ALLEGED LIBEL

Evening Star, Issue 15539, 8 July 1914, Page 8

ALLEGED LIBEL

FAIRBAIRN v. ‘OTAGO DAILY TIMES.’ [From Our Own Reporter.] CHRISTCHURCH. July 8. The libel action Fairbairn v. the. ‘ Otago Daily Times ’ and * Witness ’ Company was commenced this morning before Mr Justice Si»i and a special jury of 12. The special jury comprised C. H. Gorton (foreman), J. H. Didd, H. L. Anderson. R. Congreve, G. L. , Donaldson, A. Freeman, R. English. J. Dunks, R. C. TodJiunter, R. D. Harman, C. T. Tumor, and I’. Waken. Sir John E'indlay, K.C., and Mr A. F. Wright appeared for the plaintiff, Andrew Fairbairn, of Christchurch, merchant, and Mr W. C. MacGregor and Mr Stringer, jun.. for the defendant company. The plaintiff, who with others carries on business under the style of Fairbairn, Wright, and Co., alleged in his statement of claim that he was a member of the Royal Commission on the Cost of Living; that on the 14th and 15th June, 1912, the Commission, sitting in Christchurch, heard the evidence of Cnthbert Bowyer, A. W. Jamieson, and others; that on the 15th October, 1912, .at Christchurch the defendant company published in the ‘ Otago Daily Times’ an article, of which the following is a copy ; —Faked Official Documents. — It is perfectly reasonable that in order to ensure an accurate record of what was said a transcript of the evidence which is given by witnesses before Royal Commissions should be submitted to them for revision before the publication of the official report, but the confidence of the ’community in the reliability of the authorised reports of the proceedings of Royal Commissions will be very seriously shaken if it should appear that, the record of the evidence upon which a Commission bases its findings is allowed, to be tampered with to an extent that involves a distinct divergence from or suppression of statements that were made on oath by witnesses in the course of their testimony. An examination of the official report of the evidence that was given before the Cost of Living Commission and a comparison of it with the newspaper reports of the proceedings during the sittings of the Commission in Christchurch have revealed, however, the fact that, whether with or without the sanction of the witnesses concerned, the official record is misleading and erroneous in the respect that certain evidence on a particular point has been completely suppressed,. This discovery has been made by the chairman of the Merchants’ Association, who, by the quotation of the newspaper reports, clearly establishes his point that liberties have been taken with that evi-

dence in the official record. One of the witnesses who were called in Christchurch to give evidence ns to the iniquities practised by the Merchants’ Association declared in general terms that the public-.received, none of the benefit of the remissions or reductions of duties on various lines of goods. This was a very safe generalisation, but when it

came to a matter of giving specific instances, the witness (Mr Cuthbert Bowyer) found himself on different ground. He committed himself, however, to the statement that although the duly on blue had been reduced by 2d per lb the price fell by Id only,—from to 7-jd—tho Merchants’ Association taking one-half of the reduction on the duty, and the Grocers’ Association taking the other half. The witness was unfortumale in _ the illustration he employed, since, as . a matter of fact, the duty on the blue was reduced by Id only, and tho fact, as stated by him, that the price fell by Id showed that the public received the full benefit of the reduction in tho tariff. The mistake into which he fell was pointed out in tlie evidence of Mr A. W. Jamieson, acting manager of the New Zealand Farmers’ Co-operative Association, who submitted to the Commission a lengthy statement that had been prepared by him. It did not, however, suit either Mr Bowyer or some members of the Commission that his blunder in this _ respect should be exposed in the official report of the proceedings, because obviously the effect was fo vitiate the. generalisation in. which he had indulged that the Merchants’ Association were appropriating for their members a concession that had been intended for the benefit of the public. Accordingly the course wm boldly followed of suppressing that portion of his evidence that related to the price of blue. There still remained, however, the evidence on the point by Air Jamieson, contraverting Mr Bowyer's statement regarding this commodity. This was readily disposed of, however, by tho simple plan of suppression. References in Mr Jamieson s evidence to the class of business done by Mr Bowyer and to the influence of ‘‘cutting” upon trade in general were similarly suppressed. Of course, this disclosure as to the manner in which the evidence given before the Commission on one particular question has been treated raises a certain amount of .suspicion concerning the value of the official record of tho, evidence as a

whole, and it must bp obvious that if fl.riy “faking” of the evidence tendered to a Royal Commission is permissible, the opportunities offered to a prejudiced Commission of making (lie recorded evidence suit the finding it desires to present are limitless. Clearly if the official reports of the proceedings of Roval Commissions are not to be untrustworthy there should bo no tampering with the evidence, whether in the way of amplification or modification nr suppression, unless, at any rate, a clear indication is given that_ the report lias been subjected to revision. It is interesting to add that the members of the Cost of Living Commission relied upon what they heard from Bowyer, among others, to justify the statement that the Merchants’ Association raised the prices of various commodities to the public ininir■f?lately they secured control of them. According to their report, “sworn statements of witnesses who are, reputable men of some standing in the community cannot he lightly brushed aside.” In the light of the fact that a portion of the sworn statements of one of these witnesses was struck out of the report of the evidence because it could 'not be substantiated, the passage we have quoted from the report of’the Commission reads somewhat quecrlv. Plaintiff alleged that by the above the defendant company meant that the Commissioners (including the plaintiff! had corruptly tampered with the evidence by suppressing certain portions, in order to make the evidence, as recorded, support their finding, and had thereby rendered their official report untrustworthy, and that the Commissioners had acted in connection with the report in an improper and dishonest manner. Plaintiff asserted that the publication was false and malicious.

