NEWSPAPER SEEKS NEW TRIAL IN LIBEL ACTION

Press, Volume XCVIII, Issue 28938, 4 July 1959, Page 14

NEWSPAPER SEEKS NEW TRIAL IN LIBEL ACTION

Further Argument On Direction To Jury

(New Zealand Press Association) # WELLINGTON, July 3. Statements by Mr R. B. Cooke in the Supreme Court, at Wellington, today that a jury could have concluded that the Minister of Industries and 'Commerce, Philip North Holloway, had given false evidence in his claim for damages for libel against Truth (NZ.) Ltd., were hotly contested by Holloway’s senior counsel, Mr W. E. Leicester.

Mr Cooke made the statements in the course of his argument on the points of law raised by the action.

Mr Cooke was drawing attention to parts of the evidence which, he said, showed that Holloway had given, false evidence, but Mr Leicester objected to the line of his remarks.

“It »s part of a campaign of vilification against plaintiff which has continued down to the present time,** he said.

Mr Justice Hutchinson stopped Mr Leicester speaking and said: “You should withdraw that. Mr Cooke is entitled to say what he thinks in Court.” Mr Leicester then withdrew his statement.

“Under the guise of attacking the verdict on the ground that contemptuous damages should have been awarded, ,he has introduced a number of matters that would be relevant, only if the ground was that the verdict was against the weight of the evidence.” said Mr Leicester. He asked his Honour to consider checking Mr Cooke.

Mr Cooke replied that a man could not complain he was being vilified if it .was pointed out that he had given false evidence in Court. His Honour said that he had decided that the ground was untenable. Mr Cooke had been entitled to make the suggestion to the jury, but if, in fact, Holloway was libelled, the libel was not slight His statement to that effect in the summing-up was fair.

Holloway claimed £15,000 damages, and last month a jury awarded him £ll,OOO, but a defence by “Truth” that the occasion of the alleged libel was privileged remained to be argued before Mr Justice Hutchison alone “Truth" added a motion for a new trial on the ground that his Honour had misdirected the jury in his summing-up, and had wrongly excluded evidence “Truth” had sought to bring forward.

The argument before the Judge alone began yesterday and will continue on Monday.Dealing with a direction in the summing-up that when a specific meaning of words was alleged by a plaintiff he was bound by that meaning, Mr Cooke said that direction was unobjectionable to the extent that it correctly stated one of the issues before the jury —that was whether the passage sued on simply meant that the Minister was bungling or imprudent But this was linked with the part of the passage asking for an inquiry which, the jury were told, had no bearing in the matter “■ The jury could not properly determine whether there had been bungling or lack of prudence without taking into account the influence of the parts of the context in which an inquiry was called for.

In calling for- such an inquiry the context told in favour of the interpretation that Holloway was bungling and imprudent His Honour: You never suggested that to the jury at any stage, and left me without any meaning to put to it Mr Cooke: At one stage 1 said specifically that the Minister had been criticised for failing to live up to his responsibilities by not holding an inquiry. Mr Cooke said that on the question of damages “Truth’s” first objection was to the Judge’s direction that if there had been a libel, it was not a slight one. In the give-and-take of political controversy and political journalism,to which Holloway was not a stranger, strong language was not necessarily as damaging as in other spheres. As to whether the libel—if it was a libel—was a serious one, the jury could have reasonably thought that had Holloway suffered any damage it was largely through his own attitude, and that of the Government in doing nothing towards having an inquiry into the Freer case or towards giving the public any information as to why an inquiry was not being held. If there had been any damage, he had brought it cm his own head.

“Secretive” Procedure Mr Cooke said there was abundant evidence from which the jury could infer that Holloway, accepting that he had not acted dishonourably, had none the less been a party to secretive procedure to matters referred to in the article It was reasonably plain from his own evidence that he was far from regarding that as in any way dishonourable, and was in favour of a measure of secrecy to matters relating to import licensing and of fresh and unorthodox apßroaches to administrative problems.

As to the question of secrecy, the jury could well have inferred that he had been far from frank in his evidence of what had occurred between Freer, Judd and himself. Holloway was the only witness called on the discussions between the three, and the hearing had been forced on while the other two were out of the country.

Mr Leicester objected to the remark that the hearing had been forced on There had been no application for an adjournment on the grounds that “Truth" required the evidence of Freer or Judd

Mr Cooke said that Holloway had information that Freer and Judd were returning shortly Asked by his Honour whether

counsel had put that matter before Mr Justice McGregor when an adjournment was asked for so that “Truth’s” solicitors could study the files, Mr Cooke said he had not as only Holloway knew when the others were retundn«- “Truth” did not know raid if Holloway attributed so much importance to the case as to claim £15.000 he at least should have been able to remember where, and h 2 £ ad the interview with Judd and Freer when matters became so u „e nt A reasonable could well have eonthat the reason, which seemed good to the authorities, concerned special favours that « he ll1 * Prepared for Judd in an atmosphere of some secrecy.

