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SUPREME COURT—CIVIL SITTINGS

SATURDAY, JUNE 7tii. (Before His Honor Chief Justice Arney.) BUSBY V. BELL. This was an action of libel brought by the plaintiff, James Busby, against Francis Dillon Bell, Land Claims Commissioner, damages £SOOO. The plaintiff conducted his own case, Mr. i. Whitaker appearing for the defendant. A Special Jury was sworn to try the cause, composed of the following gentlemen:—Messrs Jas. Burtt, J. T. Boylan, Henry Gilfillan, Walter Graham, Thos. Li Macky, John Robcrton, Samuel Rout, James Smart, llobt. Watcrston, Wm. Hobson, Robert McLean, and James Williamson (foreman). The declaration and pleas were as follows: The plaintiff saith that in or about the month of September, 1860, the plaintiff transmitted to his Excellency the Governor of New Zealand, a certain paper writing of memorial for the purpose of being forwarded to his Grace the Duke of Newcastle, and the same paper writing or memorial having been referred to the defendant for his comments thereon, the defendant in pinking Ids said comments thereon fiilsly and maliciously wrote and published of and concerning the plaintiff in the words following:—l received the rc-f-rLnce on the 31st October, but it was not till yesterA! I could find time to go through Mr. Busby’s mcand its long appendices. 1 really wish to offer no observations on these papers. If I were to expose the extravagant misstatements in which they abound, I should make as big a volume as they do ; and as regards the particular land claim in which Mr. Bushy prays the interference of the Secretary of State, I was sustained by the Chief Justice in every point I had taken, and I adhere to the decision communicated to Mr. Busby. It has been iu his power, at any moment heplcased, to obtain a grant by surveying the claim as tile Act required it. For reasons best known to himself he has never done this, and has insisted on my issuing him instead, scrip for a particular sum, which I have steadily refused to do. A gentleman who asks the serious consideration of the Secretary of State to statements such as I have noted below is obviously not open to the influence of reason or common sense.—F. D. Bej.l, November Sth, I860.” “ The proceedings of the General Government and legislature ns well ns of some of the six Provincial Governments bear more resemblance to those of a society . of gamblers intent upon securing a large stake for themselves, than to the ordinary functions of government, exercised for the benefit of the community.” (Pamphlet of 1858 preface.) “For I, who have set’myself to get rid of those monstrous impositions on human credulity and human patience, called the New Zealand Constitutional Act and Responsible Government.” (Ibid, page 11.) “In the history of governments, ancient and modern, the ingenuity of man has not been able to contrive a system that did more to stir up party strife and ill feeling, and to corrupt and debauch the people than the constitution of New Zealand with its responsible government.” (Ibid, page 15.) “I express a decided opinion that they who acted upon “ The good old rule, the simple plan That they should take who have the power," were respectable when compared with the men who framed and would carry out such a provision as this,” &c. (Pamphlet, 1860, page 15.) Wherefore the plaintiff seeks to recover the sum of £5,000. To this declaration the defendant for pica saith— That he did not publish the matter of and concerning the plaintiff as in the declaration alleged; and fur a second plea the defendant says that before and at the time the defendant wrote the matters of and concerning the plaintiff in the declaration mentioned, he. was, and still is, a Land Claims Commissioner, appointed under an act of the General Assembly of New Zealand, intituled “ The Land Claims Settlement Act, 1356,” and being as such Land Claims Commissioner an officer of the Government of the Colony, His Excellency the Governor of New Zealand referred the paper writing or memorial in the declaration mentioned to the defendant, as such officer, for his comments thereon, and the do fendant, in making his said comments as such officer as aforesaid, officially wrote and sent to His Excellency the Governor of New Zealand the matter in the declaration mentioned, as he lawfully might; and fora third plea the defendant says, that with the paper writing or memorial in the declaration mentioned, the plaintiff transmitted to his then Excellency the Governor of New Zealand several papers and documents, and that the said memorial, papers, and documents, were referred to the defendant, as such officer, as iu the second plea mentioned, for his comments thereon, as in the declaration mentioned, and the defendant says that such matter is substantially true. On the 10th of May the plaintiff, by way of replication, saith, that as to the first plea ho joins issue thereon; that as to the second pica, the plaintiff saith that notwithstanding the defendant being such Land Claims Commissioner, ns in the said plea set forth, it was not lawful for