For a second cause of action, the plaintiff said that on the- 10th June, 1912, in Christchurch, tho defendant published a letter signed “W. R. Gordon,” in which the following words occurred : If the Government are anxious to get at the facts, they can readily do so from the records. This, however, would not have suited the Socialist, and it would not have given Mr Fairbairu a chance to grind his axe; meaning thereby that the plaintiff had accepted the office of Commissioner for tho purpose of serving bis own private ends. For a third cause of action plaintiff said that on the 15th June, 1912, at Christchurch, the defendant company published in their paper a letter signed “ Merchant,” in which it was said :

Commercial travellers say that they cannot sell anything, or very little, to a company doing business in a Southern town, because all the purchases for that company are made through FairßSTPn, Wright, and Co. It is further stated by travellers that the company in question is owned by the Hon. Thos. Mackenzie, co that business relations exist between him and Fairbairn, Wright, and Cb., and that is why Mr Fairbairn was appointed a member of the Commission. Headers may feel inclined to think that Fairbairn, Wright, and Co. are working in. the combined interests of themselves

and the grocers, and not for the people generally, as FairbaUfn, Wright and Go. would have the public to believe. For a fourtji cause of acTion plaTnfiiT said that on the 15th June, 1912, at, Christchurch the defendant published a letter signed “L.R.W.," in whfcn these words occurred : Froiu the evidence taken in Dunedin any common-sense elector could see at once that the whole Commission has been appointed for the purpose of enabling only its members to attack his business competitors and to further his own lirm’s interests. On each cause of action the plaintiff prayed for judgment for £250. Particulars were, in .Tune of 1913. delivered by the defendant company. These particulars were to the effect that the statements complained of were fairly deducible from the' facts disclosed in the evidence before the Commission : and that as of the several causes of action, the defendant would at the trial allege to be statements of fact the words complained of as libellous. In the statement of defence as to the first cause of action, it was denied that the company published the article, and, further, that the words do not hear the meaning alleged by the plaintiff, but -that the statements of fact were true in substance, and the comments fair and bona fide comments upon matters of public importance. As for the other cause of action, the defendant denied that the company published them of and concerning the plaintiff, but that they were published as letters in good faith and without malice, in the ordinary course of business, the statements of fact being true in substance and ttib comments 'fair. The defendant also pleaded that. Ill© y.tiblica lions were privileged.

