LAW REPORTS.

Dominion, Volume 3, Issue 798, 22 April 1910, Page 4

LAW REPORTS.

; THE "ZOO " LIBEL. CASE FOR A NEW TRIAL ENDED, V A DjECIDED REFUSAL; ; ;

'■■'■. In the Supreme' Court the Chief .-Justice(Sir Robert Stout) and. 'Cooper heard further argument yesterday, in the motion fora new;,trial'of tho libel action, Albert Ernest' Louis •Bertling, superintendent , of'tho "Z00''...• at Newtown Park, v:John7Nort6n, i proprietor of a.newspaper, .called ; "New, Zealand Truth." The "case wSs heard ■last.month;. Bertling claiming L . £2000 "damages. ' Tho special jury "awarded (£IOOO. ■'.. ■■': ; v,yv^-;•';:>-■'.' .'; ,•'

.I'- , 'Mr. A. Dunn' appeared for' NortonV Mr. H. H. Ostler and, Mr. F. B. Sharp for Bertling. .■'.- '■:.■ ■/' ■'■••■ •■~ V'; ''■-'.

f r Judge Cooper's' Decision.-." ";'.. i ;:,' : .Mr. Justice Qooper, in '. announcing [■''■:'■ J] fhis decision, said that the claim as , to ySl :■-• : anisdirectioiii was ...based!. on, : !nV:: (grounds, of which -the /most important s? v :: , 'was to the effect'that the Chief Justice-;-f; i;' ; iaH'tpld the jury- .that the defence had p :<. ; pleaded justification, .whereas!. the, d 0«,;.,: «,;.,: feiice;had not done so.' His opinion v;-|:;;. : :jafter. considering all .that .'Mr; ..Dunn f ;lhad.saidand the cases/quoted' by'him \:'K:-'- was that a plea of 'justification had beeu p '»:..- up. . When the statement I 'of defence E':';- ; paid: "The, statements of fact aUeged p:\i : ,-, to- be libellous; are true in ■• substance f.:- v.'■■;.:•■ end in fact,", that would have, been a ]■'■■'. ■''--', P' €a of' justification, if it had stopped ;;..",■; .there, but. Mr., Dunn, had argued that jji.:;;. i other words limited it to a plea ;of fair. lr.W'<.. comment. After \ quoting /cases,, his. :; Honour-went onjto say thetiaiplea'-in- .;.;;■' /this f forni, might be restricted'to fair" ; : 'comment if the evidence ; called showed, ::.-;; ;; jthat that- was; the intention bf'the de'-' r ■:::.-.; '". fence.: In his. opinion it'was not so in (.-.:.;. tthe present casef.'and the plea was a ;;,. ~combined; plea of justification, and;fair. l'.v, - ..comment.. The plea wasi-severable with \'i': ■;'■.■' Sustifieation 'and fair, commeutj 'and his (Honour had'treated it thus at the trial,, ■■r.,:;..;though he. did. not ..expressly''say ..so; i , ./.'•;,'• /,,-and it was'sb tf.eate'd by counsel'on"hoth ',:.;r .•.;..; sides. It was i properly, left;' by- - his f!-.,'"!.v:'' Honour \o the jury that there'.was' an". \::i- ■'.■■;■ "obligation. on the: defence .to; establish r.;. ; V 'the truth. of all the statements- of fact f,.;;, ; •.■-alleged to bo. defamatory, and-the jury; k: '■".-•; Jonnd that the truth of. those statements s.'-V■;'■' /tad not been established. ~;/ ;, , ':.