the defendant to write and send to his then Excellency the Governor of New Zealand, in manner set forth in such plea, the matter in the de- , claration mentioned. That as the third plea, the plaintiff' saith that the said matter in the declaration mentioned is not substantially true. Issues—Plaintiff alleges, and defendant denies, that the defendant published the matter of and concerning the plaintiff as in the declaration mentioned. The defendant alleges, and the plaintiff denies, that the matter in the declaration mentioned is substantially true. Mr. Busby then addressed the Jury. He said the case that he was about to open to them was one of a rather peculiar character, and would require their patient attention. He would first endeavour to give them a short outline of the facts, in order that they might he prepared for the reception of the evidence which he should lay before them, of the peculiar nature of this action as distinguished from ordinary actions of defamation. He should advert to the law of the case, bo far as to enable them to judge how it applied to those facts, and would lay before them evidence to show the instances under which he claimed damages from the Defendant, and to prove to them that there was a case for actual damage. The facts heiug before them, it would then be for their judgment to say whether this was a case in which the injured party was entitled to redress under the law, and if so, to estimate die magnitude of the injury which ho had sustained, and for which ho sought redress. The Commissioner of Land Claims to whom was referred a claim for land under certain Statutes of the Legislature of this country, having delayed to give a decision, the party appealed to the Governor, requesting him to vindicate the public faith which was pledged to the aggrieved party, under a different Statute from that under which the Commissioner was empowered to act. Failing to receive the expected relief from the Governor, he appealed to the Secretary of State for the Colonics, by a memorial, which was forwarded to the Governor, with a request that he would forward it to the Secretary of State. The memorial, it appeared, had been sent by the Governor to lus Ministers, and by them to the Commissioner for his report thereon, as he (Mr. Busby) presumed. The memorial to the Secretary of State was in the form of an appeal from the decision of the Governor in not taking up the case as one which the' public faith was pledged to. On receiving this memorial and the other documents forwarded with it, the Commissioner of Land Claims wrote a minute in relation to it, which minute was the present cause of action. It was transmitted to the Secretary of State by the Governor, with the memorial and the reply of the Secretary of State to the Governor, would enable the Jury to judge of the injury that arose from the transmission of this minute, (Declaration including the minute read, as given above). That was the libel. They would observe in the first place, that this minute described the memorial as containing so many extravagant misstatements, that to expose them would fill ‘as big a volume as they did,’ hut it did not specify a single instance in which a misstatement had been made. Secondly, the minute represented that the Land Claims Settlement Act required that the claimant should survey the land claimed, and that it was because he did not comply with the Act in this respect that his claim had not been satisfied. Thirdly, it led naturally to the conclusion that the Commissioner had decided the case, and that it was through the default of the claimant alone that his claim was not satisfied. He thought he should he able to show that it was the natural tendency of this minute to mislead the Secretary of State, and his reply would show how far it had misled him, inducing him to consider that a memorial which so abounded in extravagant misstatements wag not worthy of belief or attention. Misstatements, as here used, was only another name for false statements, hut he should he able to prove by the documents which he should lay before them the truth of a great portion of what was stated in that memorial, and he was willing to make oath of what could not ho proved otherwise. It would bo impossible for the Defendant to prove that it contained any single misstatement, and he was only aware ■>f two trilling errors of figures which did not affect the i%its of the case, £BOO being stated instead of £727, ant 4270 acres instead of 4225 acres. He would prove thatit was positively false to say that the Act required the ciamant to flake the survey, and though in the rules Which the Ci3inmissioner had prepared for himself, and whidi had reccVml the sanction of the Governor • in Countfl, there was acquirement that in small claims the claimant should MaeAlic land surveyed before being brought before yet that would not apply to cases where tMsmd claimed was so extensive that onlv a small he granted ; and he should product* a letter said it W fc'? ft) Wft fco % W5

