Plaintiff cross-examined in defamation claim

Press, Volume CXII, Issue 32966, 12 July 1972, Page 21

Plaintiff cross-examined in defamation claim

The hearing of a claim for general damages of $7500 by Hamish Henry Gordy Keith, of Auckland, a writer and broadcaster, for alleged defamation by the Christchurch Press Company, Ltd. continued in the Supreme Court yesterday before Mr Justice Wilson. The hearing is expected to conclude today.

Messrs M. E. Casey and J. G. Miles, of Auckland. appear for the plaintiff and Messrs J. G. Leggat and J. E. Ryan for the defendant company which has denied liability. Under cross-examination :by Mr Leggat, Mr Keith agreed that his point of criticism of “The Press” in his ■ “Column Comment” on October 12 was that it had failed to deal with two important matters in the local body elections —the road through Hagley Park and the site for the Commonwealth Games. Mr Keith agreed that in the months before the local body elections the two issues had been thoroughly covered by the news media but his criticism of “The Press” was that it did not put the issues in a way which related to the election. Witness admitted that he had stated in “Column Comment” of October 12: “On Wednesday ‘The Press’ headlined its view of the Christchurch campaign and it begins the story by putting both the Games site and the road issue aside. Just how many major issues does a i local body campaign need to produce debate and provide alternatives? If we are apathetic about local government, then any newspaper should make the most of subjects that seem to arouse public interest.” The issues Mr Keith said that he stood by that comment which was based on the headline: “Few major issues divide parties.” Mr Leggat read the opening sentence of the story: “Apart from the issues of the Commonwealth Games athletics and swimming venue and the road across Hagley Park . . .” Mr Leggat: Do you mean to interpret that heading and introduction as “The Press”l putting aside the two issues?: —Yes I think the comment is ■ fair. Mr Leggat referred the. witness to the front page of “The Press” of the previous day, which had a lead story, headed. I‘lnterest suggests i higher poll,” and which out-: lined the issues of the park road and Games site. Mr Keith said that he must have read the story before he ! recorded “Column Com- ■ ment” but he did not see: that it altered the validity of his criticism. He did not think that “The Press” was' giving the issues the careful airing he claimed they should have had. Witness agreed that “The Press” drew attention to the two issues four days before the election. What was “The Press” supposed to do on its front page on October 5 that ‘would not have been simply repetitive?—l would not have objected in the slightest i had it been repetitive. I : would like to have seen a i complete analysis in a readable form of the issues inIvolved and the reasons for . them. “Not mistake*' Mr Leggat: I invite you as a matter of common sense to : agree that your comment was simply a piece of dissembling conduct on your part when you knew that the issues had' been treated in this way the day before the verj’ headline you showed viewers?—l cannot agree. I can only emphasise 1 criticised this headline and an editorial on the same matter. I do not consider it was a mistake. It is not a mistake to say a paper didn’t do something when it did?—l am sorry I do not consider it to be a

