ACTION FOR LIBEL.

Otago Witness, Issue 3149, 22 July 1914, Page 7

ACTION FOR LIBEL.

FAIRBAIRN v. OTAGO DAILY TIMES. VERDICT FOR PLAINTIFF. (From Otjb Own Correspond bnt.J CHRISTCHURCH, * July 9. The. hearing of the action in" which Andrew Fairbairn, of Christchurch, sued the Otago Daily Times Company for £IOOO damages for alleged libel, was resumed in the Supreme Court this morning, before Mr Justice Sim and a special jury of 12. Sir John K.C., with Mr Wright, appeared for the plaintiff, and Mr W. G. MacGregor, with him Mr C- Stringer, for the defendants. The cross-examination of the plaintiff, which had been interrupted by the adjournment on the previous day, was continued. T „ Mr MacGregor: You know Mr tl.- G. Godfrey, chairman of the Merchants Association, do you not? —Witness: Yes. , He is a man of high standing m the community, is ho not? —Personally, i do not think so. , Witness said ho had not seen Mr Godfrey concerning the latter’s letters. • He had instructed his,solicitors to take action. Attacks upon him had been going on all the time he was occupying a semi-public position, and he could not reply to them. gle was only able to take action when the ost of Living report was laid on the table of the House. It had been his wish to take joint action. „. , , , His Honor: Against the Christchurch Press?—Witness: No, against Mr H. C. Godfrey, as representing the Merchants Association —not against the Press. Mr MacGregor: So that so far you have left the man who originated the libels you complain of above, and the two local newspapers which published these libels, alone, ’ and have gone and attacked a newspaper in another district, which republished the libel? Witness: If it had not been for an extraordinary combination of circumstances the case would have been settled long ago. The Merchants’ Association, he said, got control of sugar, control of matches, control of tobacco, and various other commodities, and in every instance it had raised the price to the public or prevented the price from being lowered to the public. * That had been proved to the hilt. You knew that before you went upon the commission ? —I did. s Did you think it right for you to sit in judgment on them? Do you not see the gross indecency of it now ? —I did not sit in judgment.. • . Mr MacGregor: I say it was indecent. You say it was not dishonourable? The witness did not reply. The witness, further examined, said he was not free to answer .the correspondence or he would have written a denial or contradiction. Seeing that the lies had already got a start and public opinion poisoned against him, he had no recourse but to take action. Mr MacGregor; The lies had a start because you did not contradict them? Witness: I was in a semi-public position. The witness went on to say that he did not at the time see the newspapers containing the report of Jameson’s evidence. The letters were'-based on newspaper reports, which had been proved to be more or less incorrect. Mr MacGregor: I notice in your report you make a great point about the Merchants’ Association refusing to give evidence?—That is so. Do you know why they refused to give evidence?—Of course not. Do you know they would not give evidence because you were on the commission, and that they thought, together with nine-tenths of the people of New Zealand, that it was an indecent thing?—That is not a reason why they should refuse —because they objected to one member of a commission. Why are you so angry with the genuine merchants of New Zealand —people who compete openly?—l have never had a quarrel. With people who try to got illegal discounts I do not agree. Is it playing the game v that my firm should get 2' s per cent, while the others should, get 5 per cent.? Is it playing thd game to write to the Home people to try to stop our supplies. I find by examination -that during the time we have been in business, if we had charged the same profits as others, we would have netted £200,000 more profits. . . You have done very well as it is? Yes, but that amount sifted through the retail traders to the public. I can prove that you have made a good deal of money for yourself ?—I _ have done nothing inimical to the public interests. I am speaking of what we could have netted. You say that on one line alone —on sugar —you claim to got £BOOO from Levin and Co.—money they prevented you from making?—That is so. That is in addition to the profits made in your business? —That is so. What are your methods of doing business in small towns like Balclutha? —No different from the system in the largo towns. Is it not a fact that in a small town like Balclutha you select one firm and do business with that firm exclusively?—No.. And in Balclutha that happened to be the Import Company? —That is not true. I have personally offered to do business with Guest and Co. in Balclutha The management of the Otago business has rested with Mr Wright. Mr Wright may have refused them, but not to my knowledge. It may have been for reasons I do not know. Was that your own policy—to attach to your yourself one loading firm in each small town and decline to do business with the others? —We try to get the best account we can, but we do not refuse to do business with the others. You have only one account in Balclutha? Yes. What is that but a trust or a combine of tho worst possible kind?—lt is nothing of the kind. The fact remains that you or your cash customers formed in effect a combine ?_ — Nothing of the sort. We are as free as air. We have no written understanding. You are making a good profit while posing as the friend of tho working man? — Had we charged the same prices as the Merchants’ Association wo would have made £200,000. Mr MacGregor: It is a great pity you did not do so. You would bo a millionaire. Counsel invited witness again to admit that the official report was misleading in some particular respects, and that tho comment that liberties had been taken with the evidence was correct. The witness replied that he was- not concerned with tho newspaper reports. All de-

