Hearing Of Issue By Jury Sought

Press, Volume CVII, Issue 31440, 5 August 1967, Page 38

Hearing Of Issue By Jury Sought

(New Zealand Press Association) WELLINGTON, August 4. A motion was heard before Mr Justice Tompkins in the Supreme Court, Wellington, today seeking leave to have an issue to be determined before trial heard before a jury of 12. His Honour reserved his decision.

The motion was filed by the plaintiff in the actions in which Dean Jack Eyre, a former Minister of Defence, is sueing Wilson and Horton, Ltd., publisher of the “New Zealand Herald,” as first defendant for $50,000 damages for alleged defamation and, on similar grounds, $BO,OOO from Wilson and Horton, Ltd., jointly with the New Zealand Press Association, as second defendant.

The action arose from statements on Vietnam attributed to Eyre in a report published in the “New Zealand Herald” on November 24 of a political meeting addressed by Eyre at Devonport In June, Mr Justice McGregor, on the application of the defendants, made an order in the Supreme Court, Wellington, that the question whether an early alleged settlement amounted to a binding settlement of the claims should be determined before trial. His Honour also made an order staying proceedings in the matter until the preliminary question had been determined. • “Issue Of Facts”

Appearing in support of the plaintiff’s motion, Mr J. H. Dunn submitted that his client had the right to have the preliminary issue heard before a jury. “The case is one In which the reputation of the plaintiff is at stake,” said Mr Dunn. “The substantial issue is one of facts. It is not a case where there has been a memorandum of settlement”

The question whether the alleged settlement was legal or binding must depend on prior questions of fact as to whether there was indeed a settlement. The editor and assistant editor of the “Herald” said an apology had been accepted in settlement On the other hand, the plaintiff and his counsel said the question of settlement had not been referred to.

Determination of the question would involve an examination of the credibility of those witnesses and in view of the fact that they were people of some standing in the community, the determination might be a difficult one in which the Court would find it convenient to have the assistance of a jury. A Preliminary

Appearing for Wilson and Horton, Ltd., Mr M. E. Casey said he agreed with Mr Dunn that a case of alleged defamation should go before a jury, but this was only a preliminary matter which had to be decided before the case could go to trial. “The question of settlement is before the Court, not as an originating motion, but as an interlocutory application which does not attract trial by jury. This is not an issue, but a preliminary matter as to whether a cause of action does exist,” said Mr Casey.

In answer to Mr Justice Tompkins, Mr Casey said that the defendants sought a hearing of the preliminary question before a judge alone, or by cross-examination, by affidavits.

Mr H. Taylor, for the New Zealand Press Association, supported the submissions made by Mr Casey and said that the preliminary issue ordered by Mr Justice McGregor to be determined before trial was not one that should go before a jury. He said that even if it could be conceded that the literal

interpretation of whether there had been a settlement was for a jury, the final question whether in law there

was a settlement would be for the judge.