NEWSPAPER SUED FOR LIBEL

Dominion, Volume 7, Issue 2198, 10 July 1914, Page 8

NEWSPAPER SUED FOR LIBEL

FAIRBAIRN. V. " OTAGO DAILY • - TIMES" CASE FOR THE DEFENCE , INTERESTING EVIDENCE fl?r. Teleiranh.—Piose Association./ .'. '(■ Ghrlstchurch, July 9. The caseJii-.which Andrew Fairbairn claims £10001 damages for alleged libel by the "Otago'Daily Times" newspaper ivas contimied,to-day. Sir John Findlay and Mr. Wright appeared for the plaintiff, and and Mr. Stringer for the defendants.

; . Elaiiitiff'st'cioss-exainihation ■ was coholudod.': fHe/stated : tliat he knew before going on the Cost-of-Liying Commission that: ; the--Mercliants , ; Association -.had kepfc prices from falling jui reference to:commouities'it controlled™ L He' ; sifid'";t]]at- the other Commissioners were .nbtswaxe'dby.liimT ,-, ' .'" • ;■ -. jMnM'Gfegor suggested that with the exception of Dr.:Hight and Mr. -Fairbairn no one was.qualified to act-on the Commission. .;' '.'■' •."''■ ;.-:V ' ; : : ■ ;r ; j/fecase for-the Defence/; : ; • ■'Mγ. M'Grpgor,;ih opening the'case for th<s_defence, said that ; a; newspaper lnrd a •;' right to criticise. ■' in .the interests of the cpublio.- -The'plainfciff was -a ;publio man, , ! and .the defendant company, as a hewspaper, ; .did' from' tiriio , to time' comment freelyj oh the :Cost-of-Living Comniissipn, and on the action of. the plainMff in fitting'on , that. Commission/ .It Mv'as .considered .that, by .sitting on that ComDiissionvFiairbaim .acted wrongly, and even (lishonourably. He had in the: box confessed;that,he had; made up his : mind.. that ;,thev Merchants' .was.; guilty, of. wrongful : actsy and yet; ;he ■weht,;ther6j-.knoiving:that tlieyj were ; his■■chwfiriyals/.and proceeded' to .sit'in Judg^enti;:upon ,, 'them'.-'/Letters' : (i>uKued .counsel) appeared while."the'.Commission, was;'sitting, Xand : an; article'.was! 'pub.;li3hed;after';the'.report"was made';- It ■ had .to; bo ;: ; determined' whether'. these letters were r ;libellpus; and ■ malicious/ or only .fair...comment,'■ The question • was ■whether; these■ comments.-' hadv'.;6ver> stepped tho'line:; - : -'-' , \ : .'\-.! .•> ■ L. ;■ ■"■

In the caso of the leading article, said Mr. M'Gregor, tho crux of the question nae that a comparison of the official report showed a, discrepancy with the newspaper report of the sitting held in. Christchurch and on June 18, 1912 On tho basis of this, plaintiff claimed that the paper had alleged that the, Commission had impropeily and dishonestly tampered with the evidence by suppressing it. It was curious that Fan bairn was not mentioned in the aiticle, and yet he had put tho cap on lus head and come out and asked for damages in respnet of the article For the defendants, it was lepresented that the article was published without malice, and in good faith, and uDon a privileged oceas'on

•'< Therfacts.-i'were, that';in ; .Christchurch; "Mγ." ';putnber't Bo.wyeivaiid Mr!'; Ja'miesbn-' : g"hye': .'evidence: '.'■: In the-new:spaper.reportj Bowyer was/represented- as '; having .'referred tol/Rick'ett's^bhie,.; but.; in3Njie\. : of-' ficial was.'missiii'g, and the 'point:was whether,'in .fact,, he had ,',made A ;\thatj. reference.'i.;.|Npw,( i no' sHigle-.witnessvhad sworiiithat'Bowj-er did' not;'make, that '.reference."'; Yet .he would call>'residents of- ■ Christchurcli who-would -swear 'that'he' did refer to lleckitt'sl-blue'././rAs an .;illiistra'tion : of his ■>;argument" this;' was : -the ".principal--'point,;and;it' : ,was'.almost inconceivable that : .;>- Fairbairn; ; '-• ppuld : ;'■-' not: V • have heard: the', statement;-;/ O^;-:.;; 1 :'-, v, •■■' •'

