ALLEGED LIBEL

Dominion, Volume 33, Issue 43, 14 November 1939, Page 5

ALLEGED LIBEL

Claim By M.P. For £lOOO Damages NON-SUIT REFUSED An application by the defence for a non-suit was refused by his Honour, Mr. Justice Johnston, in the Supreme Court, Wellington, yesterday, when the hearing of the £lOOO libel action brought by John Robertson, M.P., Dominion secretary of the New Zealand .Motion Picture Exhibitors’ Association, Inc., and editor of that organization’s official organ, the "Bulletin,” was resumed. Defendants are two film exhibitors, Garnet Hornby Saunders. New Plymouth, and Harry Thompson, Napier. Saunders, the first witness called by the defence, was in the box when tiie Court adjourned till this morning. Mr. J. S. Manna is appearing for plaintiff, Mr. O. C. Mazengarb for Saunders, and Mr. J. Mason (Napier) for Thompson. Constance Lilian Guy, the first witness called yesterday, said she did Robertson’s Parliamentary work in conjunction with the association s woik. Explaining how she received the biographical notes on the candidates from Mr. Stewart, and how defendants names were omitted from the list of candidates in the "Bulletin,” witness said the day in question was the opening of Parliament and the copy had to go to the printer that night. Robertson was absent from the office and Mr. Stewart sent the notes along late m the afternoon. Robertson had previously prepared a heading which she was to attach to Mr. Stewart’s notes. She pasted it on for the reason that there had been a lot of previous trouble with the printers who had been leaving out stuff and printing it on a wrong page. Therefore, to make certain that anything was not left out in such an important issue she decided to paste it on, but unfortunately the printers neglected to turn over to the second sheet, ou which were and Saunders’' names. When she discovered their names had been left out she rang the printers and said they would have to get out a supplement rectifying the error, and it would have to be done at (heir own cost-

"Everything Quite Happy.” Mr. Mazengarb (cross-examining): 1 suppose it would be fair enough to say Mr. Saunders had always been on good terms with Mr. Robertson? Witness: Till this occurred everything, as far as I could see, was quite happy.

That was not only m business matters but they were friendly in other ways, too? —I don’t know anything about their lives outside the office. 1 think you know of occasions when Mr. Robertson has been criticized and Mi\ Saunders has defended his actions? — My duties are purely secretarial, and I don’t take much notice whether there is a tight or not. Mr. Mason cross-examined witness briefly. , . , Arthur George Warburton, journalist, Te Awamutu, in bis written statement said-he was the printer of the "Bulletin. He described how the sheets had become stuck together and how Thompson s and Saunders’ - James had been overlooked. Austin Patrick Campbeli, motion-pic-ture exhibitor, of Pongaroa, said he received a copy of the "Bulletin and to him the omission of the names was obviously a mistake. Mr. Hanna (referring to the open letter which witness received): Does that letter hit anybody? Mr. Mazengarb objection to the question. His Honour: You could say Does it refer to anybody?” _ Mr. Mazengarb: With respect, J. submit not. The authorities are quite clear on the matter. His Honour: I admit the question. Both Mr. Mazengarb and Mr. Mason asked that their objection to the question should be noted. Robertson McGregor Stewart, secretary of the Film Exchanges Association of New Zealand, was the next witness. Mr. Mazengarb: Frankly, you are not very friendly disposed toward Mr. Saunders? Witness: I am very friendly disposed toward Mr. Saunders. I have not had occasion to be otherwise.

