LAW REPORTS.

Dominion, Volume 5, Issue 1438, 13 May 1912, Page 3

LAW REPORTS.

ACTION FOR ALLEGED LIBEL. " li b STAGPOOLE-PIRANI. PRELIMINARY PHASE OF IT. No decision was rivcu on Saturday in the application for change of venue in the. case of Stagpoole v. I'irani and Mills, j' ; a claim for dnnia.ws for alleged libel. ■ The summons for the change was issued by the defendant (I'irani), and argument ; on the question was heard in the .Supremo a Court on Saturday morning, before Jlr. R Justice Cooper and Jlr. Justice Chapman. Mr. A. W. Blair appeared in support J, of the summons, and Mr. 3f. Myers ap- j peared for the plaintiff, who raised op- f, position to the application. " Mr. Blair conceded that, although the ]: change asked for was from I'almerston North to AVanganui, he could not sue- ~ oeed in having the venue changed to lj Wanganui. ' Mr. Justice Cooper agreed that if there was to ba a change it must be to Wei- j lington. ' li Mr. Blair said that in addition to Pira- j ni's own statement, there were affidavits a filed by three well-known residents of Palmerston declaring that Pirnni was politically unpopular in that town, and that . tho Stagpoole ense had been the subject r of great controversy and discussion. , Pirani had been, so to speak, leading !; counsel against Stagpoolc. Against the '' affidavits mentioned there were some nine others by Palmerston residents, who 9 stated that so far as Pirani's political \ views were concerned, and any question j of enmity between Palmerston and Fcild- j; ing, there was nothing in the allegations. Mr, Justice. Cooper pointed out that it u was only necessary to show that it wa! improbable that a fair trial could J; be obtained, not that it was impossible. t Continuing his argument, Mr. Blair ;• drew attention to the fact that not one j of the citizens, who had made affidavits j, in roply, impeached Pirani's statement i that his attitude in the Stagpoolc case had been the subject of considerable feel- <j ing. It was practically uncontradicted in ■ these affidavits that tho minds of tho ( people, had been" considerably inflamed 1 against Pirani on account of the Stag- " poolc case and the comments thereon. This t action was really , another phase of the ; Stagpoole case. 'Stagpoole was having an- t other shot to have, his grievances re dressed bv a partial jury. 1 Jlr. Myers: I don't admit that. Iho l action is one for libel on a specific state- c ment of making a fraudulent return. i Jlr. Blair went on to refer to newspaper c comment, pointing out that some of it .- had been as strong against Pirani as the 1 other had been in his favour. Mr. Justice Chapman said that where \ excitement prevailed, what was to be f feared was disagreement of the jury. _ t Mr., Justice Cooper expressed the opinion | that a newspaper controversy in a com- < parativly small district was more likely | to prejudice the people than wasa simi- ; lar controversy in a larger district. . ( Jlr. Blair contended that, from the long , reports of the interlocutory proceedings that had been published in the papers, , the natural inference was that interest j in tho matter must be very great. , Jlr. Jlvors submitted that tho onus of , showing "that it was improbable that a , fair trial could be obtained in rainier- ( aton was upon defendants. He contended < that no reason had been shown for tho \ change of venue. The alleged libel was , mainly in the head note of a leading , article, and like the statements in tho j article, must bo justified as a statement of fact. . . .. i Mr. Justice Cooper: The defence is jush- j licntion. ; ■ Jlr. JFvers said that the issue then , was whether Stagpoole was guilty of fraud j in sending a certain return to the Educa- j Hon Board? Change of venue could not , bo granted unless counsel for defendant ] could show that the feeling was so strong , in Palmerston that jurors there = were | prepared to wilfully find against Pirani, j even though lio might justify himself. . The change of venue might mean a great '. injustice to Stagpoole, who was not a wealthy man. Assuming that the feeling , existed, surely Pirani could not complain : if he himself had helped to raise it. The statement that Pirani could not ( obtain a fair tr'hl in Palmerston was, Mr. Myers contended, more likely to : operate" in'his favour than against him. | For the Palmerston people would be anxious to show that, they could be honest ' and fair. Finally, Mr. Myers said ho would agree to a special jury in Palmerston so thnt there would bo a, greater choice of jurors. Mr. Blair explained that he had no ' power to agree to this, but he would communicate with instructing counsel on the point. , Their Honours referred Mr. Myers s offer to Jrr. Blair, who promised an early answer. Jn tho meantime the application stands adjourned. CORRECT PROCEDURE. .WHEN CLIENT IS ILLITERATE. Law practitioners and others will be interested in a point of civil procedure decided by Jlr. Justice Cooper in a reserved judgment delivered in the Supreme Court on Saturday. The case was that of Ereni To Awe Awo v. Jloffatfc, a summons for leave to deliver interrogatories. The application was made under Rule 13G, which says that application for such leave shall bo* made upon an' affidavit of the party ■ proposing to interrogate or his solicitor . or agent, if, from absence or other unavoidable cause, such party is unable to : mako lhe affidavit himself. In the case ! under note Iho application was made by plaintiffs solicitor, Jlr. Hankins, as plaintiff herself is illiterate and blind. Jlr. C. H. Treadwell, instructed by Messrs. Hankins and Fitzherbert, appeared in support of the application, and Jlr. A. W. Blair, instructed by Jtr. P. E. Baldwin, appeared for tho defendant and opposed the application. After referring to tho foundation of the rule, his Honour expressed tho opinion that the affidavit should state the reason why the party proposing to interrogate did not make the affidavit, but tho ab- ' sence of such statement would not mako the affidavit defectivo if tho reasons Irecame apparent during the proceedings. In this particular case his Honour held that tho facts that plaintiff was an aboriginal Native and illiterate and blind were sufficient grounds for holding that she was from "unavoidable cause prevented from .herself making the affidavit. "Tho person best qualified to mako tho affidavit in such a ease as tho present, continued his Honour, 'is undoubtedly the solicitor for tho party. It would m my opinion be improper to require this Maori woman, blind and illiterate, to swear a technical affidavit, which she would evidently ..be unable to understand and this is sufficient, as I . have said to constitute, such 'an unavoidable cause' ns to entitle her solicitor to make the affidavit himself. Mr. Blah- stated H at Mr Justice Chapman had decided an nbiection of a similar nature and struck 0,, tie summons, but Mr. Blair was unable to givo mo further information, and there is no report of such decis.on. I have, at Mr. Blair's request, consulted Mr. Justice Chapman, who has no recollection of having decided the.point. Be however, authorises nio to state that ho agrees with my judgment in this case. Arcordin"lv au ordor was made as waved, the interrogatories fo be answered £ ten days. Costs, JS 25., were allowed.