ductions were made from the official evidence. His Honor said that there must be some limit to this cross-examination. Mr Fairbairn had already answered these questions. Sir John Findlay: Was there any objection raised before the commission to your being a member of the commission? Mr MacGregor suggests that the reason the Merchants’ Association did not give evidence was because you were there as prosecutor? —Witness: There was one individual in Auckland who refused to give evidence because I was on the commission. I at onco offered to retire while ho was giving his evidence, but my offer was refused. Will you tell us tho particular ways in which you have been injured?—During my absence on the commission there was a distinct falling off in the returns of the business. It has involved -ray firm in acrimonious correspondence all over the world. I have the best reason to believe that newspapers are vilely attacking me Mr MacGregor: Is this evidence? Witness added that his firm had had to meet all sorts of unpleasant attacks from England, America, Europe, and Australia. Sir John Findlay: Did you have any difficulty over your supplies?—Witness: Oh, yes. From that time an attempt has been made to boycott us everywhere—to stop our supplies of rice and other com modities. In every instance it is because we won’t charge enough—we won’t charge the prices which tho merchants charge. This closed the - plaintiff’s case. Mr MacGregor, in opening for the defendants, submitted that a newspaper had a right and also a duty in the interests of the community to comment on the "actions of public men, and events of public importance happening in the community The plaintiff was acting as a public man, and was a member of the Cost of Living Commission. It was admitted that the newspaper commented freely on tho proceedings of the commission, and on the conduct of the plaintiff in sitting and acting as a member of the commission. They considered that ho had acted wrongly, improperly, and indecently. Counsel submitted that before the sittings of the commission Fairbairn had made up his mind that the Merchants’ Association had been guilty of all eons of wrongful acts in connection with their business methods. They were his trade rivals in business, yet he went there deliberately and inadvisedly, and sat in judgment on his rivals. A man who did that was liable to have his actions commented on severely. Letters appeared in the newspapers while tbe commission was sitting, and the leading article after tho commission had concluded its labours. Tbe main question for the jury was whether the publications complained of were malicious libels or fair comment. A newspaper must not' overstep the lines laid down, or misstate facts. Its comments must be based on facts, which were substantially accurate. Mr MacGregor proceeded to quote from the leading article. It was indisputable that the article did not reflect on Mr Fairbairn, and that he was not even mentioned in it. He had put the cap on his own head, and asked tho jury to assume that he was the guilty party. The defence was that- the article was fair and bona fide comment on a matter of pubic importance. It was written without malice for the benefit of the public, and on a privileged occasion. Counsel proceeded to refer to the alleged omission of parts of the evidence of Messrs Bowyer and Jameson. That was tho principal question of fact involved. Did Bowyer in his evidence refer to Reckitt’s blue? Not one witness for the plaintiff had stated that Bowyer did not do so, and Fairbairn himself did not know. Evidence would be called to show that the evidence was actu ally given. It was almost inconceivable that Fairbairn did not hear that evidence. Roth the newspape reports showed that Bowyer made the statement. Why did not this evidence appear,, in the official record? Within a few weeks of the report' being published it became obvious to people in Christchurch that a mistake had been made, and Mr Godfrey wrote on different occasions to the Press and Times stating the facts exactly, and making strong charges against Mr Fairbairn for not putting the witness Bowyer right when he heard the statement he made. That was nearly two years ago, but from that day there had never been any contrad'ction, explanation, or withdrawal by Mr Fairbairn. Was he the type of man who would_ sit down for two years, when he was unjustly accused? Surely not. The statements became cpmmon property. Tbe Otago Daily Times naturally took an interest' in them. The paper waited for a contradiction, but none came. Then the article was written in the ordinary course