Jury Awards £60 To One Milk Firm; Other Fails

Press, Volume C, Issue 29608, 2 September 1961, Page 12

Jury Awards £60 To One Milk Firm; Other Fails

Damages of £6O were awarded to the Christchurch Milk Company, Ltd., by a jury in the Supreme Court last evening at the end of a five-day hearing in which that company and the Canterbury Dairy Farmers, Ltd., sought £21,500 for alleged defamation. The jury found that the other plaintiff had not been libelled, and therefore did not award it anything.

The two actions, heard together by consent of all parties, arose from a statement by George Maxwell Edmonds, chairman of the Christchurch Milk Consumers’ Protection Association, printed in the “Christchurch Star” on August 18, 1960.

After finding that the article defamed the Christchurch Milk Company, Ltd., the jury held that the article was not fair comment by both defendants on a public matter, as far as that company was concerned. It awarded the company £5O damages against New Zealand Newspapers, Ltd., as publisher of the “Christchurch Star,” named as first defendant, and £lO damages against Edmonds. The company had claimed £4OOO against the first defendant, and £lOOO against the second defendant.

The Canterbury Dairy Farmers, Ltd., had claimed £12,000 damages against New Zealand Newspapers, Ltd., and £4500 damages against Edmonds.

The jury returned its verdict at 8.27 pm. after a retirement of four hours 50 minutes.

Mr J. G. Leggat, with him Mr E. J. Somers, appeared for the plaintiff companies. Mr P. T. Mahon, with him Mr J. G. Hutchison, appeared for both defendants. On the motion of Mr Mahon, Mr Justice Macarthur entered judgment for both defendants against the Canterbury Dairy Farmers, Ltd. He reserved leave, on the application of Mr Leggat, for the plaintiffs to move to set aside judgment, or to move for any other judgment, within 21 days. His Honour reserved the question of costs in this action. To Mr Mahon, he said he would consider the question of certificates of costs in view of the amount of damages claimed by the plaintiff. Mr Leggat formally moved for judgment for the Christchurch Milk Company, Ltd., but said that his Honour had reserved his decision on the question of privilege raised by both defendants. The defendants had raised the defence that the article was published on an occasion of privilege and that there was no malice to go to the jury. To his Honour, Mr Mahon agreed that this action should be adjourned without judgment for the plaintiff being entered. His Honour (smiling): I am not going to be deprived of the pleasure of hearing argument on the question of privilege in this action, Mr Mahon? Mr Mahon (smiling): I shall have to seek further instructions from my clients on the matter. Addresses Concluded Continuing his address for the defendants when the hearing resumed yesterday morning. Mr Mahon said counsel for the plaintiffs in his address had frequently referred to the fact that no evidence had been called by the defendants. "The facts upon which the defence is based have all been extracted, voluntarily or otherwise, from witnesses called for the plaintiffs.” Mr Mahon said. The plaintiffs had criticised the defendants for calling no evidence, but why had not the plaintiffs called Mr McFadden, chairman of directors of the Can'erbury Dairy Farmers, Ltd., a director of the Christchurch Milk Company. Ltd., and a member of the New Zealand Milk Board? ‘The milk companies have placed themselves in a very strong position and have a statutory monopoly over a public commodity. Forgetting all loyal aspects for the moment, the companies therefore have a moral duty to keep the public well informed,’’ Mr Mahon said.

“The milk companies, having a monopoly over a public commodity, had a duty and a responsibility to reply to the article publicly if they thought it was unfactual and

extravagant. They could easily have replied to it and pointed out where the article was wrong and irresponsible in their view.

