SUPREME COURT.

Hawke's Bay Tribune, Volume II, Issue 251, 26 September 1912, Page 6

SUPREME COURT.

NAPIER. [ CIVIL SESSIONS. THURSDAY. SEPTEMBER 26. . (Before His Honor Justice Edwards) ALLEGED LIBEL. i GORDON v. NEW ZEALAND ■■TIMES.” CLAIM FOR £1560. In the Supreme Court this morn-, ing, before Judge Edwards and a special jury, a case was heard in which F. E. A. Gordon, poultry ex-■ pert, sued the New Zealand “Times i Newspaper Company for the sum of | £l5OO for alleged libel. , _ j Mr. Dolan appeared for ,the p.a:n-; tiffy/and Sir John Findlay. K.t .. with him Mr. H. B. Lusk, for the defence. The following special jury was empanelled :—S. Kelly, S. McLernon, W. 11. Tiley. C. Canning. A. Foster, R. D. Sweetapple. G. Cox. i G. Kellv. F. H. Lockyer, W. Kinross White. W. P. Finch, and A. Hunt. Mr. McLernon was elected foreman. Before starting the case the claim was amended to a claim for £lOOO upon the first cause of action and £5OO upon the second cause. The alleged libel was said to be contained in poultry notes in the “Times. Mr. Dolan, in opening the case for; the plaintiff, read the extracts from! the “Times” columns. Fie held that I the remarks, of the “Times’’ applied) to his client, and wore calculated to j show that he was guilty of dishonest practice, and that he was not qualified to carry on the business of a poultry expert. He had been called a “waster,” a “plucker of mugs,” “a man who was doing harm to the poultry industry,” “a self-appointed expert,” “one who played upon the gullibility of the unwary,” and the “Times” had said that his system was a sham. The paper, in its statement of defence, denied all the allegations ; they denied that Gordon was a poultry expert ; they denied that he was a contributor to most of the foremost poultry journals of the world ; they denieel that the article referred to the plaintiff or in any way to his business ; they denied that the words complained of were published falsely or maliciously, so the plaintiff would have to prove that they applied to him. The paper contended that the article was not defamatory, and that even if the words were, they were justified, and i if it were proved that they applied to the plaintiff they were true in substance and in fact, and that the opinions expressed were fair comment, made without malice and for the benefit of the public. They pointed out that plaintiff had on one occasion tested the same hen twice without knowing it, git ing in the first test 240 eggs and on the second 150 eggs. At another occasion .".e had tested the same hen three times over unknowingly. This the plaintiff absolutely denied. Gordon had published a work on the poultry industry with the utmost good results. If the defendants desired to show that the secret system supplied by Mr. Gordon was worthless, they should show that any purchaser of the system was dissatisfied. If it was proved that Mr. Gordon had been attacked in the way suggested, he was thoroughly entitled to have awarded him all the damages claimed. Evidence was then called. I Charles Martin, accountant, gave evidence that lie held an interest with his brother in a poultry farm at | Auckland. H chad seen the article I complained of and which appeared | in the “New Zealand Times” of; April 4, 1912, and he took it to refer to plaintiff, because there was no j other expert in the colony to whom i the article was applicable. Plaintiff j resided in the Taranaki district and ' the article referred to, “a well-! known Taranaki poultryman” ; (2) “a poultry expert of great volubility who had for sale a wonderful system of selecting layers.” He had also seen the article appearing in the “Times” of April 19th, 1912, and ; thought it referred to plaintiff, be-) cause the system was the same price I as Mr. Gordon’s (£2) and had the same number of pages. Witness had paid £2 for a copy of the book containing the system. The book (pro-