After George Frederick Parker, Wellington, theatre proprietor, had given his evidence, plaintiff was recalled. To Hr. Hanna he said it would be definitely incorrect to say he had fixed the date of the election. The returning officer had ihe whole conduct of the election in his own hands. That concluded the evidence for plaintiff. .Motion for Judgment. In moving for judgment lor defendant Saunders, Air. Mirzeugarb, said that for convenience it could oe taken as an application on behalf of defendant Thompson in addition. There were three grounds for the motion. The first was that the ■words compiained of were not defamatory of plaintiff; secondly, even if they were, the occasion was a privileged occasion, and thirdly there was no evidence of malice. Dealing shortly with the first ground, Mr. Mazeitgarb said it was clear, and was clear to everyone, that plaintiff had not written the offending biographies, but had arranged tor someone else to do it. In regard to the expression "intrigue,” there was no allegation or suggestion that plaintiff was involved in any intrigue. .Robertson himself had said "1 don t think, when defendants wrote the open letter, that they believed there was anv intrigue so far as I was concerned. Before there could be any innuendo spelt out of the letter the facts must be known both to the writer and the receiver of the letter. After quoting legal authorities on those points, Mr. Mazengarb said defendants knew of . no intrigue in which Robertson was involved nor did the receivers, so how could the words be defamatory On the question of whether malice could be proved extrinsically or intrinsically, Mr. Mazengarb said that as to intrinsic evidence, Robertson admitted they were on friendly terms and that he had been loyally supported by Saunders on most occasions. There was a complete absence of evidence that the statements in the open letter were untrue to the knowledge of defendants, and it was quite dear in Robertson's mind that defendants did believe what they had said. The question was whether in bis Honour's judgment it was possible for defendants to believe that what they wrote was true. Mr. Mason, addressing his Honour, said that so far as Thompson was concerned he would like to draw attention to the evidence in which Robertson said he had known Thompson for some time and they were good friends. Mr. Hanna quoted from text-books on the question of privilege. It was one thin- to point out a blunder but quite another thing to make an accusation of "filthy intrigue.” be said. That was unconnected and irrelevant, and as irrelevant matters had been introduced the occasion was not privileged. Mr. Hanna submitted that there had been very definite malice, and that violent language had been used. His Honour said that as counsel knew it was his task to say whether the words were or were not capable of a deiamatory meaning, but as to whether they were used in a defamatory sense was a matter for the jury. In his Honour's opinion it was impossible to argue, taking the letter as a whole, that it was not capable of a defamatory meaning On that ground the motion would not be given If the occasion were privileged, continued his Honour, plaintiff must prove malice in order to succeed. The circular letter was sent by two members of an association to other members, attacking, it might be considered by the jury, the character of the secretary of the association, and the editor of its official publication. It was an occasion when an. election was taking place, and al] three parties were candidates. Therefore, the

reciprocal interest of the parties covered a very wide compass, and it was very difficult to take out any part of the letter and say it was not a privileged occasion. His Honour said he thought there was no question that the occasion way a privileged one. The next and more difficult question was whether there was any evidence of malice lit to go to the jury. Attached to the interests of the association was the hot-bed of the election, with invective, abuse, and statements which were not the interest of the association ■ but ot the individual candidates. If statements were made with a motive other than the real interest of the association, then it would be an improper motive and would be evidence of malice

“In this particular case,” said his Honour, "you have what might be considered by the jury to be a reflection on the character of a man of a serious nature in the sense that no honest man would willingly eliminate the names of the candidates., No oue but a dishonest person would be capable of such an act.” One could not overlook the fact of the circumstances of the election, nor could one overlook that the jury might consider the language far in excess of what was necessary. and made not in the interest of the association, but in their interest as candidates to attempt to discredit plaintiff as a candidate His Honour said that following the arguments of Mr. Hanna, he must not take the case away from thi jury but would leave it to them to deter trine if there had been malice or not. Or. those grounds the motion for judgment for defendants would he refused. In his address to the jury Mr .Mazengarb s-aid the defence was not that Robertson did something to defendants’ prejudice. but th'- defendants acted bona fide, feeling that someone had acted to their hurt or ill. The first witness called by the defence was defendant. Saunders, who was.still in the box when the Court adjourned at 4.30 p.m. till 10,80 ami. today,,