. !>''Continuing',; '; saidl.that both' the ; Christclmrch -newspapers,;'; it .'wojdd be', show.nj' Had references to the stated merit 'abput-,Reckitt's ■ blue,-. 1 arid one' of the reporters would: be; called-to support his;report. : ' v ..Within'a'few-weeks of the report being published, cqntiriued Mr, M'Gregor,....it}-became,obvipijsVto those wh 1 0/studied/iit'.'t.hat .this!'.mistake -had been ; : lnadet* SSlrvAGodfreyS .thereupon; '■.wrJfe;at)l6iifethy;Jn'Sieijii6mb6ir;and--'Octo-' ber^:;l9l2f;ix)'Vthef.'-PrMs,!^ ; ; v and.::'ao: .•"T™Mj!^,steting-jie--facfa l , and'.malung not; .putting .the; /witnesses"; right.", From i 1 that' day.!; Fairbairn'^hacl'.not.moved ; to.vc'orrect;-thV, matter.; or^to'.briiigoMr. jGodfrey .-.to; book:' ''..These, statements' became'commoriiproperty all!byerj'.the,Ddminioiil ana'vthe ■ ''ptago; Daily iri:'the'ir;''du^'a ! s.public.ijoumaßstSi re-■ letters. ;H; : After; waiting! for a.time;tb. ] s"£e, if ; any explanation followe_d,'.!4nd.;iMing; !none, a... '■leading:-.ar-ticle.was:written, ordinary course; of businessiva'nd : Thereupon .fpllowed.;Faifbairn'a. : '.solicitors'■.that, the 'article: was'aimed;at:Fairbairn,.: : and.'made no' suggestion' of -withdrawal or ■■'•'apology.. The;:s6licitorsV'simply i said; that .they to sue. for-libel. ' ; v !..: ' ■■ ■f \.'}'-Ih j Question of Apojogy. - '... : ■ •.' ; "The position was ..'that .-in "all cases of threatened-ljbel,;; an apology: should first be demanded. ; . r , ■..■•'■\:'.^\u^-\^-'':i'-. '■ :- ! Th'at'refers tir slandcr^notvlitfe]^;:::-::.;!:;; ■">..; /;> ■'■■.'■ '■; t.His HoinourXi'They': were not' ; bound'to ; /' :'>■,;«■ r \ •; " -Mr.'M'Gregor: I,don't s'ay.'it, is law— I say.it is. practice.- - ;.: . ;i ;v,';',''yj.■'■ ■'■■■ . .Findlay: Would they have fapolpgisedfu;' : > >k ■■•.'.i,:.;'. •';.' .■ ' :■-'.'. >■; ■': V Mr. M'Gregor: I have said they would if tin's had.been, aeked.; : '!.. !..:,.;' ■ '■ (. •:.: His Honour: iThe writ was,riot issued itill;April; ■:^> : C <-\ "■'..-:' : ■:•'■': •;' ; ' : Mr..M'Gregor:lVam to' that; He '-'added'.that after ;tho first letter, no-"j ,tuing;.;vas. heard for six ,month's,; when the .writ was issued without: , , furtn'er.n6that;'!;interval all; the"'docu-j mehts inlthe newspapor offices had'.beeii"' /destroyed, .and" Mr. .Gordon,! chairman 'of; the; Merchants' Assooiation, :had-gone to England. Tlioii proceedings' were taken, and that was;'why now there was so much difficulty in: ascertaining what were:the real facts about Bowyer's and Jamieson's evidence.-, Yet Mr. Godfrey's letter had : been allowed to pass / un-. noticed; By -Ms; , neglect to:answer, that; 1 Eairbaimhad:' brought this case aboiit. It';would also be. seen that he 'should never, have sat upon the Comhiissiori at all; "Any right-thinking nian would see that, and;by doing~so Fairbairn had brought the whole thing upon himself. : •' Suppression 'of Evidence. •'.-' : ; :Mr. ; iM'Gregor'stated, that it would bo,, proved that there had been a suppression of the evidence given by Jamieson and Bowyer.' .The. jury, would have to come to the conclusion, after hearing the evidence, that Bowyer had,given evidencp about Heckitt's blue, and that Jamiesori had contradicted it. Mi , ; Godfrey! had. drawn'attention, to this, and the jur-rwould be asked to.believe'that his charges were substantially true, because; if they were riot, they, would have been complained' oL ■ - . ; ■" . :.". Counsel ...went on to refer, "to the.' letters published by the: paper. He. held that the greater number of people'wpuld hold that tlie;'Commission was superfluous and a waste of money; 'He maintained that' Mr. Gordon's letter was true, and,<ihat. Fairbairn did : get a chance to "grind his axe." The facts wore- truly stated,.and the- 'comments, were fair: and bona fido • opminents. Other letters were also , reviewed,: and their substantial accuracy upheld. Couiisei maihtained that the; Hon. 7 J'. Mackenzie had appointed Fairbairn becaues Fairbairn was a friend of his, and because Fairbairn was the man who.was working up the Cost of Living Conimis.sion so as to go aud sit as a judge.upon