“Instead, they demanded an apology, retraction, payment of money as amends, and an assurance that no such criticism would be made in the future. This last was an extraordinary thing to demand. Not content with controlling the milk industry, the companies wanted to control newspaper comment on they way they ran it. “The purpose of the action is not to recover losses. The companies cannot suffer pecuniary losses because they have a monopoly. If they had suffered losses they would have had their accountants here to show the estimated loss in detail. These actions were brought for one purpose alone: if they could obtain a verdict for any substantial sum against the newspaper or Edmonds they would intimidate both, and anyone else of a similar mind, from making any criticism of them again. "If that is their aim, I ask you by your verdict to show what you think of that type of action.” Mr Mahon concluded. Summing-Up The jury had to decide, on the one hand, the right of freedom of speech, a fundamental right which included a newspaper, an individual or a company. On the other hand was the right that a person or company could only be criticised in a way which was not defamatory. The law held the balance between these two rights, said his Honour in summing up. His Honour paid tribute to counsel engaged for the way they had conducted the case —“in accordance with the best traditions of the Bar. They have shown tremendous restraint, a complete lack of acrimony: but neither of the cases put forward has lost anything by way of force or effect.” If a statement made about a company was that it was conducting its business inefficiently or badly and that statement was proved untrue, that would be a libel, said his Honour, explaining the law to the jury. Such a statement would tend to lower the company’s business reputation. The article did not name the Canterbury Dairy Farmers, Ltd., said his Honour, but the plaintiffs said that in effect, as they were the two companies handling the bulk of the milk, a reasonable person would infer from reading the article that it Was the plaintiff companies being attacked. The Christchurch Milk Company was named in one statement in the article. If any one of the five statements complained of in the article was found to be libellous then the jury must find the article defamatory. Eradication Moves The jury would notice that the article in the newspaper referred to contamination of milk by D.D.T. and penicil-

lin. A great deal of evidence had been given, said his Honour, about efforts made by the companies to eradicate such things as tuberculosis and brucellosis' The article, however, did not appear to refer to those, but to penicillin and D DT. The onus was on the plaintiffs to prove that the article was defamatory. The defendants had to bear the onus of proving it was fair comment. The plaintiffs said thei worst libel in the article was I contained in the statementi that the milk contained "drugs and poisons which children were forced to consume and which would seriously affect their health in later years.”The plaintiffs said this strong and damning statement was not factual and unsupported by any scientific or medical evidence. The defendants said the evidence showed a strong body of medical opinion was that penicillin in milk was deleterious. The jury had to decide if any of the statements in the article were defamatory. If it held they were not, that was the end of the case. If the article was held defamatory, the jury had to decide if it was fair comment made on a matter of public ■ interest. “Public Interest” His Honour said he ruled, provisionally, that the article was on a matter of public interest. Therefore the jury had to consider whether the article was a fair comment. The jury had to decide whether the article could have been written by a fair man. The jury did not have to agree with it.

The jury, in deciding the issue, must confine itself to the comments made in the article. The defence of fair comment,, however, required that the facts on which the comments were made must be true and factual, and the comments on those true facts must be fair. The statements must be honestly made. Comments made reasonably could become unfair comment if made with a malicious motive. The manager of the Canterbury Dairy Farmers, Ltd., Fowler, had said that the defendants had wrong notions, but did not generally question that they held them quite sincerely. Fowler had, in general, suggested that the “Star” had been unfair to his company compared with other newspapers. "On the question of proof of malice, you may possibly consider that the evidence falls short of proving a malicious motive. However, it is a matter of fact, and entirely one for you. It is also only one of the things that must be taken into account when considering the question of fair comment.” his Honour said. If the jury decided the article was fair comment, then that was a defence, and it need go no further. If it found the article defamatory and not fair comment made in the public interest, then it must consider damages. Assessing Of Damages The jury could not award more than the damages claimed but could award much less, right down to a farthing. The jury would award such a trifling, or nominal sum, only if it felt that, while the plaintiffs had been technically defamed, in all the circumstances the actions should never have been brought before the Court The jury must weigh up the sting of the libel, if it so found, and the way in which it would affect the companies’ business. Mr Leggat had suggested an award of exemplary or punitive damages. The jury however, might decide on a fair and reasonable sum, in all the circumstances, but that there was not much to be said for punitive damages The jury, if it came to the questions of damages, should be fair and reasonable I’ should remember the real distinction between the plaintiff companies’ businesses and between the first defendant, as a company controlling a newspaper with a wide circulation, and the second defendant, as an individual, his Honour concluded.