Failure, to Prove the' Facts,

foX'A:-' It was next contendedi .that' "the L:|;.;:.JJudge directed that the jury-, must £./.■ :;"'■■ ..atisfied - that the" allegations;, made ;i-v;.: .were-true, whereas .it was.'-, ;sufficient merely to establish the defence of fair ■ :.>,v;: comment if .the facts we're ./subetariS ';' !:■ i^ially , .■.true;"-..•.-., This. raised;the,quesfc'i;v. : !'*'<» M to what 1 was the position, of a 1VV:;, party, setting up .both' pleas—justifica? E; ",;.'■-r'on and fair comment— : and. failing .to : " ; r" ■Aprbye - justification.. . • There • ;was .' no Si^j/' y tground for the argument that; his ';■■■■■ ... 7., /-Honour's summing-up in- regard to the W:'■ -: ': PJm of justification could • have . been ; ■< : .:": itaderstood by the jury as applying to ''" ; ''■■ ■-■" : -' P- fair comment./; Mr... Dunn : :pN:-:Jnad said that the • jury■'- might have ; ;■■. •j.faeen misled, • and "might have '■■•;.'U::Vthought they! should, find that^fche.plea y^-i: Aw/fair comment , had/'been/'disproved ■;>•■-•",•' - -because one'of the; alleged;statement? :y; /:•:■;,;-of fact ..was in their opinion untrue'. :/:•/..';/-lit was," howeyer^perfectly;': I;. ... ;v;*he.-jury could not'have been : misled by I } r : f "■','. the summirig-ug^bnv th'ia .':■ head/ "The '■,i' :; . V, n J ef .Justice had.ipr.pbably gone-further ;-;r;:J : , than any other, have-gone . |* en > told -pa jury;-that they:cbuld .; v>..; . Tfake all the surrounding circumstances '.'■ r .;v'- lnto consideration in.deciding the plea f ••-.■• :Tof fair .comment. . Tho'iury',s,replies to •r . : .*° e questions, put; .'to ■- tlieinis showed HK: ■■': "•'jclearly, that they.;:..did ■ nbt-imisunder-. i v ;v;■■■:■; .stand,the : the i ■;•■; ■■->:■•: -articles ; were,.: ilot.;'jfajr7.'.comment, ■ and i-":v-\^-';i.l™ e y disbelieved; , the .defendant's- case Sv-> ■"-■■—-■-■.-?•,:■•; ':r ;;-■:;■ •.<■-■■.-•

■'•■■■ ■:■;■ , Rights; of V> ; '^He ; (Mr. Justice Cooper) held that of:a-joiirnalist'-'te- , comment, mp.on the actions ,qf ; public '. 'jnea-.jvas a '.■most, valuable, right;'and.he.would:not ;:like;vto see'-it-in;-anyVway restricted,: :,out it was, nepessary in'the-'public'' in-. ; .terest that that -right! should be exerVcised within proper, limits.. ;.The. coriii went must be fair and must be based yon truthfully-stated V. fac.ts, , and the must?no;t 'descend :to* abuse/ •He failed to see;any allegations of inat--ters of opinion- in-the articles, and the ;! Chief Justice ; could have'•;'• withdrawn >;the issue of--fair comment iiit. he: acted' cautiously /in : not doing-' so. -The allegations as to ' 'gross iguor- , -.ance, .incompetence';.'and stupidity" 'on 'the part of ..the superintendent of '"Zoo," the references, to specific ju;,stances, the .statement'.that he into the•job,'?-and i wasn6t : 'at for' tho these' were v'statenents of alleged fact and,- were not ■■iconimeht.at.all.-/-'- : ...:.--.,.. .-.._-.

: "Low,^Scurrilqus'Abuse^ , '■' . '•In.the second, article the: plaintiff was -referred to; inHerms which' he-. (Mr; Justice. Cooper) ; had, already, characterised, and'would characterisei again, aa low, scurrilous abuse'. -Ho'refefrettito". the expressions'.. ."garrulous' galoot," "gross iricoinpetenco' of this .autocratic biped,'?;/"incompetence o.f'ah impostor." There was no'.cpmmerit in those, expressions!- : 'TKey ;t purppr'ted -to : .--.be statements of fact, - and-'they• wero iow, vulgar, abuse./;;;..,./ //,' ...: .-,!.. .The question whether--the matter-was lone of public interest was Jqne for the Judge, and he'ahswered,'it in:thd< afbut the,questioiLof..the..truth ,'of the statements was one. for the jury, .and , they, answered it" in the negative. ■The jury then had to decide, "as. to "/the question of .fair comnieut;-and they do-,-cided it against the defendant. Thero :was no misdirection .there,. and s there ; was nothing in ; 'the -articles'that;~ was '■fair comment at all. , ''--■ '' : ;

Judge's Direction as 1o .Damages. ' The next ground of the motion was iBS follows:—"The\ Judge.: misdirected .:the.'jury as/to',, damages. .-'He stated :.;that_Norton justified the libol/'and. tliat 1 .'tie jury were ;entitled to, take into, ac-': /count such a,plea in assessing dam- ?&*■" "'-■ '■'■!'■'"; '■ '.;' ..-'.." '"'■'. "■' '

