LAW REPORTS.

Dominion, Volume 3, Issue 797, 21 April 1910, Page 9

LAW REPORTS.

BERTLING CASE AGAIN. A NEW TRIAL ASKED FOR. ON MANY GROUNDS. THE SUMMING-UP CHALLENGED. A motion for a new trial of the recent "zooMibel cnso was argued yesterday in the Supreme Court before the Chief Justioo (Sir Robert Stout) and Mr. Justice Cooper. '. The antecedents to the case are that, on March 16, 17, and 18, a libel action was heard.before, the Chiof Justice and a special.jury of twelve, the plaintiff being Albert, Ernest Louis Bertling, superintendent of the "zoo" at Newtown Park, and the defendant, John Norton, of New South Wales, proprietor of a newspaper called "New Zealand Truth." The claim was for .£2(100 damages on account of certain statements affecting Bertling. The jury awarded Bertling ,£IOOO damages. Misdirection Alleged. The grounds upon which it was sought thai a new trial'should be ordered were as follow:—. 1. That; the damages were excessive. 2. Thai the judge misdirected the jury on the following points :— - (a) The judge direoted the jury that Norton . had pleaded justification as a defence, fle had not done : so..' ■' (b) The judge directed that the jury must be satisfied that the allegations made were true, whereas it was sufficient merely to establish the defence of. fair oomment if the facts were . "substantially" true. . .(c) The judge did not properly direct the jury as,"to.tlio nature of the defence of fair comment. . (d) That,the judge : did not direct the jury. to distinguish between statements of•:fact■ and of opinion.. He ' directed that, both the statements of fact and of opinion must be proved , true, before a finding could be returned in favour of Xorton. Such a 'direction,was wrong, in law. .'(e) The jhdgo misdirected the. jury as to.damages...'.He stated that Norton justified the libel, aid that tho jury were entitled to take. into account such a, plea, in' assessing, damagea. (f) Regarding "fair comment," tlie judge directed that, if they did not' ; agree with the ' comment expressed, ■ they were to find such to be unfair. (g) In summing iip, the judge had assumed certain facts as proven, although that was,.not so. Examples were .as follow:—. (i) He nsslinied that the'.iioness ■ .; referred to. iu. evidence was suffering.,:ffom' ficketts when left at . '; Newtown Park, (ii) It was stateU [ as ..a fact to., the jury, that . . Arthur (the head-keeper) had lost his' position - in. the gardens . thrpugh Bertling. (iii) It was ! stated that Arthur ■ was not in the "Zoo" after Maroh IG, 1909. (iv) . It,was put to the jury that Mr. Touill had stated that a file had been used on both iguanas.'

, 3.'That the judge rejected'evidence which ought' to 'have been admitted— namely,' a report by .Mr. Quinnell, dated May 15,'1009, to the Wellington'. City Council. This report and its contents had been referred to in the articles containing the'alleged libel, and the comment'tu such articles'had been based on this report. The judge had also ruled that tho of the. '.other facta stated, in .the article, but iiot charged as libellous, could be given by Norton.