his rivals. It was.reprehensible. Fairbairn had ; made attacks'.'upon his trading rivals; and the comment that the Commission had been appointed to enable him to attack his rivals was fair. > A.Reporter's Testimony.

John James Pollard, newspaper . reporter, engaged on the staff of the■''Lyttolton- Tnnos and. Star," said that ho had reported, -the whole' of the Christchurch sittings of. the- Commission for ■his papers, Referring to the evidencegiven "by Bowyer. on June 14, 1912, ho said that he' remembered a referenco being , made to Reckitt's blue. Although bis 'report of .-the witness's statement was condensed, it was, correct,as far as it .went,' and accurately conveyed his meaning. ' ■:' '■■■'■

Henry Oakley, of Taylor and Oakley, was called to further support tlie fact of Bowyer having referred to Reckitt's blue. Sir John Findlay, however, said that he was , prepared to accept'the evidence given by Pollard as true, and to admit; that Bowyer had referred to Reckitt'sblue. .. ■ ■'- '-. '' •:.,■,.-

A.'JV. Jamieson, manager of the New Zealand Farmers'..Co-operativo Association, said that .lie had had four copies'prepared of his evidence to be given, before the Commission.- He had not' supplied a copy to the newspapers beforehand. : After he had finished Mb state-; ment, he was cross-examined.. 'He had left out some passages in' reading it. "Besides this statement, did you have any other papers with you?" .asked Mr;. M'Gregor. : .. ' j - .:' "Yesi", said witness. "There were also. 'prepared four. copies of a. statement dealing specifically with the evidence given by Bowyer and Westgarth. I also had a book, and price lists covering a'long period."/ ? : ' ' , "When you were being cross-examined word yoa asked; about Bowyor's evidence?" asked counsel. : , : ■.: •.. ■■■ "Yes," said witness;, "I asked in response to the question, .'Do yoii refer to Bowyer?' and,Fairbairn replied, 'No, I have.another'matter in-'my-.ihindi'," - , A Supplementary Statement. j in, reply'to a question , said: "As , :I finished my., evidence, I picked up these that I had prepared, and handed them over to-Mr. Collins." . .-"That' was what is; called, a;supplementary- statement?" queried/counsel.' •V"Yes,-"'-.'replied^^vitness.' : . ' .-. /■■:' "TOiat'did you.do'-with the price-liet that yo\L had?'.'-. . : t ' :' , \ , ' ,\ ."I am- under the impression that I handed.the price-lists in. with, tho report." - *-'■.;! : : -"" ;'."'■'■■"■.': ':': '/"):.. ■"■

."■.."Did •■you- give .copies. : of th'e supple-; mentary. report- the- same day to the Press?" asked,Mr; M'Gre'gor! ■.: : "I .sent.found-to the.Cost of Living .pommissidnvtliatvaftern'oon,". said withesa v ,',"to;get 'a. copy of. it,:..as I had handed 'the iclerk. all my copibsl- .1. -am. not .'sure'-whether I got one or: two. copies'.back,:.Aftei:l liad finishedthe business, T'.went '.rdund-to- the : : -(Press'"' Of'.fice and;hahded-a' copy.to, I -think/Mr. Kelly; to ,be published." - '■■'■■'■■'-.■':. '■"Did you.'believe Mr/ _Zelly to believe,"■ ', asked. Sir. John Findlay, "that the supplementary statement; was presented ;to the Commission in: tho same ■way as..the'other, statement?" ■'.''•* ;':.. '

