MOTION FAILS

New Zealand Herald, Volume LXXV, Issue 23160, 5 October 1938, Page 22

MOTION FAILS

•NEW. TRIAL SOTJCffIT SLANDER ACTION ECHO s -TV :v '.•».. - spyWAIHI HOSPITAL CASE ' ■ V ' r'-y ; A motion for a new trial in a slander action heard and determined by Mr. Justice Fair last, April was brought before His Honor in the Supreme Court yesterday. The case was that in which Mrs.' Isabella Jane Paddock, former matron of the Waihi Hospital, j sued Dr. Archibald Jenkins, then medical superintendent of that hospital, claiming £475 damages for alleged slander aud libel. His Honor, in giving judgment with costs for defendant, Baid that although ho had made a great number of indiscreet statements which could not be substantiated it was not proved that he had been influenced by malice. The motion for a new trial was brought by Mr> Fitzherbert and was opposed by Mr. Newbery. Mr. Fitzherbert said Dr.- Jenkins, who was going to conducft his own case, had left New Zealand without giving an address. Grounds of Petition Mr. Fitzherbert's petition asked that "judgment be set aside and the proper judgment on tho real facts" be entered for the plaintiff. It stated that the judgment was founded on a misconception of the facts and was against the weight of evidence. Mr. Newbery ' submitted that Mr. Fitzherbert was moving for a new, trial on grounds that gave cause' only for an appeal. His Honor ruled that the verdict being against the weight of evidence could not be a ground in these proceedings and that the only ground on which Mr. Fitzherbert could proceed was that there -were facts that the Judge had overlooked. He granted an adjournment to'enable Mr. Fitzherbert to state the facts, which he alleged had not been taken into consideration. When tho hearing was resumed Mr. Fitzherbert said he had urged during tho hearing that there had been a promulgation of known falsehood by the defendant, which stripped him of all jjrivilego. Extent oI Privilege His Honor said that qualified privi* lege extended to a man acting in discharge of his duty even when, he said what was not true and what he knew was not true. After offering further argument Mr. Fitzherbert said he realised that he was addressing His Honor as if he were a Court of Appearand that the application must "go by the board." k In refusing the application His' Honor -said that ' ijl none of the matters brought- to his attention could he say that he had overlooked that aspect or formed a mistaken view of the -facts.'! It was only when it was shown that a person had made the statements objected to not in carrying -out his duty, but for some purpose to which protection did not extend, that he was liable to be sued.