of business, and tho letter from Mr Fairbairn’s solicitors followed. It did not ask for an explanation. withdrawal, or apology, but simply asked for the firm of solicitors who would accept service of a writ. The usual practice was to write and demand an apology, without threatening proceedings. Sir John Findlay: That refers to slander, not libel. Mr MacGregor: No. His Honor: He is not bound as a. matter of law to do that. Mr MacGregor said that it was the usual and proper pract’ce. If Fairbairn had asked for an apology, tho Otago Daily Times would have looked into the matter, and if it was shown to be wrong, it would have apologised. Sir'John Findlay; Would it have apologised? Mr MacGregor: I have said so. Counsel went to point out that the defendant newspaper wrote to plaintiff’s solicitors pointing out that tho article did not fairly bear the construction put on it, and that Fairbairn was not in the mind of the writer of the article. Nothing further was heard until six months later_ when the writ' was issued. In the meantime two things had happened. A newspaper did not usually keep documents which were communicated to it by ’correspondents, and in this case they were destroyed a few ■ months after their receipt. Then Mr Gordon (the chairman of the Merchants’ Association) had left for England, via .Christchurch. Probably Mr Fairbairn know of his departure. Counsel contended that Fairbairn had brought comment upon himself by sitting on the commission at all. It must bo obvious to every right-thinking man that he should never have sat on the commission at all. Ho laid himself open to all sorts of charges and misconstruction as to his motives. If it had not been for that the letters would never have appeared and the article would never have been written. Coming to the letter i.n the Otago Daily Times on June 10, 1912, which suggested that if the commission had not boon appointed it would not have given Fairbairn a chance to grind his axe, counsel said that if Fairbairn was really and genuinely acting in the interests of tho country, then

this letter was libellous. Grinding his own axe meant seeking his own profit, and that was a fair conclusion from the whole of his conduct on the commission. ' He should never have sat there at all. He showed that he was not there to inquire into the public questions involved. He was interested in showing up the iniquities of the Merchants’ Association, who wore his business rivals. The jury had heard from him how bitterly he' felt and spoke against that association. How could he come with an unbiassed mind to judge on questions in which the conduct of the Merchants’ Association was concerned? Mr MacGregor continued that the commission had been described as a farce. There was not one trained economist on the commission as originally appointed. Mr Ross, when he saw the names of the other commissioners, resigned. Sir John Findlay: Are you going to prove that ? Mr MacGregor: Within a few days of the announcement of the commission he resigned. Sir John Findlay: Because , his partner was in ill health. Mr MacGregor: Hie partner is alive and well now. Mr MacGregor continued that then for the first time the Government did do the right thing, and appointed a trained economist in the person of Dr Hight. The opinion was held by 959 men out of 1000 that the commission was a gross waste of time notwithstanding the endorsement of the American journal, which nobody there except Sir John Findlay had ever heard of before. Mr MacGregor asked the jury to find that the letter was true, that Mr Fairbairn got a chance to grind his axe, and that he took full advantage of the opportunity. Coming to the second letter, counsel contended that it had been established that the Hon. T. Mackenzie praoticaly owned the Import Company of Balclutha, and that there was a close connection, both friendly and business, between Mr Mackenzie and Mr Fairbairn. Mr Fairbairn had been hammering away at the Ward Government in 1911 to appoint a commission to inquire into the methods , of tfyo Merchants’ Association, and be apparently got a promise from Sir John Findlay (then Attorney-general) that some sort of legislation would be introduced, but political exigencies prevented that promise from being carried out. That went on until the Mackenzie Government came into power, and the course of matters was at once changed. Things began to be_ done. Three Royal Commissions were appointed in a few weeks, and one of them was the Cost of Living Commission. Singularly enough Mr Fairbairn was the only well-known mercantile man who accepted ■a position on the commission. Sir John Findlay: Mr Ross. Mr MacGregor : He did not accept a position, and he gave his reason. Counsel continued that Mr Fairbairn wanted to show up tho_ Merchants’ Association. Was it right that he should accept the position? Even he had appeared to have had some qualms as to its propriety. Surely it was a most improper thing that a man should go there and sit as judge in his own case. As regarded the third letter, they would have little difficulty in coming to the conclusion that the commission was a farce, that Mr Fairbairn did examine his own accountant, and that he was afforded opportunities of eliciting information favourable to his view of the Merchants’ Association. John James Pollard, a reporter