Supreme Court MOTION IN LIBEL SUITS DISMISSED

Press, Volume C, Issue 29536, 10 June 1961, Page 16

Supreme Court MOTION IN LIBEL SUITS DISMISSED

A motion to set aside two orders for discovery, brought in an interlocutory plead.ng in proceedings stemming from the issue of two writs claiming damages for alleged libel, was dismissed by Mr Justice Richmond in the Supreme Court yesterday. Mr J. G. Hutchison appeared for New Zealand Newspapers. Ltd., and George Maxwell Edmonds, a branch manager, of Christchurch, in support of the motion. Mr J. G. Leggat appeared for the Christchurch Milk Company, Ltd., and Canterbury Dairy Farmers. Ltd., tn opposition to the motion. Opening his submissions in support of the motion to set eside. Mr Hutchison said the interlocutory actions, seeking an order for discovery, related to libel proceedings by the Christchurch Milk Company and Canterbury Dairy Farmers, Ltd., against New Zealand Newspapers, Ltd., as publishers of the “Christchurch Star.” named as first defendant, and George Maxwell Edmonds, a branch manager, of Christchurch, named as second defendant. The libel proceedings concerned an article printed in the "Christchurch Star” on August 18. 1960. and the second defendant in the libel proceedings was the author of the article. Statement of Defence The statement of defence In the libel action had been filed, said Mr Hutchison, and the defence was that the ■words complained of were not defamatory, and fair comment was pleaded: or. alternatively. if the words were held defamatory, then privilege was pleaded. His Honour: It sounds something like the defence used in the 'Truth" case. Mr Hutchison: Yes, sir, but in this case the defence has a great deal more substance. Counsel said that a clear statement of defence had been filed in answer to the writ claiming damages, and it was the defence on which the defendants relied. In fact, the defendants were bound by the statement of defence. Counsel submitted that the motion for orders of dscovery should be set aside on the ground that the orders were oppressive or. alternatively, related exclusively to the evidence in support of the defendants’ case. Mr Hu'chison conceded that orders for discovery could be issued as of right and that discovery was allowed in libel cases, but suggested that discovery must be for a legitimate object. All the facts on which the defendants relied had been set out in the statement of defence and there was nothing in the case or the pleadings to show discovery should be made of the documents in the possession of both defendants, he said. ‘■Plethora” of Documents Counsel said that the discovery would be oppressive because both defendants held a plethora of documents. His Honour: Is a “great number” a plethora? Counsel: Well, sir, a great number, but, in this case a plethora. Counsel added that the article complained of concerned milk. It was a matter of common knowledge that this subject was of wide interest in Christchurch, and this could have come to the judicial notice. His Honour: I cannot have judicial notice, as I was not here at the time. Counsel suggested his Honour must have noticed a number of articles concerning milk for schools, distribution of milk, and treatment of milk. "One <of the defendants is a newspaper and has articles going back over 10 years. This would indicate that the laborious research and detailed lists required if all documents held by both defendants were to be discovered would be oppress.ve.” In submissions on the alternative ground that all the documents held by both defendants related exclusively to evidence for the

defence of the Ebel proceedings. Mr Hutchison said the statement of defence filed contained all the facts tn which the defendants placed their defence. The order for discovery could not be made for evidentiary documents. Mr Leggat submitted that he could not find a case in New Zealand where oppression had been used as a ground for successfully opposing an order for discovery. The fact that the defendants had documents going back over 10 years was disclosed by them. It was the defendants who had stated that period. His Honour said, and Mr Leggat concurred, that if an order for discovery meant a laborious task with little reward to the party making the order then it could be a ground for setting aside an order. "The plaintiffs seek the order for discovery to know if the defendants have evidence in rebuttal of the plaintiffs' allegation of malice." Mr Leggat said. He submitted that the submission by Mr Hutchison that the statement of defence contained sufficient exolicit facts on which the defendants relied for their defence was no excuse against, discovery. If that were so. then "here would be no order for discovery in any case in which the defence sufficiently informed the plantiff of the defendants’ case. His Honour held that Mr Hutchison’s submissions in regard to oppression were valid in interrogatories, orders to produce and inspect, but not in orders for discovery. He said that the affidavit filed that all the documents held by both defendants related exclusively to evidence for the defence appeared a sweeping statement. After questions by his Honour Mr Hutchison conceded that there could be other discoverable documents, not privileged because they were evidentiary, held by the defendants. “Very Serious” His Honour said this was a very serious matter in view of the sworn statement that all the documents were evidentiary. Mr Hutchison said he would take responsibility for this, and his Honour said he would take the view that the affidavit had been loosely drafted. Mr Hutchison said the documents held by both defendants concerning particularly the article complained would be evidentiary. His Honour said an order for discovery was an order for the parties to produce an affidavit listing all the documents held. Mr Hutchison could itiimise those documents he deemed privileged. His Honour held there were no grounds for setting aside the orders of discovery and therefore he dismissed the motion for setting aside. He awarded £5 5s costs each to the Christchurch Milk Company and Canterbury Dairy Farmers. Ltd. Mr Hutchison asked for an extension of time within which to comply with the orders of discovery. Mr Leggat said he had no obligation to an extension, and counsel agreed to settle on the length of extension to be granted.