.':'■■:..-"I don't.think, so," replied witness. . ''.'Don't you know printed it ns. part ;6f'the-statement?" •", '~: \ : :• "I. am not responsible-for what the paper/did."',: ■-■'.'■. : ; : ■>' :•■.",-y : . .■::.;.•■_. . :','JButi'-iri; the 'Press' of June "ll),' it appeared as paft-bf the original statement.", i'.•-!":;■■ v' ,: v'.»: ,■■■■-,'■;■'•: ..'■'■ :^'Yes; .":.:rV,!;xV.v.Vv- :; ;-•;■:■'/: :;;;./; ; /'.'So'-'that. Mr. Kelly'; must: have' inferred, from yojivthat it. was.. liarided'■ in in the same-way! as ithe first statement?" , ' "'."Possibly;? , '- ;. r:, V;, V ■'..:.''.. .. ' "Did you ever tell Mr. Eelly that his inferencewas/Tvrons?"' 'r;"?' ! ' " ; .;:.';:,:.-:' ' • '-Tliere .was p no 'occasion to do:"'. so," said witness.; .■'■ (;.,:;,, y';., r, ;y ■;, ,; . .'■; . "How did both; papers.conie .to publish .the full, text.of your statements?" asked Sir John , TindkyKv.;'' 1 y :\~ , -:" "Instructions," .said' witness,: "were given .to"-.both' paners'.to .publish ; the statement in M!.".V ; "■:■■.•'. .''■■.. ■'■■'■'. :. ;, ■;■."•■ :, '. ' ' ; :^:!■■':., ' .;V.'.."By myself,".'replied witness. , ;; . '■;'.' ..';'"lncluding. the.'supplementary, state---TBeht?" : ~\-i:'-y.r..' : -<.'-:'-'■■.'"γ-j' ':''/ '■. ' V; ; : ; /^"Yes; '■;■ :: /;,?. ■'■"' <: "Did; you .offer; to pay; for; it as. ad--Te'rtisement, or:at all?" .:", ,' . : ; ■ Witness; -' [I think, wo had tq ■ pay for ■a'-.nortidn"''6f-it:"''•'■'.■;-...'.'V 1 ': ; ': ' -■;:'"''. :; -

;, Sir John' Fiiidlay: "So ; . ;yoii'" actually, had to .pay;.:to-get ; this unr«icl : .supple-' mentary statement published?'■'■ : ••'■•. ; .-.

' Editor In the Box.

VJanies -. editor." of:; the: "Otago Daily .'Times, •'■ said that ho'had. written ;tlie '• leading - article complained of.: He. had..seen' Mr. Godfrey's letter ■in the'.Christchurch papers -directing: attention" to':' a' discrepancy; between the '.reports; published/in.;'. the ■ Christchufch' papers-arid the reportin the Official Report ;6f.the Commission.' He verified , N th<T statement by reference to the Official . Report;:and he' accepted \ Mr.. Godfrey's quotation's from, the , " Chnstchurch papere of June as being accurate. He. waited a ; few-,days. to; see if: any explanation came about these discrepancies,' and- as no explanation. appeared,, he. assumed that there' was none to' offer.;. Ho had since certified ,tlio : extractsj from., the Christchurcli papers.. !' - "Had you any- further knowledge?" asked Mr.;; M'Gresbr.—"None what-, ■ever."- .' ] '.['_,.■:'.■..:■■■• ■.;;!"!< '■~,"■ .-"■;. -..-.' ■■•■/Mr:!: M'Gregor>■referred to a... letter from; the' "Otago :=! Daily.\Tim_es," <: in which it-was said'that Fairbaini'was' riot- in- 'thb : .mind'of the writer at '.the' time'the article was written. '■'~•';.. ■'.-

Sir John Findlay objected and His Honour said thatwhat had been iii Mr. Hutchison's mind did not matter.

Mr. M'Gregor: Do you know Fairbairn ?—"No—never met: him before."

It has ben suggested that this articlo was inspired by malice. What do you bay?—" That is absurd."