on the staffs of the Lyttelton Times and Star, who reported the Cost of Living Commission sittings in Christchurch, for the papers he represented, said he recollected the references being made to blue. He was quite sure that references to blue were made by Bowyer. Ho did not take a shorthand report of the commission. If he found in the newspaper report something that did not occur in the official report, ho would conclude that either the official reporter had missed it or that finding that his shorthand note had broken down, had let the sentences go. By Sir John Findlay : He received a copy of Jameson’s statement, as published in the official record, before he left his office on the morning on which Jameson appeared as a witness before the commission. Jameson’s reference to Bowyer’s evidence in the Lyttelton Times was a supplementary statement, and w'as never handed to witness. If Jame- " Son had given the evidence in witness’s hearing ho would have used it. Sir John Findlay said if it would shorten the proceedings he would admit Mr bollard’s evidence that reference was made by Bowyer to blue. Arthur W. Jameson, assistant manager of the New Zealand Farmers’ Co-operative Association, said he prepared a statement which he read before the Cost of Living Commission, providing copies for the official reporter, the press, and t the chairman. After reading the statement he was cross-examined when he read the statement. He thought he left one part out —a paragraph, he thought, that puffed his own company. He had a separate statement dealing with the statements of Bowyer jxnd Westgarth, and relating to blue. After his cross-examination, witness handed four copies of his statement in regard to Bowyer’s evidence to Mr Collins (the secretary of the commission). His statement that the public received the full benefit of the reduction in the price of blue was correct. He got his statement from Miss Rout for revision within a day or two. As soon as ho had an opportunity he went through the cross-examination, and made one or two alterations. He assumed that the supplementary statement would bo attached to the other .statement, and ho did not, therefore, look for it. Sir Jphn Findlay: Is it not strange that if this supplementary slatement was intended to be evidence you handed it to Mr Collins just as you were leaving the stand, and after your cross-examination was con eluded? You did not read it to the com mission at all? —Witness: No. Why did you not read it? —I overlooked it. In further examination, witness said that the evening papers did not contain the report of the supplementary statement. He got copies from Mr Collins, and took them to the Press and the Times. Part of the space occupied in the newspapers by the statement was paid for, but he did not know what amount was paid. The evidence which witness signed purported to be the evidence he gave before the commission. Do you suggest that that supplementary statement was suppressed by the commission? —No. ... Do you think it fair to charge the commission with having suppressed that supplementary statement? —I have never made such a statement. James Hutchison, editor of the Otago Daily Times, said ho wrote the leading article complained of. He had seen the letter signed by Mr Godfrey in the Christchurch papers directing attention to the dis-

crepancy between the reports in the Christchurch papers and the report in the official record of the Cost of Living Commission. He verified the statements by reference to the official report. He waited a day or two to see if any explanation was offered in the Christchurch papers of the discrepancies to which Mr Godfrey had directed attention, and as no explanation was given he assumed that there w'as none to offer. The extracts from Mr Godfrey’s letters had since been verified in court. Had you any further knowledge of the matter? —No. Mr MacGregor read the letter sent from I lie Otago Daily Times Company stating that Fairbairn was not in the mind of the writer of the article. Sir John Findlay objected to any. question being- asked oh this point. The court was not concerned with- what was in the writer’s mind. His Honor: It docs not matter what was in his mind. It is what the ordinary reader would take out of it. Mr MacGregor: Is the statement in the letter true? —Witness it is correct. He did not think he had met Mr Fairbairn before. The statement that the. article was inspiredby malice was absurd. His paper had commented previously, and had expressed the view that he should not have been appointed to or acted on the commission. The columns of the paper were as open to correspondence in favour of Mr Fairbairn as against him. In reply to Sir John Findlay, the witness said that his attention was not attracted by a letter in the Press on September 17. Sir John Findlay: Your mind had been fairly well impressed with the rascality of Fairbairn when you wrote this article? Witness said the letter which appeared in Juno would probably have escaped his memory by October. He wrote the article on the fact of the omission in the official report to the reference to Rcckitt’s blue and Jameson’s supplementary statement. The question of deliberate suppression by the commissioners was not in his mind at all. Sir John Findlay: You don’t suggest today that the commissioners deliberately suppressed any evidence at all?