Case For Defence Opened In £4000 Slander Action

Press, Volume C, Issue 29602, 26 August 1961, Page 12

Case For Defence Opened In £4000 Slander Action

(N.Z. Press Association) . WELLINGTON, August 25. The Director-General of Health, Harold Bertram Turbott, denied in the Supreme Court at Wellington today he had been actuated by malice when recounting a conversation he had had at Geneva in reference to the director of the Division of Clinical Services,. Archibald William Stopford Thompson. Thompson is sueing Turbott for £4OOO for alleged slander.

Mr F. D. O’Flynn, with him Mr S. W. Shires, is appearing for Thompson and Mr E. D. Blundell, with him Mr L. M. Greig, for Turbott. Mr Justice Leicester is on the Bench. Turbott entered the witness box when the hearing resumed this afternoon. Opening the case for the defence Mr Blundell said, the action had so developedthat Turbott’s integrity and good name were also at stake. Today was the fifth day of the hearing and Mr Blundell said that in most civil cases before a jury, a three-day hearing was considered long. To date, not only the jury but the public had, in the main, heard only Thompson’s side of the story. That was quite a long time in only one phase of the mat. ter, and impressions could be gained that would be a little difficult to eradicate. Thompson had been in the witness box a long time and had made many damaging statements against Turbott. Witnesses For Plaintiff Evidence had been beard from a number of distinguished medical people who had spoken highly of Thompson’s achievements and personal qualities. At times one might have wondered whether it was a rehearing of Thompson’s appeal or an action for defamation. It was important now to approach the matter with fresh minds and endeavour to put aside the case in its proner perspective. / Many witnesses had been called on subnoena, but none of them included those to whom the words complained of were alleged to have been published. Thompson was forced to rely on an admission freely made, that the words were, in fact, stated in a conversation 'in Turbott’s office in the presence of a Crown solicitor. In essence, the case could be fairly and accurately reduced to the question whether Turbott. when he repeated the substance of a conversation he had with Professor J. M. Mackintosh at Geneva, honestly and sincerely believed he was passing on what Mackintosh had said, or the substance of it If he did. it had to be decided whether, in repeating the words, he did so for a Draper purpose or whether he was activated by reasons of ill-will •Counsel’s forecast i Mr Blundell said he could not agree more with the forecast of Mr Flynn that many hard words would be said and much dirty linen washed. But Mr Flynn had then said Thompson had done all he could to avoid it. •What, at the material time was regarded as not of great moment for Thompson, had developed into a cause celebre and much damage had been done to the contending parties and to the good name of the Health Department. The essential background of the case was a man’s desire t > protect his good name and reputation. Mr Blundell said. He invited the jury to recall that Thompson had said that, had he not lost his appeal, end provided there was no repetition of the words complained of, he would not have brought the action. ’ He had gone post haste tc his solicitor who, in turn had written a letter to Turbott affording him an opportunity to apologise, but in terms requiring him to agree that he had told lies Naturally enough. Turbott. who sincerely believed in the accuracy of the words refused.

It was the defence case that the words were not invented by Turbott, but were what he believed Mackintosh to have said to him at Geneva. They were spoken to the persons concerned in. the presence of a Crown solicitor who was being briefed for the appeal. It was never urged by Turbott at that gathering in his office that the words should be raised at the appeal, and it was left in the hands of the solicitor. Ability Appreciated The defence contended that Thompson's ability and enthusiasm and the good work he had done for the department had always been recognised and appreciated by Turbott, who had the highest respect for it. Eric Charles Richard Winkel, a barrister and solicitor in the Crown Law Office, said that for 12 years he had been solicitor for the Public Service Commission. He was solicitor for the Crown apipointed to represent the commission at Thompson’s appeal before the Public Service Apoeal Board. The practice over many years had been for the appellant to prepare his case in writing, and a similar statement was prepared by the department in which the appointment was made. It also contained a mixture of facts and expressions of opinion, justifying the department’s recommendation to the commission in favour of the (person appointed. In Thompson’s appeal i gainst the appointment of Dr. D. P. Kennedy to the post of director of the Division of Public Hygiene, both sides were represented by counsel. Winkel, who was instructed to appear, looked to senior officers of the department for the necessary background of the qualifications of the two persons. The commission was the nominal respondent because it was the commission’s decision that was under review; but, in practice, the commission and the department acted jointly. Counsel on both sides had similar rights to counsel in Court. In addition to his written statement Thompson gave evidence and called 16 witnesses. Conference On Appeal Winkel said he arranged a conference in Turbott’s office of persons he thought would probably give evidence or who would instruct him in the appeal. In addition to Turbott. his two deputies, Dr. R G T Lewis ard Mr D A. Hunn. and a member of the commission were present. They traversed the preparation of a statement of evidence and Winkel satisfied himself that Turbott was in a position to testify in a general way. He invited comment as to the nature of the case likely to be put forward by Thompsen. Lewis told him that a testimonial from Mackintosh in glowing terms would be put forward by Thompson. Turbott then said: "That’s not what he told me,” and went on to refer to a discussion he had with Mackintosh at Geneva not Song before. Winkel then asked Turbott what Mackintosh did say Winkel could not remember the rest of the conversation but he made a note to the effect that Mackintosh did not favour Thompson as a prospective Director-General Lewis remarked that that was hearsay evidence and Winkel made some commen’ on it He thee went on to say they could not use that conversation as part of the prepared written evidence But that if Turbott were cross-examined on the test!.