Sir .1. G. Findlay-, in the course of his opening, said tin*, subjects referred to th© Cost o! Living Commission were vital to tile interests o! th© community as a whole; therefore U was iinjiortant that those appointed to tlie Commission should be intelligent, impartial, trustworthy, and eager to carry nut to tho best of their ability the confidence reposed in them. Mr Fairbairn did not seek an appointment to the Commission. When asked by th© Prime Minister he said ho would rather not act. 11i.5 answer was intended to h© a polite refurel, hut the next thing h© knew of it was seeing his name gazetted, whereupon he undertook tho obligations of the position with th© intention of doing his best. The Commission took evidence at the four centres. No member of the Commission took down any evidence; all of it was taken down by official shorthand writers. Each witness was provided with a proof ou which to make verbal corrections, and then, if tho evidence was correct, lie signed it. What, then, could be said of a ch:irge that th© Commission tampered with the evidence in order to justify a preconceived idea, and so _ destroyed the honesty of their finding? Either that it was a. gross and scandalous libel, or that the person who made the charge had sifted it to tho bottom, found it absolutely true, and in justice to the community 7 deemed it his duty to make the charge. If such a thing could be done the confidence of the public in the Commission would be gone. Suppose a jierson saw a difference between the official report and the newspaper report, would he not conclude that one reporter or Die other had mad© a mistake? He (Sir John Findlay) submitted that a man who, with no more before him than a newspaper report, wrote that the Commission were a band of rascals—(for that war, what the comment amounted to—showed himself to be utterly unworthy of holding a pen with which to address Hi© public. Ihe evidence presented to the jury would show that the evidence given before the Commission was never- tampered with : not one single proof of tampering would he given to the jury. Tho evidence of Mr Bowyer was taken hy Mr Berry, who was a competent stenographer. Counsel submitted that Mr Bowyers evidence was returned by him without a. single alteration. Because there- appeared in a newspaper report a few lines extra about “ Reckitt’s bine" th© writer of the alleged libellous article launched his attack upon the Commission. When Mr Jamieson went into tho witness box he would testify that he also was accurately and fully but he had an afterthought, having omitted something he- thought he ought to have said, and.he went to the newspapers with it. That evidence, however, was never given before the Commission. The ‘Press’ dovetailed it by way of an addendum into their report; the ‘Lyttelton Times’ inserted it, but. with tho remark that it was a. supplied statement'. As to the second_ cause of action, the remark about, “grinding an axe” could only' be regarded as a personal accusation against Mr Fairbairn of accepting a position ou the Commission for the furtherance of his own private ends. Mr Fairbairn as a private citizen was entitled to protection from a charge of that sort. The statement in the letter about Mr Mackenzie was absolutely untrue. It was untrue that the firm referred to—tfie Import Company—got all their goods from Fairbairn, Wright,and Co. It was, moreover, absolutely untrue that the company (the Import Company, which, carried on business at Balclutha) was owned by the Hon. Thomas Mackenzie. _ Th© head of that firm would testify that he "bought his goods wherever he could get them, cheapest. The proportion, bought from Fairbairn, Wright, and Go. did not exceed one-eighth of his purchases. Mr Mackenzie had a small share in the busi-ness—one-fi.rrth. He (Sir John Findlay) understood that one or two of his som had an interest in the business, but Mr Mackenzie himself had nothing to do with the. management, and had not had for years. If'what was alleged against Air ‘Fairbairn in the letter was true, he, ought to b© hounded.out of Christchurch. sir Faii-bairn's solicitors might have issued a writ at once ; instead of that they wrote to the ‘Otago Daily Times’ informing it of his intention to take proceedings. The unit was not issued for months, during which time the 'Daily limes nad opportunity to impure whether an injury had been done, and its only reply 7 uas, in effect, referring Mr Fairbairn to their nun of solicitors. Sir John Findlay, in conclusion, said the only questions to be put- before tho jurv were, whether Mr Fairbairn falDod and tampered, with the sworn testimony, and whether lie sought the posjtioi, to giind his own axe ” and attack trad© competitors. He (Sir John) would lead evidence on those lines, leaving out the reference to the Merchants’ Association and their methods, with which they had nothing to do. Miss Rout, authorised shorthand reporter, deiKired that she was one of the re|KU-t©r© to tlu? Cost ot Living Commission. She renorted Mr Jamieson's evidence. and submitted it to Mr Jamieson for verba! correiuops. Milners produced the original transcript, and assorted tiiat it contained absolutely all Jamieson said. So far as she knew there was no difference be- | tween her transcript and what was actually | [irinted. „ , , 1 f To Mr MacGregor : it.no had charge ol th© Christchurch evidence, and sent it all to Mr Collins, clerk of the Commission, who were then at Auckland. In all the towns where the Eommrssiou sat people talked about the discrepancy between the official and th© newspaper reports. She did not bother about such, matters. I lie official report must be very reliable, because the official reporte’ - could pull up a witness at any time, and was in th© best position for hearing. _ Tho evidence was perused, by witness before being given to anyone. To Sir John Findlay : Th© statement by Air Jamieson about Reckilt’s blue was not made before tire Commission, and was not printed as such in the ‘Lyttelton Times.’! Th© same statement appeared in the j ‘Press’ before cross-examination, and in such a way as to make it clear to a journalist that it did not form part of the reporter's record of the proceedings. Neither of th© evening papers had any | mention of Reekitt’a blue in the report, of Mr Jamieson’s evidence. I

Professor Highet deposed that. he was appointed to the Cost of Living Commission on the 7th of Juno to fill a vacancy. He was present, at every sitting from the 10th of June to the sth of August. He was a party to the report issued. He had no recollection of Jamieson making the statement attributed to him about blue. No proposal to suppress, modify, or add to any of the witnesses’ evidence was ever mentioned, so far ae witness knew. No “faking” or tampering took place. Ho would specifically deny that Mr Jamieson's vadmat wa* “ Med.*

Sir John ifedlay asked th4eoff what meaning he took from the Eon “grind his axe." I His Honorls that iwt a fWfor the jury’ You may ask him if Wstood it to refer to plaintiff. - j Witness said ho understood tbl-f* fereno© to serving his own ends Fab-bairn. ! To Mr MacGregor: H never och 0 him that Mr Fairbaim, as Comitwas attacking Ms trade competing,, was await- that Mr Fairbairn h| s chargee against the Merchants’ Asa L Mr MacGregor: Don’t ypnx tnoUa number of newspapers opinion that it was an indecent have Mr Fairbairn ou the OommiU, all? ! AV itness ; I believe oue or two sail, thing of the sort. \ Mr MacGregor; You look yeni when Mr John "Ross resigned? Witness; Yes. Mr MacGregor; Don’t you kno' Mr Ross resigned when he saw th position of the Uomniissian? Witness: N©.