—Witness*: No, nor have I ever suggested it. Arc you prepared to accept the evidence that Berry has reported as that of Bowyer fairly and honestly treated? —Absolutely. Are you prepared to accept the statement that the evidence of Jameson was treated by the commission honestly?—Yes, certainly. Then you admit that there is no charge against the honour or honesty of any of these commissioners? —I say no charge against the honour or honesty of any of tire commissioners was intended. I ask you whether you think that on the evidence you have heard and gathered such a charge would be justified?—No. Sir John Findlay: Now, I am going to ask yon whether an editor who has made tlie admissions you have made is entitled to write and publish this article headed “Faked Official Documents.” When asked to say if a “faked” document was not discreditable the witness said it was, if it was not reliable and trustworthy. What did you mean by the word “faked” in this connection? —The article was a generalisation based upon the specific statements contained in Mr Godfrey’s letter. - Sir John Findlay: Did you believe it had been faked?— Witness; By the commission ? Sir John Findlay: Yes. —Witness: I believe there was a discrepancy. Did you believe that the official document had been faked by anybody?—lt is very difficult to answer “Yes” or “No” to that. Sir John Findlay: You are the only one who can answer.—Witness: The object of the article was to insist upon the importance of the absolute reliability of all State documents. Sir John Findlay: I know when you used these words. Did you believe that any official document had been faked? — Witness: I cannot say that I believed any official document had been faked. Did you not suggest that it did not suit Mr Bowyer or one of the commissioners to allow certain evidence to remain?—The words are open to that construction. What do you mean by the simple plan of suppression? Who did the suppressing?—l don't know. Sir John Findlay : And what about this sentence —“And it must be obvious that t if any faking of the evidence tendered to the Royal Commission is permissible the opportunities afforded to a prejudiced comrnesioncr of making the recorded evidence suit the findings it desires to present are limit Ices?” 1 put it to you tritit it le impossible for any reasonable man to read that article down to that point without ''omin" to the inevitable conclusion that vou arc charging the commission with "bein' l - prejudiced and with. altering the evidence to suit its prejudiced conclusions.— Witness : I don’t accept that conclusion at al |Sir John Findlay: Well, what do you mean by using the words ‘ faking, and ‘‘ jt must bo obvious, and all the rCt -'- • What was the moaning behind these words if not that?—Witness: That is not the meaning behind the words. Sir John Findlay: Here was this strikin'l - coincidence that Mr Bowyer s lefeionccs to blue and Mr Jamesons evidence also did not appear in the official record.— Upon this was based the general romaik “that if it is possible for evidence befoie a Royal Commission to be faked then the opportunities of making the recorded evidence suit the findings it presents are hmit--ICSSir John Findlay;- That is precisely the W Arthur Howes. commercial traveller, Dunedin, representing R. Hudson and Co., gave evidence as to Ins inability, when a traveller for Neill and Co., to obtain orders from the Import Company, Mr Thompson tolling him that he was instructed by Mr Mackenzie not to give him orders unless Neill and Co. would offer bettor terms. , William R. Gordon, of Neill and Co., Dunedin, deposed that m 1912 ho was chairman of the Dunedin Merchants’ Association He had sent to Mr Fairbairn a marked copy of the Otago Daily Times in June 1912 containing a letter of his. m which he had said that if the merchants were called before a proper tribunal they -would give evidence. ... Mr MacGregor: Was there anything in Mr Fan-bairn.’a action at Dunedin to suggest that he was attacking his rivals?—Yos. “ I have some things picked out,” said witness, with a c-opy of tho report before him sprinkled with markers. Sir John Findlay took exception, but witness was allowed to deal with what had taken place ah Dunedin before he (witness) had written his letter. Witness referred to

It qu-K-iion in which Mr Fairbairn asked what goods had to be purchased from the Merchants’ Association. Some of ' these articles could be purchased by Fairbairn; but still he had that list put in as representing that those articles were controlled by the Merchants’ Association. His object here was to blacken the Merchants’ Association. Witness gave several instances warranting, he claimed, the same conclusions. The merchants, he said, would never have refused to give evidence if a fair number nf commercial men were on the commission. They refused only because Mr Fairbairn had attacked them. This closed the defendant’s case. Andrew Fairbairn was recalled by Sir John Findlay to rebut evidence given by Iho previous witness. He said his questions had all been directed to fulfilling the requirements of the commission. All his questions were strictly relevant to the Issues raised by the order of reference. The court rose at this stage. ' When the court resumed it was announced that the following issues had been framed.

