Thursday, June 16. finlay v. spencer

Otago Witness, Issue 2623, 22 June 1904, Page 27

Thursday, June 16. finlay v. spencer

Claim £501 for alleged malicious libel. Mr W. A. Sim, -with him Mr A. C Hanlon (instructed by Mr C. J. Payne), appeared for the plaintiff, Robert Millar Finlay, of Dtmedin, gentleman; and Mr W. C. MacGregor, with him Mr R. Gilkison, for the defendant, George Spencer, of Alexandra, dcedgeowner. The hearing of this case was resumed. Mr MacGregor, addressing the jury, said the case was important, first, to the plaintiff, second to tha defendant, and third to the public, for b# it -would be detejmjaed whether

persons would be at libeity with immunity to burg unfounded and harassing libel actions sgamst respected and lespectable citizens. La libel the plaintiff must prove (1) that the defendant published defamatory matter, and (2) that the defamatory matter related to the plaintiff. In the piesent case the plaintiff complained tLat the defendant had published a circular reflecting on him, and by po doing it injured his character and reputation, and jet the plaintiff dared not go into tho witness box to allow the jury to form their own conclusions as to whai the natrre of his chaiacter and reputation was. That of itself might be a sufficient defence to the case, but, further, the defendant had a complete answer in that the only real charge he made against the plaintiff was that he was guilty of underhand practices, and that chargs had been proved up to the hilt by the defendant and hi«i witnesses. Further, tho law gave the defendant another absolute defence— -namely, the defence of privilege (1) because the circular was published in self-deferce, and (2) because tho statements made in the circular were made in order to protect the^tomnion interest of the defendant and his fellow-shareholders. First, then, it was for the judge to say whether o^ not the whole contents of the circular were privileged. If he so ruled the plaintiff must prove expicss malice on the part of the defendant in order to succeed ■with his action. Of express malice the plaintiff had given no evidence. Secondly, even assuming that the circular was not privileged the only charge m the circular — that relating to underhand practices — had bean amply pioved by the ur.contradicted evidence of defendant. All the charges in the circular, except the one relating to underhand practices were not reflections on the plaintiff at all, but simply reasons why, in the opinion of the directors, the office should not be removed from Alexandra to Dunediri. Then, was it not clear to the jury that the plaintiff had throughout conducted the business in an underhand manner. He had issued circulars, he had made attacks on the diiectors, he had made ex parte statements at meetings — all behind the backs of the directors and all severely reflecting on their management and character, — and he had not given any answer to all this mass of testimony. He had not dared to go into the box or to call a single witness to prove any rebutting case. His attitude was in marked contrast to that cf the defendant, and his co-director (Mr .Luke), who went into the witness box and clearly proved that their actions throughout had been honest and straightforward. In fact, if the defendant had been a litigious man he should have been the plaintiff, r.nd the plaintiff the defendant, in an action for libel based on the malicious and cowardly statements the plaintiff had made against the defendant behind his back Counsel submitted, finally, that the plaintiff's case had completely and disgracefully broken down, and that on tfce evidence the jury's verdict must be for the defendant.

Mr Hanlon, addressing the jury on behalf of the plaintiff, in reply, in the first place discussed the meaning of the various paragraphs in the circular of which the plaintiff complained, and invited the jury to believe that each of the allegations was directed against the plaintiff and were defamatory. The defence was a justification of part of the alleged libel and privilege. "With regard to the justification, counsel referred to the circulars written by the plaintiff, and showed that the whole of the plaintiff's statements were reasonable and fair argument in favour of his proposal to change the office of the company to Dunedin. The ciicular -issued by the defendant was so scurrilous that it was plain there was no attempt made in it to answer the plaintiff's arguments, but that it was a direct attack upon the plaintiff's personal character. The occasion being a privileged one, it rested upon the plaintiff to prove actual malice. There was no necessity to go beyond the document itself to see that it was written out of sheer malice, bacause it was so far in excess of privilege that the defendant must have been actuated by malice only. This further circumstance should be considered: that when the document was written it was, before printing, taken to the solicitor of the company for revision, and the plain reason, he submitted, for taking the document there was that the defendant wished to make it as hot as he possibly could for the plaintiff, and was afraid of the libel law, bxit, wanting to sail as close to the wind as he could, thought it advisable to see the solicitor. That was strong evidence of malice. Cc-jneel for tlis defendant had harped upon the fact that the plaintif? had not been put into the witness box. That, however, was a matter for his counsel to decide, and as the plaintiff could not prove publication «f tlu libel, and as his Honor had ruled that the question of whether the company had been efficiently managed or not could not be raised in this case, there was no reason whatever for calling the plaintiff, who was not afraid to go into the box if it had been deemed necessary by his counsel. As to the question of damage, the plaintiff did not ask for the full amount claimed in the statement of claim, but only for such reasonable sum of money as would compensate him for the wrong which the jury must find had been done to him by the publication of th.3 defamatory circular

His Honor's summing-up occupied over an hour, and the jury retired at 3 p.m. They returned half an hour later to ask if it was necessary that a unanimous verdict should be returned.

His Honor retired to his room, and consulted with counsel on the matter, and on returning to court said counsel had agreed to accept a three-fourths verdict.

The jury retired again at 3.37 p.m., and returned at 3.45 p.m., answering the issues put to them as follows: —

Is that portion of the circular set out in. the statement of claim, stating that the plaintiff has conducted this business from first to last in an underhand manner, true in substance and fact?— Yes.

Do the allegations in the paragraph of the said circular beginning " There is another matter," refer to the plaintiff and impute misconduct to him? — No.

Was the defendant, in writing and publishing the said circular, actuated by actual malice against the plaintiff? — No.

The foreman said that 10 of tLe jury we:e agreed on the verdict.

His Honor : That amounts to a verdict for the defendant.

Mr MacGregor formally asked that judgment be entered for the defendant.

Judgment for defendant; costs as per scale on the amount claimed ; disbursements and witnesses' expenses to be fixed by the registrar ; second counsel certified for, and second day fee fixed at £10 10=. The court rose at 3.50 p.m.