l there any better ground for the false impression conveyed to the Duke’s mind that a decision had been ,riven in the case, by which decision he was bound to decline to interfere. Nearly throb years bad elapsed from the time when it was the Defendant’s duty to have given a decision, and no decision had been given to this day. In defence, it was put forward that the communication was a privileged one, and that the writer from his official position was privileged in writing its contents ; but if it could be shown that the statements made were not only false, but that the Defendant was actuated by malice in uttering them his official position would prove no defence but rather an aggravation. Mr. 11 us by then read passages from Judge Ilory and Lord Denman, from which he inferred it was only necessary for him to prove falsehood and malice on the part of the Defendant, and the utterance of falsehoods with the view of injuring a private individual, was of Itself conclusive proof ot malice. He should bring evidence of an intrinsic and of an extrinsic character, to show whether Defendant was actuated by malice or merely discharged his duty by making fair comments on the paper sent to him. The intrinsic proof would appear on examination ot the libel itself; the extrinsic proofs would appear in the previous conduct of Defendant to Plaintiff. The documents ho was about to .produce would not only tend to show the spirit in which Defendant wrote that minute, but would prove the extent and nature of the injury which he (Mr. Busby) had suffered in his relations with the Colonial office from the sending of this minute. He then tendered in evidence a letter written by command of King William IV., signed by Viscount Goderich, and sealed with the seal of the Colonial olliec, appointing Mr. Busby British resident in New Zealand. After some objections by Mr. Whitaker, the document was admitted. Mr. Busby then tendered a letter from Sir Diehard Bourkc, Governor of New South Wales, giving instructions to Mr. Busby as British resident in New Zealand, and dated the Ist April, 1833. Mr, Mclntosh proved Sir Richard Bourkc’s signature and a paragraph of the document was read by Mr. Busby’s desire. He then wished to put in some letters in relation to the discontinuance of bis appointment and the sense the Government had of the way he had discharged his duties, Mr. Whitaker objected to these irrelevant matters, going back to a time before the Colony was founded, being received as evidence in the present case. Mr. Busby explained that his object was to show the amount of damage done to him by this libel which depended on his standing with the Colonial Department. When New Zealand became a Colony he had been promised an adequate public appointment in re - cognition of his' services, ami when he was in England Lord Derby assured him that there was nothing in the records of the office to his detriment and caused the Undcr-Secretary to write to him to that effect, and renewed the promise of a suitable appointment. By these documents he wished to show how much his position, in the eyes of the Colonial Office, had been damaged by tin's libel. The Chief Justice said there was nothing in the declaration about Mr. Bushy’s position, and as the documents were objected to they could not be received, but he might take it for granted that the highest personal respect was paid to liis character and position. Mr. Bushy next wished to put in a scries of documents in support of his land claims, which were objected toby defendant’s counsel and decided by the Chief Justice to he wholly inadmissablc as evidence in this action of libel, remarking that Mr. Busby’s supposition that these claims would have been rc-opened but for the statements made by defendant, could not justify him in admitting evidence of them. The memorial relative to which the alleged libel was written was then put in and read, together with the Duke of Newcastle’s reply, dated April 17th, 1861, declining to interfere with the action ol the Colonial Government. Mr. Busby tendered a letter from himself to the Colonial Secretary in New Zealand, dated 19th June, 1850, enclosed with the memorial to the Duke of Newcastle. Mr. Whitaker requiring the document to he proved, Mr. Busby offered to go into the witness box and prove it, upon which the Chief Justice remarked that it seemed most prejudicial to the cause of justice that a man should be both counsel and witness in the same case, and it was much to he regretted that if it were necessary the plaintiff should he a witness, that he did not allow somebody else to he counsel. Mr. Whitaker formally objected to such a combination. If Mr. Busby became witness, he would lose his right to address the jury. Mr. Fox, who had been suhpoened to produce this and other documents, was then called, and having been sworn said he wished to apply to the Court in this matter. He had no wish to act contumaciously, but he conceived it to he his duty to decline to produce the document asked for in the subpoena, as it would be detrimental to the public service that it should ho produced on this occasion. The Chief Justice inquired if it was a state document.