mondal, it would be proper for him to refer to the conversation. There was no insistence on the part of Turbott that reference to the conversation bad to be made. It was left in Winkel’s hands. Turbott did not make any impression that he was glad to be able to say that 'about Thompson and Winkel did not gain any impression of ill-will on the part of Turbott towards Thompson. “Universal Decision’’ In reply to Mr O'Flynn, Winkel said it was unusual for an appeal to be decided on a majority decision, as in that case, with the chairman dissenting. Mr O’Flynn: lit was described as a glowing testimonial?—Yes. But not actually shown to you?—l did see it later. It is probable it was read to you?-i-Quite likely. You have a clear recollection of the evidence Turbott gave at the appeal?—l have read it several times. You were not surprised by it?—lt was in the nature of what I expected. You expected it would be in the n'ature of what Mackintosh said “self comes first”?—No. All I expected was a statement to the effect that Mackinstosh. having been told of an appointment to the position' that would lead to being permanent head of the department, replied that he did not favour Thompson. Whatever Turbott said at the meeting in his office, he seemed to say it spontaneously after Lewis’s reference to the testimonial?—Yes, No details were given by Turbott of the circumstances under which this conversation took place?—Yes. I remember the details, not the words. Was he asked for this information or did he volunteer it?—l asked him for it. Meeting in Corridor What did he tell you?—As far as I can recall he had been to the JSVorld Health Organisation conference in Gengva where he met Mackintosh in the corridor. Mackintosh made some inquiry about Thompson, and Turbott said something to the effect he was getting on all right, and that on his return _ to New Zealand one of his first tasks would be to make a selection as to whether Thompson, or another man, should receive the appointment that would lead to Director-General-ship. Turbott said in evidence he had been Director-Gen-eral since 1959. He was 62 Retiring age for the position was 65. Besides his basic medical qualifications he held a special diploma in public health. He joined the Health Department in 1927 and before his presen: appointment was for 12 years deputy Director-General of Health. Mr Blundell: In considering promotion to deputy Director-General from a director, what are the factors to be taken into considera’eon?—Qualifications, experience. ability and competence and then, that vague and difficult thing to assess, the persona! characteristics that enable a man to deal with a huge group of men and women, such as are in the Heal‘th Department. Turbott said he first met Thompson in London in 1946 while travelling overseas.

Turbott then was “a humble director of School Hygiene.” Thompson had been offered an appointment in the Health Department and Turbott was instructed to "give him an idea what the job was here.” Turbott said he had nothing to do with the appointment.