[mistake. I think the assessment still holds good in relation to the page of October 6 and the editorial of October 15. Would you blame the writer of the article in “The Press” of October 5 for feeling this sort of burst you gave him wasn’t warranted?— l would be sympathetic to his opinion but I wouldn’t agree that it wasn’t warranted. I would have discussed it with him had he offered to do so. And shown him the error! of his ways?—He may per-! haps have shown me the error of mine. You didn’t seek any com-! munication when you felt un-l fairly criticised by “The Press”?—There was an ex-| change of letters between our I solicitors. Saying you were issuing a: writ?—Yes. Mr Keith agreed that his! counsel had said there was! no retraction by “The Press.”! Letters to editor You were offered the free-i dom of the columns of “The! Press” to make your reply?— I understood that I was! offered space in the letters! to the editor. Even that was a form of I discussion wasn’t it?—No, not! in my experience. His Honour: Isn’t it a basic! understanding that the correspondence columns of the; daily newspaper are the most! widely read of all?—Yes, I what I mean is that I was I offered no more than was! available to any reader of the paper. Mr Leggat: That is not what the letter sent to you. said— That is what I understood. But while you say you did not regard that as a suitable form of communication I would have thought that it was one of the best opportunities to publicise your complaint—ln relation to a leading article of 12 inches or| thereabouts I didn’t consider] it so. You don’t think that “The Press” would have cheated on! that offer by offering you inadequate space—l don’t think so. You know perfectly well that the offer is commonly accepted on terms that comparable space and publicity is given to the correction as to the publication?—That was not my understanding nor could I interpret from the letter that “The Press” was! offering to publish a correc-! tion. If not a correction, a re-i joinder of equal prominence and equal position?—lndeed I would probably have accepted the privilege of writing a leading article. Equal prominence does not! mean an identical position! in the editorial column, said! Mr Leggat. You didn’t explore the offer! at all as you were hell bent] on getting a writ issued? —i I don’t believe that is true. I I was hell bent on having | redress for what I considered! was an attack on my| credibility, honesty and com-] petence. Mr Keith agreed that the; letter from his solicitors on October 27, written on hisl instructions, did not make) any request for an apology, I withdrawal or anything at all! by way of redress. Mr Keith | said that in his opinion an I apology, unless it was given! personally to every reader of j “The Press.” would not have; been adequate compensation! for an attack of that] seriousness and damaging! nature. Do you suggest the editor ! should become an itinerant! round his readers? —To pub-! lish an apology is one thing; ! to make sure it goes to ' places where the damage is! done is another. I don’t j believe a retraction fori defamation so serious is I adequate. Apology not sought 1 You never sought an | apology or comparable action I before setting out bn this! action? —It was the advice I had and the decision I came to in relation to the extent of the damage of the leading article. In view of the attack made on myself I found it impossible to imagine that any substantial apology would be made. Mr Keith said that he agreed with his counsel’s assessment of “The Press” that it was a newspaper of i undoubted standing and that' had an apology been agreed! to that the paper would have > honoured it in full. Witness! accepted that the editor of! “The Press” was as highly regarded as any man in the newspaper profession in New Zealand. Mr Keith agreed with Mr Leggat that the second editorial in “The Press” on October 23 was a serious discussion of the traffic problems which might ensue from the election result. Mr Keith agreed that he complained that the main editorial attributed to him incompetence, ignorance and prejudice, bias and deceit—the matter seemed so gen-! eral as to apply to anything he might do in the field of comment. He had never believed that! “The Press” did not have the! right to express its opinion,! Mr Keith said. He agreed that if “The Press” inferred from the tele-! vision programme that he