. I think your papei^,had commuted on Fairbairnbeing' appointed/previously, 'and bad expressed the ,vjow that he should not: have been appointed ?r— ■".That"; is ".50."..- •■■■ ■'-,-: - ;: ' .. -r ;',

; To; questions about', the letters against Fairbairn, witness saTfl that the coloumns of the paper were equally open to letters in favour cf' Fairbairn.';" If 'any; Wore received they ■ would have been published.'; Before Gordon's letter ap--peare'd*there-' had : been lettors from others»in Dunedin. '.'Before':publishing "Merchant's" letter, which made'suggestions about the Hon. T. Mackenzie, ho'.had-'cbmmuriicated with the writer tc see if he was sure of his facts, and was eiifficiontly reassured to publish the letter^y , '; .' '.'-.;;.-'. ; .;;'';. ■.■ -. : .Mr. Hutchison Cross-Exanilned. , ■-..To Sir-John Findlay:' , 'Witness saidthat .all the letters would hayo been , seen by him.b.efore being, published. ''So that by October, -when you wrote your article, your, inind would ..have been impressed with Fa'irbairn's rascality?" Witness smiled. To further questions'witness said that he had previously given Fairbairn editorial attention. "Shill : I tell you the occasion?" hevbliinteered....... _ , . ' .-■ ; . "No.; I'm satisfied,", said Sir Holm 'Findlay, . " !. ' -,-■''. !.■:■• '.'.'■ Witness agreed that'the discrepancies upon which he based his article wer6 that hi the Official Report ;the reference by Bowyer..to Reckitt's Blue did not appear,' and that Jamiespn'.s/supplementary report also was absent. .. ._..! /Sir John.Findlav: Did.you make 'in-.' quiry to' seo'. if ■ this :V;ero due .to .tho shorthand writer's error or to a, delibotr ate■.• sui)pi , e. c >sion by the Comriiission ?— -.'-The question of deliberate suppression by the Commission was not in my mind at all." -■ ■ ' ■ ■■"■■■■' ■■'"' ■■'■..■■'

Sir John Findlay: ""Then , I take' it that.you don't,suggest that the- Commissioners, have' been guilty of deliberate suppression?"—" Nor have I : even suggested, it."; :■-.: .. Are.you prepared to accept the statement that Bowjer'e ■■ eyidpuw; ~,b

honestly treated by Berry and by Wig Commission ?—"Yes;. absolutely." Are you prepared ■to accept the statelr.entthat the evidence signed by Jamioson was treated honestly by thei Commission"as his evidence?—" Yes."'

Then, do you admit that there is no charge against the honour or the integrity of tho Commission? —"No charge against their honour or integrity was ever intended." .: ' ' Do you think that such a charge would be t justified?—"No." •: . '"Faked Official Documents." ' •Sir John Tindlay: Now, I'm going to ask you whether.an editor ' who has made : the admissions you. have made is entitled to write and publish, this article; headed, \ "Faked Official Document's"? Asked to say if the item "fated" documents ; was not discreditable, witness said that it was if it was not reliable aud trustworthy. . ; "What did yon mean'by the word 'faked' in this connection?"---Tho article was a generalisation based upon specific statements contained in Godfrey's letter. , . . . "Do you believe that the Commission had faked any official record?" —"I believe it was mot .to bo relied on.". "Did you believe it had been faked by tho Commission?"—" Yes, I believe there was.-a■discrepancy." .. , "Did you-believe tliat the official document had been : faked by anybody?" —"It is .very difficult to answer .'yes'. or 'no' to that." ■ .. • Sir John tfindlay: You are .tho only one who can answer. " . "'

Witness: The object' of the article was to insist upon the importance of absolute, reliability' of all State documents.'/ _"■:' '. ' : , /. ,„, '

Sir John Findlay: I-know.' When you used these words did you-believo that : any official' document,, had been 'faked?—l cannot say-that I believed; an official document had .been faked. LeadingArticleDissected. Sir John Findlay went through the. leading article, sentenco by sentence'.' "Why did you uso the word 'tamper' instead of 'alter'?"—l cannot say. : "Did'you.'not,'suggest that it;did not siiitf Bowyer or one of the Commission to allow certain evidence to remain ?'' —The words are .open.to that construction.. ", ■... ..".. ' . '■.■;'•"■ ■ -.■*• '"■'■; "What do you'mean by 'simple plan of suprcssion';! who did the suppressing ?■'—l don't , know. ;; "And'-'What about this sentence:- ' "V. . and it must bri obvious that if any faking of evidence ten- ■.

