Decision Reserved On Move To Have Writ Set Aside

Press, Volume CVII, Issue 31385, 2 June 1967, Page 3

Decision Reserved On Move To Have Writ Set Aside

(New Zealand Press Association) WELLINGTON, June 1. Mr Justice McGregor reserved his decision in the Supreme Court today on whether the former Minister of Defence/Dean Jack Eyre, could issue a writ in New Zealand in respect of an alleged libel in an Australian newspaper.

An ex parte order granting leave, to Eyre to issue a writ against Nation-Wide News Proprietary, Limited, Canberra, publishers of the newspaper “Australian,” claiming £30,000 for alleged defamation, had been granted by Mr Justice McCarthy.

A motion to set aside the order was moved today by the defendant.

Mr J. H. Dunn appeared for Mr Eyre and Mr I. L. McKay for the defendant. The statement of claim alleged as the cause of action that the defendant published

in the “Australian” matter defamatory to the plaintiff, Mr McKay said. The alleged libel consisted of comment on a reported statement by the plaintiff at an election address in Auckland last November.

The plaintiff alleged that the defendant’s newspaper had an external circulation in Australia and New Zealand, Mr McKay said. But only 21 copies of the issue concerned had come to New Zealand.

Because the defendant company was incorporated in Australia and had no office or place of business in New Zealand, the plaintiff had to get leave to serve his writ outside New Zealand. The ground for the present application was that in the exercise of the Court’s discretion leave should be refused because the substantial publication of the words complained of had taken place in Australia and not New Zealand.

Mr McKay said he conceded that some publication had taken place in New Zealand. The small number of copies of the newspaper sent to New Zealand was sufficient to bring the case within the Code of Civil Procedure. The Court nevertheless had a discretion in the granting of leave. Even if the action were allowed to proceed to trial it would be limited to publication of the newspaper in New Zealand and would not allow the plaintiff to claim or recover damages for publication in Australia. New Zealand courts had no jurisdiction to award damages against a defendant in respect of a tort committed out of their jurisdiction. It was open to the plaintiff to sue in Australia in respect of the much wider circulation there. Leave to serve a writ outside New Zealand should not be lightly granted. Any doubt whether the Court’s discretion should be exercised in a particular case should be resolved in favour of the defendant, Mr McKay said. Mr McKay said the defendant’s newspaper had a circulation of 66,000. The words complained of had a very wide circulation in New Zealand newspapers and against that background was the fact that the defendant sent 21 copies to New Zealand and they were quite insignificant If the action proceeded the plaintiff would be at liberty to bring separate proceedings in Australia. In reply Mr Dunn said the substance of the injury done to the plaintiff in New Zealand could not be judged by a mere comparison of the number of publications in New Zealand and those overseas. A comparison was danger- > ous. This was a case where I editorial comment had been

made by the defendant’s newspaper normally of a staid character. His Honour: 1 don’t know what sort of character it’s got. I haven’t seen it For all I know it might be gutter press, or of the highest standard.

Mr Dunn said the tone of the publication and the general circumstances of it were such that the libel was not an insignificant one compared with the New Zealand publications.

It was true that only a small number of copies had been sent to New Zealand but a man’s reputation was domiciled where his associates were.

The Court was not in a position to say publication in New Zealand was so small as to be insignificant. It was mainly the plaintiff’s reputation in New Zealand that was of concern to him and he felt a particular sense of grievance at the publication. Referring to the suggestion that the plaintiff might seek to increase his profits by further action in Australia, Mr Dunn said that had never been contemplated by the plaintiff. Counsel had been authorised to give an undertaking that he would not Institute proceedings in any part of Australia. From the plaintiff’s point

of view the damage had been done through publication in New Zealand and he was prepared to confine himself to that. <

The question of what the plaintiff said at the meeting in Auckland had to be proved by people resident in New Zealand and it seemed that the preponderance of evidence must come from New Zealand witnesses. At least from the plaintiff’s point of view it was a matter of grave importance to him and it had so far affected his whole future as a public man, Mr Dunn said.