dated) described the system. A copy of the system was handed to each juryman. Continuing witness said in the be- : ginning of the book, the system said I that it claimed to be equal in theory ! and practice to the best in the world i and he challenged anyone to dispute i his claim to such. That ‘ established !to his mind the identity of the plain- ! tiff. When witness purchased a ■ copy of the system. he signed a j paper Binding him to secrecy. He : had run his poultry farm on the sy i tern outlined in the book, his brother 1 acting as manager. He paid £2:2;for the book, and £.3 3 - for a plan of poultry houses. To Sir John Findlay : His training : had been that of an accountant and his brother was an expert poultryman. Witness was in the employ of i Hartley and Hartley, Auckland, a : arm of importers, and had lived in ■ Auckland for 18 years. He had never ' lived in the Taranaki district and did not know its area. The words in t the article were that "a well-known poultryman was visiting our (Tara- ■. naki) district.” He took it to refer : to plaintiff. He also identified plainiitf by the word ‘"volubility,’’ because maintiff was voluble when speaking ' ;■> poultrymen. He thought the price ' of the system was not high to one who had used it. He could not swear ! that there were not other secret tests : • in the Dominion, but he had not seen ’ ' any. He did not know that others | ! were being sold in the Taranaki dis-; ■ triet at the time. He was sure that i ; the first article referred to plaintiff' i before he read the second. Witness paid I'2 for the book and 13 for the »lan«. ami signed the secret bond. .Sir John Findlay produced a copy of tlie book, which fixed the price at .. - fm- th? system and plans. Witness then admitted that re ! ad paid I's 5 It witness had not seen the system he would not have kn<>wn that the article referred to i .1 a mt iff. His Honour asked the witness j v.liv his brother had not come io

New Zealand, seeing that he v- nS manager of the farm and had used the system.

Witness replied that he had had ■ longer experience than his brother. ' William Charles Davis, poultry ’ farmer, Napier, said he had read the i first article complained of. and thought it referred to plaintiff i (Gordon) because of different refi-r--i cnees, and taking the letter as a whole. He had also read the article of April 19th, and seeing that it was ! word fdr word the same as in Gor- ■ don’s book, he took it to refer to : Gordon. He had purchased the ; svstem and had run his farm on Mie ! lines set out. He sometimes had ) 2000 birds and sometimes 3000. At I present he had about 1500.

i To Sir John Findlay—He had ■known. Gordon for about three

j years. Plaintiff had not asked witness if he thought the article >.c--I’errtd to him, although he had frequently spoken to him about it. He told Gordon he thought someone was giving him a nasty knock.

i Sir John Findlay : What words m the article led you to connect this article with Mr. Gordon 1

Witness: There was no particular word. I. took the article as a whole. Continuing, witness said he used several systems of poultryfarmrng All were secret systems. He bought the Hogan system from a man from Australia ,and imported the Moore and Infallible systems from America, i One cost a guinea and another s'-. i Sir John Findlay: The price is I coming down.

Witness: Yes, like law, cheap law, you have to pay to get at any good. Sir John Findlay: How do you know this letter refers to plaintiff I Witness: By reading it as a whole. His Honor: That’s of no use. Any poultry expert might say it referred to him and take an action for libel against the New Zealand “Times.” To Mr. Dolan: Gordon's system was the best.

John Merrett, journalist, editor of the “New Zealand Poultry Journal,” Christchurch, gave evidence that he read the article complained of appearing in the “Times” of April 4, and knowing the information the article gave, he could only come to one conclusion, that it referred to Mr. Gordon. He also read the second article complained of, which appeared in the “Times” of Apiil 19, 1912, and thought it referred to Gordon. He had a pamphlet containing Gordon’s system.

To Sir John Findlay: He had known Gordon for about five years. He ('Aitri(-ss) was for a number of years agent for the Hogan system, and Gordon was a sub-agent to secure advertisements and subscriptions for the “Poultry Journal.” Witness took the Hogan agency in 1903 and charged two guineas for the system, which was a secret one, and inquired a pledge of secrecy from purchasers. Witness Lad sold the Hogan pamphlets, but Gordon had not s-.ld any to witness’ knowledge. Witness would not have objected to Gordon selling copies of the Hogan system. Witness could swear that Gordon was not selling copies of the Hogan system in the Taranaki district.

Sir John Findlay: Suppose one was selling a pamphlet which contained a system known to that one to be an imposture, would that not be a fraud I Witness : Yes.

Sir John Findlay: And if he had evidence that it was such an imposture, would you not still say it was fraud I Witness: Yes.

Counsel: Then I’ll prove it out of Gordon’s mouth that it was a fraud. M itness w r as closely examined by counsel regarding some passages in a book entitled “ Utility Poultry Farming,” of which Gordon was the author, in which the Hogan system was referred to as the best in the world.

Counsecl: Do you know that in his pamphlet Gordon denounces the Hogan system ’ —No. Counsel: Mould you consider Gordon’s charge against the Hogan system to be deliberately false. Witness: Yes.

Counsel: In booming the Hogan system in his book, Gordon upholds the pelvic bone system of ascertaining the number of eggs a fowl is likely to lay in a year.—Yes. And in his pamphlet he says it is so much twaddle. —Yes. Witness did not think Gordon was one of the three greatest poultry experts in the world. The Court at this stage adjourned for lunch.