Mr. Fox claimed the right on behalf of the Colonial Government of deciding whether the production of a document would be detrimental to the public service or not, but hj« left it in the hands of the Court to decide whether lie had such a privilege. The Chief Justice wished to hear arguments. The point came upon him by surprise. Mr. Whitaker quoted a case iu the Court of Exchequer, Bcntson v. Skecm in June, 1860, in which it was ruled that if the head of the department having custody of the paper required was in attendance, and stated that in his opinion its production would he detrimental to the public service, tiic Court should nut require him to produce it. The Chief Justice inquired of Mr. Fox what documents were asked for. Mr. Fox: A number of documents arc called for, of which the only one in my custody is the one now asked for. It is a letter to the Colonial Secretary of New Zealand, dated 19th June, IBSU, and were it not for the reasons I have assigned, 1 could produce it. Examined by the Court. 1 am of opinion on broad general grounds, that it would lie detrimental to the public service to produce this document. The Chief Justice (to Mr. Busby): You hear what Mr. Fox has said. 1 have no power to make him produce that document. The Court is hound by the discretion of the Colonial Secretary. Mr. Busby argued that the rule quoted was not absolute but had exceptions, and that this ought to he an exception, being no state secret, but a document which ho was at liberty to publish at any time. J’iie Chief Justice repeated that in the face of that judgment of the Court of Exchequer he felt he could not compel the production of the document. Mr. Busbv then tendered a copy of the document and again offered to prove it on oath, and the question of a plaintiff’s right to be also witness was again argued, and the Court decided that so far as this question was concerned, Mj. Busby might bo sworn, he hating served a notice lor the production of the document, and been unable to obtain it; hut ho had better conclude the rest of his case first. Captain Francis Eastwood Campbell examined by Mr. Bushy: I am Clerk of tiic House of Representatives. I received a subpoena to produce a return to an address from the House of Representatives. I have the return in my hand, hut do not feel at liberty to produce it, lest my doing so without their order should he an infringement of the privileges of the House of Representatives. An order for their production should he made by the House. It is not a general rule that the public press have access to all the documents belonging to the House. I don’t remember ever refusing tire application of a public reporter to take a copy of a return to an address. The Chief Justice: I am of opinion that this must bo produced. Witness cross-examined by Mr. Whitaker; I produce the return as laid ou the table of the House, but it is a copy of original documents. [Document produced; Copies of His Excellency’s Despatch to the Duke of Newcastle, covering a memorial from James Bushy, dated 29th September, 1860, Mr. Dillon Boll’s memorandum or remarks thereon; other papers accompanying the said memorial, and copies of all previous despatches from His Excellency the Governor in relation to Mr. Busby’s claims to land.] Mr. Whitaker objected to the documents being received in evidence, they being only copies. The Chief Justice ruled that no ground having yet been laid for producing secondary evidence of the libel and other documents, they could not he received in evidence. Francis Dillon Bell examined by Mr. Bushy: Am Commissioner of Land Claims under the Land Chums Settlement Act. Received a subpeena to produce the record of a minute addressed by mo to the Governor iu relation to a memorial by yourself to the secretary of State. I have not produced it, because it is not in my possession. The Clerk of the Court usually holds the custody of all documents. You may say 'they arc in my custody. The Clerk acts under my authority, and by my directions. The subpoena was addressed to the Clerk and myself, and ho lias in his possession all tiie documents that can he produced. The letter from you to the Governor, covering memorial to the Secretary of State, September 22, 1860, is not in my possession. My Court is a Court of Record. I did not record a copy of inv minute, on your memorial. I did not state in the House of Representatives that I had made such u record. I have no recollection of the speech in the 'House of Representatives ou this subject. To tlw beet of ffiy buM $$ r>)(] fcecdjopticn | tipyev Wf

