Defence Case Opened In £16,500 Claim By Firm

Press, Volume CII, Issue 30287, 13 November 1963, Page 18

Defence Case Opened In £16,500 Claim By Firm

(New Zealand Press Association) WELLINGTON, November 12. It had been a matter of “considerable astonishment” that every electric heater tested at the Dominion Physical Laboratory seemed to have some want of conformity, said Mr G. P. Barton in the Supreme Court at Wellington today. He was opening the defence case for the Consumer Council and Allan Edward Monaghan, a public servant, who are being sued for £16,500 by Turnbull and Jones, Ltd., for alleged libel.

With Mr Barton for the defendants is Mr R. T. Feist. Mr R. E. Harding, with him Mr B. B. Boon, appears for the company. The hearing is before Mr Justice McGregor and a special jury. The statement of claim alleged that Monaghan was a public servant and “is, or was, the editor of or was otherwise responsible for” the publication in March, 1962, of a magazine called “Consumer.” and of articles complained of in respect of electric heaters. It was alleged the articles had been submitted before publication to the Consumer Council, which authorised their publication. The words complained of. continued the statement of claim, meant among other things that Turnbull and Jones, Ltd, were manufacturing and selling heaters that were dangerous to life and property, that the company had committed and was continuing to commit offences against the Electrical Wiring Regulations, 1961, and that the company was fraudulently using the standard mark upon heaters upon which it was not entitled to use the mark.

The defence case is that the reports of the tests carried out on the electric heaters were accurately stated and that the comment made on the reports was fair comment, or, alternatively, was made on an occasion which is privileged in law. At the end of the company’s case today, Mr Barton moved for judgment for the defendants, or alternatively for non suit. His Honour reserved his decision.

“Impartial Tests” In his opening address Mr Barton said the action was a serious claim by a large and reputable company against the Consumer Council and Monaghan, who was, at one time, executive officer of the Consumer Service.

"In the course of my learned friend's opening, some rather strong things were said about the magazine ‘Consumer,’ which is published by the Consumer Council.” said Mr Barton. “The Consumer Council has no wish to be unfair to anyone. It wants to be helpful to consumers, to the public and manufacturers, and one of the ways it considers it can do this is by engaging in impartial testing of certain consumer goods. “The theory behind the testing of goods in this impartial way is that consumers will become more discriminating, that they will be more intelligent in purchasing because they have more information to enable them to arrive at a helpful purchase. If you have a more intelligent and discriminating purchasing public, you will have a more responsible group of manufacturers and retailers.”

Independent Testa There would be evidence that some kind of survey of

consumer demand was made to see what goods could be tested, and that one of the goods suggested was electric heaters, continued Mr Barton. It had been necessary to go to an independent testing authority and it was thought the Department of Scientific and Industrial Research at its Dominion Physical Laboratory at Gracefield would be the appropriate testing authority. "But it became clear at a very early stage that questions of safety would arise. You will hear evidence that at a very early stage nobody thought that very many heaters would, in fact, fail to conform with some acceptable standard, and that it came as a matter of considerable astonishment that, far from that being the position, in fact every single heater tested seemed to have some want of conformity." Mr Barton said the officer who had engaged in writing the article complained of and the officer responsible for writing the editorial in the magazine would give evidence. It was the defendants’ case that after hearing their evidence the jury would believe that they honestly thought every statement of opinion included in the article was true. 1961 Regulations “It is a pity that just about the time of the testing and the writing of the articles, the Electrical Wiring Regulations, 1961, came into force. The article appearing in ‘Consumer’ was really dealing with two situations—with the electrical heaters that had been manmactired before these wiring regulations came into force, and those that had been manufactured after. “In order to deal with the scope of the Electrical Wiring Regulations, there was a discussion on them in the editorial in ‘Consumer.’ And I will suggest that the writer of the editorial was making it perfectly clear to those who read it that the Electri-

cal Wiring Regulations were new regulations, newly coming into effect, and with respect to electrical equipment made before the regulations came into effect they did not apply. “We will suggest to you there is no substance whatever for the suggestion that the writer of the editorial or of the individual heater assessments was implying, leading readers to infer, that there was some breach of regulations in respect of equipment made before December, 1961.” "Reasonable Steps” Earlier, the managingdirector of Turnbull and Jones, Ltd., Kinley Harold Black, said in evidence that steps taken by the Consumer Council in purchasing and testing goods and 1 en reporting on them to manufacturers were reasonable. Black, asked by Mt Barton if he considered the public should have some guide for their purchasing, said he had not considered the point. , Mr Barton asked him what he meant in a letter when he wrote of the pointless activities of the department. Black said the activities he referred to were the only ones known to him at the time—the testing by a public servant of the Industries and Commerce Department of two heaters which had already been tested and approved to that departments requirements. Also two other heaters were tested which were discontinued models and for all practical purposes were off the market. He considered indulgence in such activities was pointless and said so. Black agreed the testing of products was one way of pro-

tecting consumers, provided the tests were accurate. At the time of the tests the Electrical Wiring Regulations, 1961, were not in force. ft was reasonable to have a standard specificartion for such a test and specification 1240 was the one in use at the time. His firm used it themselves.

It was made clear in the article that the regulations were not in force until December. 1961, and that they did not apply to equipment made before then, such equipment having to comply with the 1935 regulations. Black said. The article, by omission, implied that the specifications were binding. Black said a good many of the heartens mentioned in the article would be made after December and there would be a legal obligation for them to comply. A period of 12 months grace was allowed by the regulations and by the Standards Act. Steps taken by the council in purchasing, testing and reporting were agreed by Black to be reasonable. It was fair to the manufacturers to be given a copy of the report of tests by an independent body. “Inference” In Report Asked what was defamatory in the report, Black said it was the inference that the company was breaking safety regulations and therefore producing dangerous goods. The assumption on which standard specifications were drawn up was that anyone might handle equipment, as distinct from repairing it. He agreed it was in the public interest that there should be high standards and quality in electrical equipment. The hearing will continue tomorrow.