Matter For Jury of M Hon <X>ke the CTWHbility of Holloway s evidence as a whole was suspect, so that a £72™“ have been entitled to “view of his conduct “ “ e matters to which the related, he should not be awarded more than a contemptuous, or nominal, sum. said it was elementary in any case, libel or ™ 01,11 * jury weighed or not .a plaintiff was telling the truth. No jury ■ better opportunity than d? *s® present *?“?• the jud «mg by their thought HoUoS was teUing the truth. Mr Cooke submitted that evid«ice regarding the English Hi the Di F® ctor of Public Prosecutions, which had Been excluded, could have had a bear,o” “Truth’s” submissions ‘ hat , w “ oowhere in New Zealand for a citizen to go when pe^ted Irregularity, or wished to discuss a possible criminal matter, with an indePcnaent, yet official, source. xr ere as , nowhere a person in New Zealand could hope to ievance . or question irregularities in the Government, except to the press. . . “certain newspapers," said Mr Cooke. Had been admissable, ■ thought the jury’s finding might have been substantially different to relating the English office to the events leading up to the Holloway case. His Honour had ruled that if e regarding the office of the Director of Public Prosecutions was involved in the case it would have been only on the submission regarding privilege—a Point .on which the jury could not decide. “Truth” believed it would also have played a part in assessment of damages, apart from the matter of privilege, had it been allowed. Because it was not allowed, Mr Cooke said, “Truth” suggested it amounted to an exclusion which to itself, represent misdirection by the trial Judge. Precedent Quoted

Mr Cooke said he also wished to point out to the Court that in an established precedent in law —he quoted from the British Law Records—damages in a libel case might be mitigated, and the degree of libel lessened, when a published statement, alleged later to have a libellous assignation, was originally a quotation from a third person. Such a quotation was requoted in good faith in the Holloway case.

“L ?° n . our: didn’t you Mr Cooke, in the course of the trial?

His Honour then read his notes of submissions made in Mr Cooke’s addresses at the trial itself, and said that counsel had not made an issue of the matter to its present interpretation when he had the opportunity to do so before the jury. Mr Cooke said he had mentioned specifically at the time that the words sued uoon were not an allegation of dishonesty or implied dishonesty by “Truth,” but were words said bv Judd, and re-published in good

faith as an accurate report of Judd’s replies .to questions regarding import licences. Mr Cooke claimed he had not gone further into the matter at the time, because he did not then consider that his Honour, in his summing-up, would direct the jury that the words “See Phil.» Phil will fix it” would “not help | the defendant’s case.” His Honbur should have directed the jury that in the case of *' quotation which was innocent in its first context—from a third person, later claimed to be libellious. the fact that it was a quotation, and not a direct imputation*, was a matter to be considered, and one which could mitigate the allowance of damages. His Honour told Mr Cooke that he could hardly expect the Judge on the Bench to keep the whole of the Law Record Book counsel was now quoting “in my head.” His Honour said Mr Cooke should have brought the issue before the jury if he considered it relevant, and should have pressed its significance upon them. Question Of Damages On the question of damages and the admissability of evidence which might have qualified the amount of damages, Mr Cooke said his Honour had indicated to the- jury that they might go beyond mere compensatory damages and award punitive damages if they considered Holloway had been even more damaged in the public eye by “Truth’s” conduct of the trial.

Mr Cooke said he wanted to make one thing clear on this point:

“In regard to the cross-examina-tion of Holloway and the conduct of the trial, all questions asked were strictly relative to points connected with the action or to points raised by plaintiff’s counsel in examination during evi-dence-in-chief.”

“Some of the authorities point out that when a man brings an action arising from an alleged libel which concerns his public life, details of his' domestic life should not be produced in crossexamination, except perhaps to test credit—and the defendant observed that principle,” said Mr Cooke.

Mr Cooke submitted also, that where the trial Judge excluded evidence which Holloway’s counsel had contended to be hearsayregarding the character of Judd—his manner of speech and his general conduct when interviewed b “Truth’s” representatives—such exclusion might have gone against “Truth” in the assessment of damages.

Such points were, in his opinion, relevant to the question of damages, because Judd’s whole attitude. his manner of speech, and other things, would have had a tearing on the words he was s'ated by “Truth” to have used in the passage sued on—“ See Phil, and Phil will fi. it” Reference To Judd

Mr Cooke referred to the fact that, in his final address, Holloway’s counsel, Mr Leicester, had

suggested to the jury that If Judd was a garrulous man, as instnu-. ated in certain statements made in Court then “it rnjght be that he never said at all what was reported."

“So the matter of accuracy was put in doubt without the defence being able to call evidence,** in respect to Judd’s remarks and general demeanour. Finally, Mr Cooke submitted, he believed that his Honour, because of all- the factors detailed by the defence in legal argument over the past two days, had “withdrawn from the jury’s consideration the main points in the defendant’s case. “

That Was his argument on the motion for a new trial, on the grounds of misdirection and exclusion of certain evidence.

The junior counsel for Holloway, Mr R. G. Collins, was the first to speak to response to Mr Cooke. Mr Leicester will give the main address for plaintiff on Monday.