I such statement whatever. ‘There ;was a-minute of mine on a letter of yours which you might.have seen in my office at the time. That was a minute referring to your memorial to the Duke of Newcastle. I have not the letter in my office, for it never was my property. In writing that rifinute, I was acting officially as Commissioner of Land Claims. I h'aWe made no record in the Land Claims office of that minute, nor do I believe any record of it exists there separate from that on the hack of the letter. All the papers relative to your Numtiru claim were at one time in my possession. Several other communications from you to the Governor have been returned to him. I returned the minute iu question to the Governor about a fortnight ago. I was aware at the time that this action was pending. The minute was not a record of the Land Claims Court. The letter on which it was made was the property of the Governor, though it might till lately have been seen in my office by you or others. I have already stated that 1 did make no record of it. I don’t think I requested my clerk or anyone else to make a record of it, or there would have been one made. It is the duty of my Clerk without special instructions to record nil my transactions which have a judicial character; but letters, minutes, and memoranda of my own, though ol an official character, are not necessarily recorded, nor do I instruct my Clerk to record them. 1 did not consider the minute in question, or the memorial on Which it was written, of the slightest I did read the memorial, and am aware that its object was to bring under the consideration of the Secretary of State a claim amounting to £19,000 or £20,000. I did not consider that worthy of the least notice; and for the reason that there was a great deni in it that was quite irrelevant, and a great deal that was entirely incorrect, I did not think it my duty under these circumstances to specify the instances iu which it was incorrect, for it referred to a case laid before the Chief Justice of the Supreme Court which contained all the facts, and was therefore sufficient lor the information of the Secretary of State or any one else. 'i he case was settled and agreed upon between the plaintiff and myself. In that reference the Chief Justice was called upon to give his opinion upon points ol law, hut the case contained all the facts relative to the Numum claim that were of the slightest importance. I did not take into my consideration whether there were any important facts in the memorial, not referring to the Numum claim. I don’t object to any portion of the case laid before the Chief Justice as a misstatement. I did make some investigation of other points in the memorial before I said they were misstatements. I will show you what misstatements there were if you will baud mo the memorial and the documents that accompanied it, and it it would not tiro the Court and the jury too much. Mr. Whitaker objected to this; the libel was not yet before the Court. The Chief Justice said he had felt that during the whole cross-examination, which had been diicctcd to show in an indirect manner the contents of that minute, which was not before them. Mr. Busby deferred the question and produced a document, handed it to witness and asked him if it were a copy of the minute. Mr. Whitaker again objected, and the Chief Justice told Mr. Busby that he could not ask that question, because the contents of n written document must be proved by the production of the document itself. Further discussion and cross-examination ensued, by which, however, Mr, Bushy failed to bring out any evidence of importance, till at length the Chief Justice asked him if there would he any evidence of the puhlition of the libel supplied to the jury, because if not, the case must fall to the ground. Mr. Busby replied that he had no further evidence of the publication of the libel. He could not have supposed its production would he refused as State secret, and he thought it remarkable that the Minute should not be in the records of the Land Claims Court, whence it had b«en removed only a fortnight before the trial. He would submit to a uon-suit under the circumstances. Nonsuited accordingly, the Chief Justice observing that this would leave him the power to bring a fresh action. On the application of Mr. Wiiitakcr, the case was certified as a proper one for a jury. The Court adjourned till Wednesday (this day) at eleven o’clock.

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SUPREME COURT—CIVIL SITTINGS, New Zealander, Volume XVIII, Issue 1685, 11 June 1862

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SUPREME COURT—CIVIL SITTINGS New Zealander, Volume XVIII, Issue 1685, 11 June 1862

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