dered to a Royal is

possible, the opport.umties v afforded ,-'■ :to a prejudiced Commission of mak- ' iligtho recorded evidence suit tho ' findings'.''it:dosirea to present-aro . limitless. ——" '.'...' : . ... '- ' , ,

:': "Iputit to'you that it is impossible for' aiiy reasonable man to read ■ that article dowii-to that point without coining to . the; inevitable conclusion that you; are charging the Commission, with beiiiß prejudiced, and with altering the evidence to suit/. its', prejudiced conclusions;— "I:doii't accept that conclusion at all." ' '

at a 11.",... .-;.:■■ ...r ~-., .-■ .- . ■ AVell, 1 what' do you; niean by using the words "faking," and, "It must ;be: obvious," and all tho rest? What was the' meaning -behind,theso;,words, if libt that P—','That is not: the meaning behind, the words.: 'If there, was this striking coincidence that Bowyer'sreferences. to Reckitt's blue, and: Jamieson's evidence also disappeared in- the official' rpebrd.';. ■;. v. There followed' a 'general; remark ;that. "If it is ' ppssiblo ..for, evi-' denco before a Royal Coniniission .to bo faked, then the opportunities of'making ;recorded, evidence suit the findings it presents 'are" , limitless.". . v>. :■■'., : '■ ; Sir ..John Findlay:' "That is precisely, the'answer I.want.", ■ '■:. . ~./ Commission Objected To. Albert. Arthur Howes, commercial traveller, .Dunedin, :/ ..representing ,B.v Hudson and-Go.j also gave evidence.:, -i. ■William R;"Gordon, of-Neill and Co.,'Dqnedin/: said' ■ that in 1912 he was chairman' of .the Dunedin Merchants , Association.:;, Ho had' sent; , a'marked copy of; the letter. Another, of. his 'had that "If themer- : chants were -called before: a proper tribunal ithey would give,'evidence.- .. .. Mr. M'Gregor.: .Was-there anj'thing hi .Fairbairn's' action at Dunedin to suggest that he was' attacking'his rivals?— ''Yes; I-have some things picked out" (witness:had-with:him'a copy of,the re-port-before, him';' sprinkled with mark- ;■;,'■>■,: ■■'■'■'■■: .-,:;-. .',.'.■ ■i/;',-- . Sir John Findlay:took exception, '.but witness'was allowed to'deal with what had taken'place at :Dunedin'before ho .(witness) had written his .letter.; 'Witt 'ness . referred-to a question-, in which, Fairbaini had asked what goods had to be; •purchased .from the Merchants'; Association. Some 'of.;these articles could bo purchased by Fairbairn, but Jstill he had that .list. put in, as' repre-. scntiiip;-. that those articles were controlled by the Merchants' Association. His object here : was to blacken the Morchaiits' Association.; Witness': gaye' spv■eral | ihstances, warranting,- he claini'e.d," the- same:, conclusion.;.. The - merchants, he said, would.never have,refused to give;evidonce,if a fair number pf commercial men were; on the 'Commission... They refused, only -because, v Eairbairn n'ad'-attacked them!' '. . ~': .'■■.'■■. ■

..Sir Job n Findlay: Is it 'the Merchants' Association or the "Ota'go Daily Times" which is really fighting this; case?— "Which" • case?' .

'Sir John Findlay: This case?—-"1 know nothing, further than that 1 was subpoenaed'. ; I know of no connection between .'the. two." ' 'i- V

.You. are not .chairman- now?—-"No; but I would know if anything was doing iu ; that way." ■■] '. "■ '■ . .•'• ■ . , Fairbairn was 'recalled' to bei'examined upon the statements made by; the previous witness.. He' said -that >. ho had nothing to do with the order of reference. . His questions were strictly re-le-vant to the issues.raised by the order of reference. ' ■'-.'■ , ..-. ■•'".' ' .'. ■

- Tlio hearing will be ( resumed to-mor ; row. •■' .: ; . ' : '■: •'.''';, ■ ■'' ■