting words in. This concluded the case for bho plaintiff's.

Mr Campbell argued that the words were not in themselves defamatory or prima, jacie actionable, and therefore it would be for tho plaintiffs to prove ah inuendo. He contended that defendant was acting in a public capacity, and as plaintiff stated he was nob acting as solicitor for the borough at the time, the words could not be considered either defamatory or actionable. Hia Honor said that ho could attach no reasonable meaning to the words alleged to have been used by the defendant.

Mr Campbell aigued that plaintiffs were not entitled to succeed, and quoted the case of Miller v. Davy, Law Reports 9, Common Pleas, page 118, which was somewhat analogous and supported his contention.

His Honor said: The words "they are trying to ruin the town " are what Mr Cooper relies upou, for if a discussion arises in a Borough Council any member would be quito privileged in saying " 1 have no confidence" in this or that solicitor, unless of course malico was shown.

Mr Campbell said that the words " they are trying to ruin tho town '' were not defamatory, unless attached to plaintiffs in their professional capacity, and there was no evidence to show that such had been tho case. He did not suppose there would be any contest upon tho (question of privilege. Mr Cooper said ho did not contest that point. Tho Mayor was entitled to full and fair discussion upon matters boiore tho Council.

Mr Campbell said that only left tho question of malice, and lie submitted that had not been proved. To that it must bo shown that the words were used wickedly with intent to do harm to tho plaintiffs. Mr Campbell quoted the case of Spill v. Maul 4 Ex. Oh. Law Reports, 232. He submitted that plaintiffs must fail to succeed upon all the grounds, and that therefore there was nothing whatever for defendant to answer.

Mr Cooper, in reply, argued that the words were defamatory in themselves, and if thoy were accompanied by words suggesting malice, then the privilege of duty would not hold. Evidently in this intance it was a personal matter with the Mayor, for he said, " I think it a great insult to be asked to go to them," meaning Messrs Brookfield and Son. He argued that those words showed malice and removed the protection of the privilege. His Honor 3aid ho was in the position that if there was a jury he should say that they must decide as to whether or not there was any evidence of malice. Ho should submit that to them, but would be very much surprised if they found that there was any malice. Ho must say that this was r. case in which he must ultimately find for the defendant. No evidence of malice had been shown by any of the witnesses in connection with the words that " they were trying to ruin the town." The defendant might have spoken hotly, but there was nothing to show malice. Mr Campbell said that under the circumstances he did not propose to call any evidence. His Honor then gave judgment for defendant with costs on the lowest scale.