did not understand that the news columns were the place for facts and the editorials the place for opinions, then the newspaper was entitled to criticise his ability, Mr Keith said. He felt the comment in “The Press” was not honestly given—he found it went far beyond the bounds of an honest expression of opinion on a performance. Editorial sentence He felt the article attributed ignorance and prejudice to him, although he accepted as a general comment the sentence in the editorial that “The eye it (the N.Z.8.C.) employs for the purpose (of running a critical eye over some of the country’s newspapers) should be informed as well as critical, not an eye clouded by ignorance or prejudice.” He said he felt “The Press” had said: “He is not ignorant, he only feigned it so that he might propagate his views.” He was sensitive, Mr Keith said, as was any person in his position as a commentator. But he did not regard himself as above criticism. Mr Keith said he felt the editorial’s reference to his Labour Party' background was irrelevant, and that the inference was unfair and unjustified. He believed the inference was that he would allow his political sympathies to distract him from the job he was paid to do. To Mr Casey, Mr Keith said he had never held himself out to be a journalist. Mr Leggat when opening the case for the defence said that the claim was an unrealistic one brought by a person who had demonstrated that he took himself far too seriously, and had shown naivety and an ignorance of the facts of life for a person in the realm of comment and journalism. Mr Keith’s background of journalism was very shallow, and even put beside the background of his fellow commentators on “Column Comment” was light-weight. Throughout the whole of the events leading up to the case Mr Keith had misunderstood the legal distinction between fact and opinion, and the construction which he had put on matters which he claimed were defamatory could only be achieved by “verbal acrobatics.” Three headings “The Press” took its stand squarely behind its article, Mr Leggat said, and said it was justified in law under three headings:— These were that it was fair comment on a matter of public interest, such expression being based on facts correctly stated and published without malice. Second, it was submitted 1 that the comments were published on an occasion of qualified privilege in two respects — first, in the legitimate protection of the newspaper’s own interests, and second, which was also the third part of defence, that the comments were published on an occasion of qualified privilege in that the defendant and the public had reciprocal rights and duties to publish and receive the material complained of. It was submitted that Mr Keith had launched a vigorous attack delivered in a manner which was confident, not to say cock-sure, Mr Leggat said. It was submitted that if Mr Keith chose to initiate such an attack he could hardly complain if he got back a forthright reply. The leading article in question was written by the editor of “The Press” himself, which was not always the case, Mr Leggat said. He was a person of 44 years’ experience in journalism and the article was written after due and mature reflection. Mr Leggat said that when Mr Keith complained he had been defamed, he had done nothing to say “what are you going to do about it?” He could have expected and would have received exactly the same space and prominence to answer the charges. But he issued a writ for an enormous sum. There was very little room for any discussion at all, and he behaved in an intemperate wav. The Court had been told that the ending of the “Column Comment” programme had nothing to do with the action or what led up to it. The newspaper circulated in and around Christchurch and Mr Keith lived in Auckland. Mr Leggat said. The claim for $7500 was as wild as the claim of $25,000 virtually the day after he came to know of the claimed defamation. If the Court accepted the the absence of malice, then that was an end to the matter, Mr Leggat said. Editor’s evidence Arthur Rolleston Cant, editor of “The Press” said that he had held that position since 1957 and had spent 44 years in journalism on the staff of “The Press.” Before his present position he was associate editor from 1949 and from 1946 to 1949 was a leader writer. Mr Cant said that he was a member of the board of directors of the Christchurch Press Company, Ltd, and the

iNew Zealand Press Associa-: tion. I For the 44 years he had ! been associated with “The Press,” Mr Cant said, he was •not aware of any iibel action ]or threatened libel action • against the paper based on 'an editorial until now. He rej cognised the need on the one hand for freedom of the press and on the other for the protection of the individual.

Since he had written the leading article which was the subject of the action, he had re-read it several times, said Mr Cant. He did not wish to make any alteration or modification to it and he had not become aware of any misstatement of fact upon which anything in the article was based. Before the action, Mr Cant said, he knew the plaintiff only vaguely. He knew that he was an art critic and that he had been an unsuccessful political candidate.

Mr Cant said that he watched “Column Comment” very infrequently I because he was workling most evenings. By | chance he saw the programme of October 19 when he was at home for dinner. He understood that “Column Comment” was intended to be a survey by some competent journalistic observer of the performance of newspapers in their duties and responsibilities to the public. I Earlier programme It had been reported to him • that in an earlier programme Mr Keith had had a good go at newspapers in general and “The Press’ in particular for neglecting coverage of the municipal elections because of their preoccuption with advertising and advertising supplements. Commenting on his reaction to the “Column Comment” programme of October 19, Mr Cant said that he felt it gave a highly adverse impression ,of “The Press.” It chided the paper for its editorial opinions and also harked back to a previous programme which criticised the paper’s supposed failure to cover the election issues.

“I regarded this as quite unwarranted by the facts and Mr Keith produced no facts to support his assertions. It was my belief that this “Column Comment” session was very unfair to “The Press.” "I was aware that about one million viewers watch television about this time and knew that this adverse impression would be conveyed to a lot of people who had no knowledge of “The Press” as a newspaper and who would have little or no knowledge of how the paper had reported the election issues,” said Mr Cant.

“It was quite incomprehensible to me that anyone with a close knowledge of journalism should be astonished that a newspaper should express its own opinions in its editorial column,” Mr Cant said. In the course of the next couple of days he discussed the programme with members of the staff who had seen it and with persons outside the office. He reached the conclusion that a reply was called for in an editorial and he wrote it on the Thursday evening for publication on the Saturday morning. Mr Cant produced a folder of pages from “The Press” between August 20 and October 9 which contained more than 1500 inches of material associated with the elections.

Mr Cant was still giving evidence when the Court rose.