SINGULAR LIBEL CASE IN FIJI.

New Zealand Herald, Volume XVI, Issue 5495, 27 June 1879, Page 3

SINGULAR LIBEL CASE IN FIJI.

A singular libel case —Hobday v. Parr— was recently tried before Chief Justice Gorrie, at the Civil Sittings of the Supreme Court. Damages were laid at £1000. The AttorneyGeneral appeared for plaintiff; Mr. P. S. Solomon, instructed by Mr. W. I. -Thomas, for defendant. The following is an abridged account of the judgment of the court: —This is an action of libel brought by Joseph Smithsdown Hobday, a barrister and solicitor of this court, who also holds aa acting appointment as Crown Solicitor or Assistant; Law Officer, against William Fillingbam Parr, also on the roll as a barrister and solicitor of this Court. The libel complained of, as set forth in the statement of claim, is contained in a letter addressed by the defendant to the Right Honourable Sir Michae Hicks-Beach, Secretary of State for the Colonies, of date 11th January, 1579, in which the following paragraph is written :— "On or abont the day preceding his departure for England, His Excellency Sir A. Gordon offered an insalt to the Ear of Fiji, (of which I have the honour to be a member, and which I joined as soon after my arrival in the colony as I could get my papers from England, where I had practised in London and York in the legal profession for ten years,) which, however, was not made known until after he had left the colony. He appointed a man named Hobday Crown Solicitor ! On the 17th, 18th, 19th, and 23rd of April, 1572, Hobday was tried for his life in the Supreme Court here, for shooting a Fijian in cold blond. He was acquitted, but, although he tried several times to get admitted to practice in the Supreme Court of the old Government, his admission was constantly and unanimously refused by tbe Bench, which consisted of three judges." The letter, so written to the Secretary of State, was sent to the Administrator of the Government, to be forwarded to its destination, with the usual report on its contents, Mr. Parr having previously seatgietters to the Secretary of State, which had not been transmitted through the ordinary official channel, and, which he had been informed, could not be taken notice of. The paragraph above quoted was sent to the plaintiff in a letter from the Colonial Secretary, dated 12th February, 1579, in which the plaintiff was informed that the Lieutcnant-Govemor was aware that the above statement was in at least one respect unjustifiable, and if all the circumstances were not as represented, it amounted to a libel of a very serious character, and in which the plaintiff was further informed thai; Hi 3 Excellency would be glad to receive any observations which he desired to make on the matter. The defendant pleads—(l) that he is not guilty; (2) that the letter to the Secretary of State was a privileged communication; (3) that what was stated was true, except that the refusal oj admission referred to wa3 not unanimous, but by a majority of two to one; (4) that the publication was made fairly and lomfidt

' and for the public good, and without any sinister or malicious motive, and in the buna fide belief in the truth thereof. Upon tlieso pleadings the parties proceeded to trial before the court, a motion by the defendant for a trial by jury, which is competent under the Civil Procedure Rules, but has never been acted upon in civil causes, and which was opposed by the plaintiff, having been refused by the court under the discretionary power given by these rules. In proceeding to give judgment upon the pleadings and tho evidence, I shall first deal with those questions upon which, had I been sitting with a jury, it would have been necessary for me to direot them in point of law. And, first as to the question whether the communication to the Secretary of State, in which this alleged defamatory matter was written, was a privileged communication in the meaning of the law. With respect to privilege, the law of libel recognises two categories of privileged communications: (1) There are those where the commonication- is so privileged from the position, of the writer that even malice is not allowed to be pleaded againet him, and no action will lie ; (2) there is a stcond category where the privilege is not so extensive or conclusive, but where it exists so far as to cover the writing of defamatory matter unless express malice is alleged and can be proved. This comprises a much more extensive class of cases, from complaints made by an aggrieved person to the high officers of the realm for redress of injuries down to the ordinory communications of every day life made from one individual to another as to the character of servants or other matters in which they have an interest. Having thus seen what the general principles of the law are, I shall proceed to consider the nature of the communication ia this instance to see whether it comes within the second category of privileged communications which rebut the presumption of malice, and require it to be specially proved. The letter purports to be a communication to the Right Honourable the Secretary of State for the Colonies from the defendant as an individual. Paragraph 12 is to the following effect .-—"The above paragraphs all relate to the native taxation scheme, but I also deem it an unpleasant duty to bring to your notice other matters." Paragraph 13 relates to a public matter while paragraphs 14, 15, and Iβ relate to individuals, paragraph 15 being that which affects the plaintiff. The rest of the letter may be taken to refer to public affairs. Now, I certainly think that a com'munication made to the Secretary of State for the Colonies upon such a subject as the working of the native taxation scheme, or aa to any oppression or injustice which the writer honestly believes to exist in the colony, is a privileged communication. It is, impossible, however, to shut one's eyes to the fact that some portions of defendant's letter are of such a character that it is difficult to believe that any person whatever could honestly believe he was discharging a public duty in penning them, but as to these the limita? tion of the privilege of this particular category of privileged communications will apply, that if any portion of them exceed the bounds which the occasion warrants, or disclose a bad feeling towards individuals, they may have their remedy by proving the the malice. This brings me to that part of the case where, if we had been sitting with a jury, it would have been necessary for the judge to decide the question whether there was evidence of malice sufficient to go to the jury. The terms in which the communication is couched ought to be considered, and any other circumstances from which malice, in fact, might fairly be inferred. After explaining that he had no quarrel with, the plaintiff (which, however, is denied by the plaintiff), the defendant, in his ex-amination-in-chief, goes on to say :—" I had not the_ least intention of injuring the plaintiff in his relations with the Governor. I thought it was another charge against Sir Arthur Gordon, and I enumerated that among them." And, in cross-examination : Arthur Gordon. My letter to Sir Michael Hicks-Beach was written on the spur of the moment, and I gave it no consideration ; I gave no consideration to the charges I was making." Now, in Crown colonies, and, I sup. pose also, in constitutional colonies, although I am less intimately acquainted with them, there arealwaj s men who strive to occupy the position which I have heard described as "thorns in the Governor's side." It gives them a kind of importance, and I have deliberated long whether this was not a case which might not rather be viewed as such, rather than as one] of personal malice. But Governors are not unaccustomed to meet charges like these, and as the wholesome rnle of the department (which Mr. Parr attempted to break through, and to have his charges made secretly and behind the back ■ of those accused) is not to receive communications except throught the Governor, the antidote goes home with the poison, and I believe, as a rule, Governors are generaliy able to hold their own against such antagonists, and they have always the advantage of the last word. But I have had to consider no less the position of the plaintiff, who comes here demanding justice. I have looked at the words concerning him in every light which the evidence could throw upon them, and to w'oat other conclusion nan I possibly come than that the communication was intended maliciously to injure the plaintiff in hie professional capacity, and with reference to the appointment just conferred upon him, by allusion to matters, in excess of language, of which he has been honourably acquitted. The damage which I have to assess is the general damage which is due in consequence of the writing of these defamatory words which the malice has taken out of the privilege, and I think that a sum of £150 will be a sufficient aum in the whole circumstances of the case. The defendant must also pay the cost of the suit.