While in London he visited Mackintosh, an international authority on public health, and he gave a “very good report on Thompson.” Turbott informed the High Commissioner’s office that the appointment was “a very suitable one” for Thompson. Though he himself was only seeing Thompson to give him some information, he added his own recommendation of Thompson’s suitability. Shortly after returning to New Zealand, Turbott was appointed Deputy DirectorGeneral. Thompson was then medical officer of health at Auckland. Turbott frequently saw him when he came to Wellington. Mr Blundell: Do you have any reason to alter the opinion you formed when seeing him in London?—None gt all. He was doing the job very well indeed. What sort of regard have you for his ability and his work?—Extremely high regard. He is a very able man. Reciprocal Visits Turbott said Thompson and he had been on quite friendly terms. “I visited his home several times. He visited mine when he was in Wellington.” Thompson had been appointed to thg position of director of the Division of Clinical Services in 1955. Mr Blundell: And did you have anything to do with that promotion?—Certainly, it was discussed with Dr. Cairney. The pair of us talked it over and both were fully agreed that that was a very suitable appointment to offer Thompson, partly because of his particular qualifications to deal with matters dealing with the medical profession, and because of his ability. Now that you have seen something of his work in that new position, have you any cause to vary the judgment you formed at that time?—None at all. He has done his job very well. Turbott said he was not aware that when Thompson came to Wellington there had 6een any cooling off in his relationship with him, as had been alleged. Mr Blundell: In his new position here in Wellington, did you see much of him?— Under Dr. Cairney’s DirectorGeneralship the method was different from our bureau method, and we had monthly meetings of all the directors, where we sat round a table, and every man discussed anything which was in his mind . . . then in addition for, I think, about the best part of two years Dr. Cairney was busy and dropped his own meeting in the board-room, so I called into my room, once a month, the men who had diplomas of public health because I wanted their help and discussion in the problems of the day. Because I had a high regard for Thompson —he was on the curative side, not my side —I brought him into the group. Part In Talks Turbott said Thompson was always participating ‘in the discussions. Sometimes “he carried the day and sometimes he didn't.” Mr Blundell: In your wide field of activities, is there plenty of room for differences of viewpoint and approach?—We are always having differences in viewpoint and approach and the philosophy of getting on with the job in our department is to have a discussion on the problem. The majority of opinion always rules in, the long run. Turbott said that when he was appointed Director-Gen-eral he inaugurated a ‘bureau system to give the lower echelons a chance to sit in on discussions and have their share, because head office had got so big that, in the ordinary board meetings. there was hardly room for all assistant-directors, nutritionists, etc., at head office.” Turbott said he was aware his evidence differed in several respects from that given by Mackintosh. Mr Blundell: Has it caused you to wonder whether your recollection is correct or not? —Yes. I have been puzzled about it. But no matter how much I think about it. I still think that was the gist of whet he told me. I have thought about it a lot, and I still believe he said something of that substance to me.

Perhaps we can get a little better background of where

this conversation took place. Was this a big building or a small one where the corridor was?—lt was a huge building covering acres. Were there many people in the corridor passing to and fro?—Oh, yes. People coming and going. Was there anyone else present during the conversation between you twp?—No. And now at this present time, do you believe that the conversation was, in substance, what you have told us?—Yes, I shall always believe it was something to that effect that he told me. Over the period you have been Director-General, have you seen as- much of Thompson as you did just before that?—No. I haven’t seen so much because, by this system. I have got a little removed from the day-to-day contact. But I still know exactly what every man and woman is doing in policy matters, or matters of any moment because their work is channelled over my desk. Turbott said his meeting with Mackintosh in 1946 was the first occasion he had met him. When he left the United Kingdom during that year he was on friendly terms with him. During 1950 in 1956 Turbott represented New Zealand at the W.H.O. at Geneva and always called on Mackintosh. Inquiry at Geneva Turbott said that in May, 1960, he was elected president of the W.H O in Geneva, While walking along a corridor to a committee he “felt a friendly grip on the arm” and was stopped by Mackintosh. "He said: ‘How is my friend, Thompson?’ I said ‘Doing very well.’ Then he said quietly, and in his rather soft, Scottish slow way, ‘Thompson has a brilliant brain.’ Turbott continued: “I am sorry I have forgotten. I said to him, making use of the opportunity, thinking—as the next sentence will show- here is a man who knows Thomnson well. “I said: ‘When I get back I have got the rather difficult task ahead of deciding between Thompson and another for a job which gives the opportunity of reaching the top.' “And then he said, as I explained - just a minute ago, ‘Thompson has a brilliant brain. He would never do for a top job. Self comes first with Thompson'.” Malice Denied To Mr Blundell. Turbott said he had not been actuated by malice when making the statement in respect to what Mackintosh was alleged to have said. He agreed he had repeated the alleged conversation at Geneva to the solicitor who was instructed to assist in the preparation of the case in the appeal hearing over the post of the director of the Division of Public Hygiene. He denied tjiat. at any time from his return to New Zealand till up to then, he had mentioned the conversation to anybody. Mr Blundell: Looking back at it, do you think if you had not been asked the question by the solicitor at the appeal you would have made any reference to it at all? No. The hearing will be continued on Monday.