(1) —Does the article of October 15, 1912, charge the members of the Cost of Living Commission, or any of them, with having dishonestly suppressed part of the evidence of the witnesses Bowyer and Jameson in the official report of such evidence? | (2) —If so, is that charge time? ' (5- —Is the said article a libel on the plaintiff ? 1 (4) —Does the letter signed William R. 1 Gordon accuse the plaintm of having accepted the office of commissioner for some improper purpose? j (5) —If so, is that assertion true? (6) —Is the said let’ r a libel on the : plaintiff? i (7) —Does the letter signed “ Merchant ” allege that tho plaintiff was appointed a commissioner on account of the business relations between himself and the Hon. Thos. Mackenzie? (8) —Was tho plaintiff appointed a commissioner for that reason? I (9)—ls the said letter a libel on the plaintiff? 1 (10)—Does the letter signed “L. R. W.” ! allege that the whole of the said

coramission was appointed for the purpose of enabling the plaintiff to attack his business competitors and to further the interests of his own firm? (11) —Was the said commission appointed for that purpose ? (12) —ls the said letter a libel on the plaintiff V (13) —What damage, if any, is the plaintiff entitled to recover from the defendant in respect of (a) hie first cause of action, (b) his second cause of action, (c) his third cause of action, (d) his fourth cause of action. Addressing the jury Mr MacGregor said It was for them to say which case they preferred—that of the plaintiff or that of the defendant. He would ask them to consider the series of alleged libels on the plaintiff. A libel had been said to be something written and published and which injured the reputation of anyone and made people think worse of him than ho deserved. The question was: Did the words appreciably affect the reputation of the plaintiff? The first question they had to put to themselves was what really was the

reputation of the plaintiff considered as a Royal Commissioner? . Did the plaintiff, as ne alleged, serve on this Royal Comm.ssion honestly and fairly in the sole interests of the public or was lie there to serve his own private ends, to discredit Ins business competitors, and so improve his own business/ tie would ask them to look at what led up to the alleged libels. They had the letters from the plaintiff’s firm to the Attorney-general, the Minister of Commerce, and members of Parliament. The Ward Administration, which was then in power, did not appoint a commission. The Mackenzie Government, which then came into power, almost immediately appointed a Royal Commission to inquire into the very questions raised by Fairbairn, Wright, and Co., and appointed Mr Fairbairn a member of it. In the beginning of June, 1912, when the commission was sitting three letters appeared, and the leader complained of appeared in October, after the commission had concluded. Then there was the letter from the plaintiff’s solicitors in October, 1912, giving notice of the action and asking for neither an anology, with-

drawa], or explanation. The defendants replied denying that the leader bore the strained construction put on it by the plaintiff. Then for six monies nothing further was heard, and the Otago Daily Times naturally concluded that nothing further would be heard of it. Then the writ was issued. Did Fairbairn’s attitude in ■waiting this unconscionable time impress the jury as the action of a man who had been foully libelled? Counsel invited the jury to put themselves in Fairbairn’s position. They would at once have either inflicted personal 'chastisement or instructed their solicitor to proceed against the newspaper. Sir John Findlay: He instructed his solicitors. Mr MacGregor: The fact is that nothing was done for six months. That is not the attitude of a. man who had befbn wronged. He waited till the documents and evidence had largely disappeared-, and then tried to make money out of the result. For two years he took no action in regard to the letters in the Times and Press, and now he told them that he would deal with Godfrey and the others when he had finished with the Otago Daily Times. Mr . MacGregor said that the jury should consider whether Mr Fairbairn was properly 'on the commission. Was it a proper thing for him to sit on that commission after the attitude he had taken up the Merchants’ Association ? They should also consider whether the evidence was, in fact, suppressed from the official record with or without the sanction of the witness interested Fairbairn had brought the trouble on himself. Was it not an indecent thing for him to try a matter in which he was personally interested and sit in judgment on his own case? Fairtfairn’s first, impulse was to refuse to act on the commission, but he sat and acted throughout, and took a very active interest in tho proceedings. As to the loading article in the Otago Daily Times, Mr Fairbairn had concealed any knowledge he had of the