BERTLING v. NORTON.

Otago Witness, Issue 2928, 27 April 1910, Page 58

BERTLING v. NORTON.

j MOTION FOR NEW TRIAL. . WELLINGTON, April 20. \ At the Supreme Court to-day, before the Chief Justice (Sir Robert Stout) and) I Mr ' Justice Cooper, an application was I made for a new trial of the action brought by • Albert E. L. Bertling against John J Norton... This was a case in which a jury i recently awarded £ICOO- damages for libel • against Norton, tire "proprietor of; the ■ New | Zealand Truth' newspaper. Mr Dunn ap- ■ .peared for Norton in support of the application, and Mr Ostler, with him Mr Sharp, appeared for Bertling to oppose it. The grounds urged for the new trial j were as follows: , (1) That the damages are excessive. j (2) That the judge at the trial mis-: j directed the jury in the following points: I (a) The judge directed the jury that the | defendant had pleaded justification as a : defence to the action, whereas the defendant did not plead justification ; (b) the | judge directed the jury that they must | find all allegations or statements of fact to be true, whereas it is sufficient to establish the defence of fair comment if the quasi facts are substantially true ; (c) the judge did not properly direct the jury as \ to the defence of fair comment, and did) ! not leave the question of fair comment properly to the jury; (d) the judge in directing the jury did not direct them to distinguish between statements of fact and statements of opinion, and directed' the jury that both statements of fact and the statements of opinion must be proved to be true before they could find a verdict for the defendant, such direction! being "wrong in law; (e) the judge misdirected the jury in directing them as to damage, in that he stated that the defendant justified the libel, and that thev w-•« entitled to take into account -uch. of justification in assessing damages, (f) In directing the jury as to the defence of fair comment, the judge directed the jury that if they themselves did not agree with 'the opinion and comment expressed, they were to find such opinion and comment unfair; (g) that the judge in his summing up to the jury assumed certain facts to be proved and true, whereas such facts were not proved. Examples are as follow : —(1) The judge assumed as a fact that the lioness referred to in the evidence was suffering from rickets when left at Newtown Park. (2) It was stated as a fact to the jury that Arthur had lost his position in the gardens through Bertling. (3) It was stated that Arthur was not in the zoo after March 16, 1909. (4) It was put to the jury that Mr Youill stated! that the file had been used on both animals. 3. That the judge at the trial directed evidence which ought to have been .' '- mitted—namely, the report of Mr Qninnell, dated May 15, 1909, to the Wellington City Council, such report and its con-i tents beiog referred to in the articles containing the alleged libel, and the comment in such articles being based on such report. The judge also ruled that the evidence of the other facts stated in the article, but not charged as libellous, could' be given by the defendant. 4. That the counsel for the plaintiff mentioned at the trial in opening and 1 concluding the case the amount of damages claimed by the plaintiff, such mentionr being unfair and improper. 5- That the verdict is against the weight of evidence. Argument had not concluded when the. court rose for the day. ....'.- The Chief Justice Temarked that he" did not think the damages were excessive considering the damages given in such cases in England. He pointed out that several assertions in the grounds given for a rehearing were utterly erroneous. One of the grounds for the application was that Bertling's counsel had in the course of the action improperly mentioned the amount of damages claimed. Mr Dunn contended that that was not fair, and was not in accordance with English practice.

The motion for a new trial was dismissed.