.'4.''That counsel for Bertling had men- n tioned, in. opening and concluding the t case, the amount of damages claimed by Bertling, such, mention being unfair.and Q improper.' .:■■':■'. : ; 5, That the verdict was against the l weight of evidence. :. " Mr. A. Dunn appeared for Norton, lir. H. H. Ostler aucl Mr. 1Y B. Sharp for t Bortling... The Shorthand Writer's Notes. c Mr. Dunn stated that he lad expori- f , enced. some difficulty m legard to the ' summing up of his s Honour the Chief J Justice. .He had not been able to file J it! Mr. Le Grove, shorthand writer, had ' declined to make ah affidavit that his notes, as 1 transcribed, were substantially ! correct. The Chief Justice: You had no right , to • make such a request. That was not a peeper thing to l do. jji ono case the Court of Appeal would not allow ah c affidavit to be filed. Mr. Justice Cooper: In one ;case _ in ! ■yhich I was concerned Mr. Justice Rich- j mond woali not allo'v an affidavit to te read. ■■.-■..'■' Mr. Dunn: I will ask leave to file tho ; summing'up. '; The Chief Justice: That is absolutely ' wiongi Mr. Justice Cojper: Tou may hand a copy to me.' Mr. Ostler said that the, summing up was incorrectly reported in regard to certain minor particulars. One case which had been referred to bythe Chief Justice had hot been fully quoted. The Chief Justice; I think that the report is a fair one. Mr. Dunn said that the main ground of tho motion for a, new trial was that tho Chief Justice had assumed that the plea of Norton w»3 a plea of justification. The Chief Justice: Whore rid I say that? Mr. Dunn: Toor Honour's direction assumes it. • The Chief Justice: What I assumed was that you could not comment unless you had some basis of fact, 1 do not .think that I used the words "plea of justification" in directing them tn the law at all. Your senior counsel did not object to my putting the issue to the, jury: Is the statement of facts true? Mr. Dunn: It was not competent for us to interrupt your Honour. • Mr. Ostler: Your Honour WTote out the issues, and handed the same to them. The Chief Justice: You might objected, or asked me to add another issue, Mr. Dunn. ,' : Mr. Dunn': We submit that the matter was iiot in the proper form to go to tho i ur y- , ..•■. ) The Chief Justice: You cannot take exception to tho issues going to the jury; you did not object. You did not ask me to put any special fact to the jury. You simply allowed tho issue, to go to tha. jury in the form of your plea. Ono issue was this: Were the statements of fact in tho article true? You allowed that to go, without question. A Solicitor on "Grammatical" English. Mr. Dunn: I propose to cito authorities to' show that, technically speaking,' this defence was not a plea, of justifica- ■ tion, but one of fair comment. : < Tho Chief Justice: I do not think it is a mattet or nioniiti whether you call it one thing or another. Mr. Dunn: In ono place in the summing up, your Honjtir, you do refer to the plea of justification., .■• ■ Mr. Ostler.: And that is, tho place in which I soy your Honour's summing up was misreported. The Chief Justice: I cannot recall what I said now. . • . .

Mr. Ostler quoted, a passages in the I summing up, at. which he said, the words "plea of justification" should bo replaced by, the words "question of damages." ' "As it appears," said Mr, Ostler, "it does not read grammatically. I notice' that the word 'justification' is not used throughout the summing up, and this is an error oii the.part of the reporter." . The Chief Justice (after referring to the transcript): Tnat must have been s'o, Mr. Dunn; it does not .make sense. 1 was referring to damages. Mr. Justice Cooper: I could not understand that, but it is quite clear now. It is nonsense if you read it "plea of justification" Mr. Dunn remarked that in another part of the summing up, his Honour had said that Norton might have apolo- ! gised, but instead of doing so, he had "jiistiilod it." That was consistent with what the reporter had written in the [passage quoted.

"You Justified the Libel by Fair Commerit." The Chief' Justice: ,Y6u justified the libel by fair comment, and by the allegation that.the facts were true. You relied on having proved all the facts. . Mr. Dunn: So tar as they were facts, wo proved them to be true, and eo far as tne articles were comment, wo proved fair comment. The Chief Justice: Thero was very little=Y'comment", in the Articles, as far as I could see. . When Mr. Dunn referred to the fact that his Honour, at the hearing, had not allowed the report of Mr. Quinnell (veterinary surgeon) to be put in, the Chief Justice pointed out that QuinneU's report to the City Council was no more valuable, for tho purposes oi the Court, than ah unsworn and unpublished letter to tho King of Tonga! , Mr. Dunn: We defend our action because of the report made by Quinnell to the City Council. The Chief Justice: Which you had nevet ssen. Mr. Ostler: And which was not in existence until after tho first two libels were written. The Chief Justice: If a man ohooses to libel somebody in a letter to the mayor, and comment on it, your defence is that he has been libelled by another man ? Therefore, you say, "I am not guilty?" Mr. Dunn: No; I do not say so. The Chief; Justice: You treated it as a plea of justification right through. You cross-examined Crewes' as to Bertling's competence. Mr. Dunn: We did not know what view the jury would take. The Chief Justice: Very likely. In order to make them take tho view that ho was incompetent, you led that evidence. - i ■ Mr. Dunn: The cross-examination was not to prove that hs was incompetent, but that our opinion that he was incompetent was not unreasonable. Tho Chief Justice: No; you went farther than that. . "Did Not Mr. Wilford Go so Far as to Say-?'' Mr. Justice Cooper: Did not Mr. Wilford go so far as to say that the man was a perjurer, and that his evidence was incredible?