real facts when the two letters appeared in the Press and Times. Before the leading article appeared in the Otago Daily Times. Mr Godfrey’s letter to the Press and Times was absolutely the same as that which appeared in the Otago Daily Times. Mr Godfrey, despite Mr Fairbairn’s depreciation, was a man of high standing, and he had drawn pointed attention to the omissions of evidence from the official report. The jury -would have to consider whether the publications were libellous or fair comment. They should also consider whether they were technically libellous, and whether Fairbairn was entited to any damages after his extraordinary delay and his inexplicable conduct. This was not a conflict between Fairbairn and the Merchants’ Association. The Otago Daily Times, with other newspapers, from the first took up the position that it was a wrong thing for Fairbairn to sit on the commission. If admitted letters against him, and would have admitted letters in his favour. The discrepancies in the evidence had been pointed out, and an explanation asked, but no explanation was given. The article was written in absolute good faith. .■ The editor had gone into the box, and had given the jury a frank account of the circumstances under which he wrote the article. He was inspired by his duty as a public journalist commenting on a matter of public importance. The article did not name Fairbairn, and it did not refer to him. No other membej; of the commission had taken any action. Why should Mr Fairbairn put the cap on his own head? Mr MacGregor continued that the article insisted on the necessity for the reports of Royal Commissions to be accurate. _ The report was not accurate, as Bowyer’s evidence was omitted and it was not explained whether it was done with the sanction of the witness or not. Mr MacGregor suggested that one farthing set against the issues for damages would be more appropriate than £250. Sir John Findlay said one of the commonest practices of the Bar when counsel was addressing a common jury (and the commoner the jury the more marked the practice) was to endeavour to inflame the minds of the jury against a man because ho was a wealthy man. He had never heard that so used as his friend had used it before a special jury of intelligent men. What was it if Mr Fairbairn had made his way in the .world? What if he had won? He had won honestly, and under the law. The jury should ask themselves what wore the charges made’ here. They were asked whether the plaintiff, as one of the commissioners, suppressed, tampered with, and faked the official document. He was said to have done that. It was said he did it for. the disgraceful purpose of misleading the people of New Zealand and Parliament. Did he do it, and did he do it in hie own interests, and to serve his own ends so that the evidence was faked’ to appear to justify a dishonest report. That was what the article plainly imputed. His friend had boldly maintained that the article was fair, and that so far as it related to statements of fact it was true. What did the author of the ..article say? Did they recollect the somewhat sorry spectacle the author had made? What was the substance of Mr Hutchison’s evidence? It was this: “-I cannot justify it; I cannot make charges of suppression against the commissioners.” When the author of the article said: “ I admit the charges are untrue and such charges cannot bo made,” how could Mr MacGregor plead justification? Sir John Findlay said, he condemned the paper out of the mouth of its editor. He quoted what Mr Hutchison had said. He had admitted that the article was open to the construction that the commissioners suppressed evidence. The editor admitted that he did not think the commission suppressed information. Tho editor had given away his friend’s whole case. His Honor would direct the jury that it was not necessary that Mr Fairbairn’s name should have been mentioned, but Mr Fairbairn had drawn the fire all along the line, and the article would never have been written if it had not- been meant as a blow at Mr Fairbairn. The three last libels referred to the plaintiff expressly. The charge against Mr Fairbairn whs that in one of the shabbiest ways possible he had suppressed one of the men’s evidence (and. another’s evidence) to-advance his own interests and so that he might further his welfare in competition with the other merchants. They should put themselves in Mr Fairbairn’s place. How would they like to read such charges against themselves? Would they sit down under a charge oi that kind? He took leave to think that no man with self-respect would allow anybody to make such charges against his honour. Mr Fairbairn was bound to go to the court to ask a jury to convict him or discharge him from the imputations that had been made. Within a few days of tho appearance of the article Mr Fairbairn had gone to his solicitors. The delays were the law’s delays, not Mr Fairbairn’s. T* was