•"I agree : with, that direction of

.Honour,", said Mr. 'Justice".Cooper:. •,;■-'-'//'ln ,my ; opinion, the defence not only ; v ::/Eought to justify ihe libeL at the trial, /, -: "hut put ,a.:plea of.- ; justification; on. re;';../cora, tried,..to..prove. it, .and.fail'ed,to ;J '"do so. Assuming that the plea of jiis- ■; .."tification and the plea of fair-comment ■ / had both.failed, , ino Chief' Justice's di- / / section was a proper direction and was /'carefully' guarded. ' "~~~ -'■■—•■— ■ •■-■-; ./';; The next .cihuso'-referred to the ns . of .the.Cliief- Justice , to.--a.dmit. as : . /evidence a.report presented'to ,th'o City ■ Council, by' Mr. Quinncll, veterinary ■' . eurgeon. He entirely agreed /with; the j.Chief Justice."' The report, was.'.irrele- .''■.'- 'vant.' Nothing in the. articles, could ...;'■;: ,-liavo been. founded ■ upon it, and 'the , . i. defence got all they wanted from Quin- ■'. ness in the witness-box. .The. claim. -.' ihat the verdict was against the weight .-.■': «of evidence had been abandoned. ;

1 The sole remaining ground of the motion, was -thnt the damages were 'excessive. No doubt, the damages were •iargßr thaua judge would have awarded, but it was. impossible to interfere with the verdict of. a jury assessing damages in a libel action. , ;

, In his opinion the motion must he >dismissed. .- 'i-

:•.■ .Remarks by Chief Justice. ■'■ ..'.The ,'Oh'ibf Justice said .that, counsel for the defendant shaped bis defence - es thongli it v.'uro a plea of justification, !"... *ad actually said he was soing to prove

the truth of ..all the statements in the articles. "If that is not justification," said his Honour, "I don't know what is:" Counsel for both parties-assented io tho issues which .his Honour drew oul for tlio jury, and'ho. (the Chief Justice):-in addressing-the: jury had confined attention;.. to''.those..-issues.' , Further, ho told the jury, that, even if they found that all tho allegations'complained of were not true, they.coiild consider ell the surrounding circumstances ana all thei conduct of the plaintiff, and might,then find., for. the defendant on the ground of ; fair comment. That waa going further than .perhaps ho should have gone. It was plain that the defendant; musti lose*'tho caso' unless ho proyed that the facts as.alleged by him •wero tiuo, and the evidence which was caljcd' showed'that the' defence saw that. That was .tho lino, they took'all through, and they failed,'and now they wanted, to coino: and say that '/hue was not the lino they took: He could iiot understand such a case being taken by any litigant. He /was .quit* right.-■ in telling the- jury that they were entitled, in assessing damages, to tako into account defendant's attempt to. justify the ■ libel. 'It would have been wrongi for the jury not to take it into account. .Otherwise they would be encouraging; a man to employ another to libel a person- in court. Ho was ■ oareful to : tell the jury' .to give fair, aiid not ■ vindjf"e, damages. -As to, the alleged direction that, if tho jury did'not agree with the■ comment ] they were to find that it was unfair he; never said anything of ..the sort. In regard to the non-admission of Mr, Quinnell's report, he could not < understand how anybody.who' knew the ele-, mentary principles of evidence could' say that it was admissible. ' ' : .

"When People Were Less Intelligent. ,,

I As to the"plea that counsel for'Bertling ought not to have• stated the amount of damages claimed, he. would Bay that he-had been : attending* courts regularly for 48 years/aid: in almost; .every .-casev;in which -' damaged were claimed, the amount' was mentioned by judges, and Icounsel; ; : JDhey : had nothing to do with English .custom. If the custom of not mentioning the amount obtained in England, , : it was 'one of, those" absurd * practices .which arose wheii .people, in dealing with legal ..mat? ters, were not very intelligent, and lie did not see,, why. .'it: be forced upon .us. .'; : He, at, any rate; would decline ,to ■be guided; by; it, \ unless . thb Court';of Appeal.or tho rrivy Council decided to//that.-Veffect; , .':.-. The verdict, so far; from; .being" against, the ■ weight of evidence,-•.wasr ; a-ij r ust''onby and ho 'thoroughly, concuiSed'"in'.'it." ;i"No new trial could"be grantejl 'onVithe' ground' that damages were ' A judge might, perhaps/'have' given. .smallerdamages, 'but they"cbuM."nbt say. that twelve reasonable men were not competent, to assess the damages in such n case.*''TheTe were" very 'few "Zoos" in Australasia,,:and-.-.if.the defendant had lost his: billet; "he wdiild have been exceedingly ."jh;ejuaiced.....;lf...;a solicitor was allowed .to; g<et V£2OOQ.I w^eii: he was attacked/ say that eIOOO was too 'mycto m ; tiisfcase. V ' ■~-■■.'..■.> ,-■• ■ ■■-'■■■■■■;, ■■■ ■-. Motion for New Trial Dismissed. The motion.was;dismissed'i' , ; : with costs' en .guineas,, and eight - guineas costs f second, • ~',:.:. " ;•.

;An application by Mr. Dunn.for stay of execution-,pending 'ap'pcali was refused. ■•: ; ■■■-.■■