The Chief Justice: Yes. Mr. Dunn: There is great conflict on one particular point,.as to whether a file was used on the iguana. The Chief Justice said that. the. line takqh by thd defendants In the case had been to make it appear that only their evidence was worthy, of belief. After further argument on Mr. Justice Cooper expressed the opinion that if. a defendant established the facts published, then, provided it was held to be u matter of, public interest, the onus of showing that the comment upon' the facts was unfair rested with the plaintill. ... ~ ■■■.: The. Chief Justice: You shaped your caso to the jury that he was incompetent. You never raised the : point you are now raising at all. Mt. Dunn: It is our defence on tue records. . ■ The Chief Justice: That doesn't matter. •■• Later, when argument reverted to Quinnell's report, the Chief Justice put the ,-. following question to Mr. Dunn: "Suppose thac Quinnell had written to the Governor that the Mayor was a murderer. Is that any' reason why you should publish such a statoment as, a fact?" ' .: ■ • ■ Mr. Dunn: Quinhcirs report goes to show honesty of opinion. Mr. Justice Coopet: How can you base Support for honesty of opinion on a report that was not in existence? . . The Chief Justieo: It was not written when you wrote your first article. Mr. Dunn: That is true. I admit that. The Article: "Low Abuso.' Mr. Justice Coopsr: How can you justify ogling a riiim "a grossly, incompetent, autocratic biped"? You speak of "the antics of the garrulous Oerinan galoot," ThOsa are statements of fact. How can yr.u call that fair comment oh a public man? That is not comment, that is abuse; the distinction has been drawn in many cases. I should say that this is low abuse, and not comment at all. To begin with, it is an insult to the man, and, secondly, an insult, to-the na-

tion. ' ■< ' ■■•■ ■'• '■'. ••••■ Air. Dunn: Is was proved;that he is ■»., German. ..>•'•'.',-r:. ■,' : -.,'.. .'■ The Chief Justice: Ni, the evidence was that ho is an Englishman. Mr. Dunn: Well, he is of German ex-

traction. .• ■ ' '~ Mr. Ostler: There is no evidence ot that. '

Argumont having como to too question of whether the damages awarded were excessive, the Chief Justice remarked that in his opinion the amount awarded by tho jury was not excessive. In liljM actions juries took into consideration tlift nature of. tie libel and the attitude of the paper. , -.' ', Mr. Justice Cooper: Junes are much more iiberal in awarding damages Hum they used to be fifty yeais ago.'-- "... In regard to the point mado by Mr. Dunn that mention of the amount of the damages' claimed had been ' improperly made, the Chief Justice Sitid that he did not agreo with tho English practice, referred to by Mr. Dunn. The pleadings, including the statement of claim showing the amount of damages claimed, had been taken by the jury when they left tho Court to consider their verdict, and no objection had been made by counsel for Norton. . , ;'• " .' , Mr. Dunr. abandoned a number ol I'm points set out. ■ . Mr. Ostler quoted a number of authorities, which, he said, proved conclusively that the plea in this case had been onn of justification. When Mr. Dunn hjl made application for a special jury -he himnelf- had pointed out thw. expert wi■den<ie was to be given to provo the tacts

justified. .'■■'.' . .-: . . ' Tho Chief Justicei It, was v> trowd on the motion for interrogatories. Mr. Ostler said that tho whole evidence tendered by Norton at the trial had been to prove justification. In his concluding address to the juiy, counsel for Norton had said, in sp many words.' that he propo-ed to justify the published statements. .'.,,, The bearing of argument will bo returned at 9.30 o'ebek to-day.