partly secured by his learned friend. His learned friend had complained that he (plaintiff) had not asked for an apology, but it was quite a common practice to issue a writ at once. Where a letter was Written to a paper asking it to name its solicitor it gave the paper a chance to inquire and ascertain its facts. Why did not the editor communicate with the official reporters and find out whether the evidence of Bowyer and Jameson had been suppressed ? So far from the delay being against the plaintiff it was against the Times, which had not taken one step to secure an investigation. •Mr MacGregor: We assumed that the matter was dropped. Sir John Findlay: Here you have counsel standing to his guns, telling you that the charges are true, that ' evidence was in fact tampered with and suppressed. The man who writes the article denies it. Look at that picture and on this! Sir John exclaimed dramatically, pointing first to the witness box and - then to counsel for the defendant. “What expresses the difference? Malice! Malice! Malice! Behind the Daily Times lie tile wealth, the force, the influence of the Merchants’ Association!’’ Mr MacGregor laughed. “It is the association we are fighting, not the paper,” Sir John continued; “and it is because that is true that Mr MacGregor has to come here and make out a worse case then the writer of the article makes out!” His learned friend had asked Fairbairn if he did not “coach” the witnesses. The jury could recall the long line of scoff and scorn and insinuation with which his learned friend bad pursued an honest witness. There had been the insinuation that Mr Mackenzie financed the plaintiff, which the plaintiff had denied. “Look behind my friend,” said Sir John dramatically, pointing to the benches occupied by an apparently inoffensive public, “and you will see the men whom we are fighting today, and the malice that is behind by learned friend’s instructions.” The warfare carried on against Fairbairn was not conducted in a fair and open way. “No man has the right to use the poisoned stiletto of defamation tb injure an opponent and charge an innocent man with conduct which means a crime. If a newspaper can hurl these attacks at a man who takes a position on a Royal Commission, then God help your Royal Commissions! All this rhetoric from my learned friend is due to party abuse. It became useful for party purposes that the commission should be a stick with which to hammer a late Government, and God help either the record or reputation that gets into the filthy vortex of party abuse!” Mr MacGregor again laughed. Sir John Findlay: My friend has never been in politics, or he would not laugh. Mr MacGregor: I have never been in politics. Sir John Findlay: I hope he will never go there. I have too much respect for him. Sir John, in conclusion, referred to the question of damages. These could not be measured in pounds, shillings, and pence. The libel might penetrate to every part of the world to the injury of the plaintiff. He invited the jury to consider the question with the cold impartiality of a judge. His Honor, in summing up, said he would occupy the attention of t v j jury for only a few minutes. The jury had the article before them) and it was for them to say whether it did not charge the commissioners with dishonestly suppressing evidence. His Honor went on to review the evidence, and in concluding said: As to damages, if the article was libellous the jury was entitled to give the plaintiff substantial damages, even though they had no evidence of loss. To make a charge of that sort against a man was certainly calculated to injure his character seriously. In considering the question of damages the jury was entitled to look at the conduct of the defendant company eince the time of the libel, and they were entitled to consider the attitude it took up during the trial. Mr Hutchison, the editor, did not take any . trouble to find out the facts as to Mr Godfrey’s letter other than to look at the official report. Then a letter was written by plaintiff’s solicitors when that writ was issued. One would have thought they would "have taken the trouble to find out the facts and find out how utterly groundless were any charges that the commission suppres3i»d evidence. They appeared to have made no attempt to find out the truth, and right up to the present time it had been said chat the charge was true. The jury was entitled to take that fact into consideration in fixing the damages. The jury retired at 12.30 p.m.. and, returned to court at 2.10 p.m. with the following answers to the issues:— First issue: Yes. v Second: No. Third: Yes. -Fourth: Yes. Fifth: No. Sixth: Yes. Seventh: Yes. Eighth: No. Ninth; Yes. Tenth: Yes. Eleventh: No. Twelfth: Yes. Thirteenth: (a), £250; (b), £250; (c), £100; (d), £250. Judgment was entered for plaintiff on the motion of Sir John Findlay for £BSO. with costs according to scale, and witnesses’ expenses and disbursements, to be fixed by the registrar.