CHANGE OF VENUE

Dominion, Volume 7, Issue 2208, 22 July 1914, Page 5

CHANGE OF VENUE

— »- "TIMES" V. "DOMINION" LIBEL " . ACTION CASE REMOVED TO DUNEDIN CHIEF JUSTICE'S REASONS , < A summons for change of venue in tho libel aotiou, "New Zealand Times" Company v. the Wellington Publishing Company (proprietors of The Dominion), was heard iu the Supreme Court in Chambers yesterday, before His Honour the: Chief Justice (Sir Ilobort Stout). The claim in the action was for £3000 damages for an alleged libel in connection with an article which appeared in The Dominion of December It last, and already there had beon two trials, re-, suiting in each case in tho jury being unable to agree upon a verdict. Sir John findlay, K.C., with Mr. P. B. Cooke, appeared for tho "New Zealand Times" Company,- while Mr. M. Myers, with Mr. T. C. A. Hislop, appeared for the Wellington Publishing Company. Affidavits In.Support. In support of the summons, an ,affi. davit had been filed by Frederick George Dalzieli, solicitor, acting for tho plaintiff company. After referring to the two trials held respectively at Wellington on March 7, 1914, and March '25, 1914, before juries of twelve, in each of which the juries had disagreed, Mr. Dalzieli stated that there were only two morning daily papers in Wellington, the "New Zealand Times'' and The Dominion. The latter was the recognised organ of the political party at present in power, and tho former the recognised organ of the _ party in opposition. The affidavit continued that for some time a keen feeling, of rivalry existed, and still existed in Wellington between tho plaintiff and defendant, 1 each company using- its columns to influence its readers in their political views. At sundry times The Dominion had in strong terms denounced the New Zealand Federation of Labour, and represented that its' methods were ruinous, anarchical, and a menace to the community, and had in its denunciation associated the name of the "New Zealand Times" as the ally and supporter of ,the organisation. Tho articles in The Dominion had been of a nature to strongly prejudice the readers,of the paper against the "New Zealand Times." As the result of articles appearing jn both papers upon the recent strike, much bitter political feeling had been - aroused in and near Wellington, and a bitter local controversy had existed in Wellington since the strike, and still existed. Both 1 nowspapers had a large circulation in Wellington,' and, as part of this controversy, a large majority of the jury panel, from which the jury for tho retrial would be drawn, were already influenced into taking one side-or the other , on' the view's expressed' by tho "New Zealand Times" and The Dominion on the-question of. the strike. As such views'formed part of the "'subject matter in the; alleged libel in the prosent action, a fair trial could not bo obtained in Wellington. Moreover, the action had been: twice tried hcie, and tho wholo mattor reported in.the greatest detail; and fort-hat reason Mr. Dalziel was of the opinion that tlio jury had already preconceived opinions and prejudices on the subjcct matter of the action. Defendant's Reply. . ■ An affidavit in reply was'filed 'by Charles AVestwood Earie, managing director. -qf the' Wellington Publishing Company, and editor or The Dominion, who said lie belioved; that Mr. Dalzieit was chairman of directors of tho "New Zealand Times'! Company. The affidavit of Mr.:Ea'rle went on'to say that iii his opinion the statements and expressions of opinion in tho affidavit of Mr. Dalzieli tfiat'tho articles it The Dominion had been of supli a nature as to prejudice the minds of its', readers against the "New Zealand Times" were unfounded. The aim of The Dominion was to place facts and comments before its readers,'and to leave its readers to form their own judgment on these facts and comments; The other statements in the affidavit of Frederick George Dalzieli (if truo). were just as applicable to the other principal, cities of the Dominion, if not more so. In Auckland _ there were two daily papers, one of which (the "New Zealand Herald") supported tho Government, and the other (the evening paper) .supported the Opposition. In Christchurch:' there were live daily papers, of which two (the "Press" and the "Evening-News") supported the Government, and two (the "Lyttelton Times" and the "Star") supported-tho Opposition, while tlie fifth (the "Sun") professed to be independent of party. In each' of these cities, but specially in Christchurch and. Auckland, precisely the same kind of controversy had been carried on in relation to the Federation of Labour, the strike, and the actions of political leaders- and their parties in connection therewith', or. in relation thereto; as were assumed by-Miv Dalzieli to 'have been .carried on in Wellington. The state of political feeling in Christchurch could bo gauged from a leading article appearing in the "Sun" of Juno 6. and entitled "Mr. Massey's Meeting .and Its Moral." It ivas common knowledge that Socialists and the Federation of Labour controlled tho opinions of a larger number of people in Christchurch proportionately' to population than in any other of the large centres of population in the-Dominion. Mr. Earle's affidavit concluded: "In the course of my business it is my duty to read newspapers published in all parts of tho Dominion, and I am ablo to say that tho political feeling in the other large cities and towns of the Dominion is quite as intense as the feeling in Wellington, if not more so. I do hot think that there is any reason or foundation for the statement that a fair trial of this action cannot'be had in Wellington. I have been, informed, and verily believe, that the number of names on the. common jury list at present in force in tlie City of Wellington is 4761. I was present in Court on March 25 last when the jury Was discharged after the second trial of this action, .and, on such discharge, Sir John Findlay, K.C., on behalf of the plaintiff, applied to His Honour the Chief Justice, who presided at the trial, to .order a fresh trial at the then sitting of the Court,- the date to bo fixed by the Registrar, and an. order was made accordingly." I Another Affidavit. To tho above, the plaintiff's solicitor, in a further affidavit,' replied that a perusal of The Dominion articles would show that the aim of -that paper was not, as alleged, to placo facts and comments before its readers and leave them to form their own opinions of these facts, but its aim was allegedly to prejudice and inllame tho minds of its readers against tho "New ■ Zealand Times" by representing that it (the "New Zealand Times") was the ally and advocate of the Federation. It would be incorrect to say that the same that had been said about Wellington Would apply to other principal cities of the Dominion, since in 110 other cities had tbero beeii the same conditions between the two newspapers. In the other three cities tho daily papers had friendly working arrangements. In Wellington there was no working arrangement between tlie "N6w Zealand Times" and Tub Dominion, but, on the contrary, there was great bitterness _ introduced into the business competition of the papers. In any of the other cities, the jury. would be drawn from those n'ho rora not readsrs of eifcliff tlio. ''fteir.

Zealand Times" or The Dominion, .Mr. Dalziell denied that it was common knowledge that the Socialists and tlio Federation of Labour control opinions ? larger proportion of people in Ohristchurch, Tho Federation had its headquarter* in Wellington/' wlioro its journal, tlie "Maoriland Worker," was published, and it was alleged that hero the control and influence of tho Federation uimu popular opinion was larger and greater than in any other of the cities. Argument of Counsel. .. John Findlay, in opening, said that tho summons was for change of venue in the action, which had already been tried in tho City of Wellington. ■IJiere had been two trials, the first before iVJIr. Justi'o'ei lioslding and a common jury of twelve, and tlie second oeloro His Honoui; tho Chief Justico and a jury of twelve. Sir John Findlay J j.! lot ho c °uld.stato tho grounds of the application better than by reading from the affidavit of Mr. Dalzieli. ii. j! nse ' lcll proceeded to read from the three affidavits quoted above. . Continuing,,- Sir John Findlay said that tho order for change of venue was made under liule 269. Tho first strong ground for tho application was that i ii 1 already been the two trials, ana there could be no doubt that everything that could bo. presented had been presented. Tliero could bo no question then of any now case to be made out. iNo verdict had been obtained at tho other trials, and ho was prepared to express the opinion that a final verdict ii- 110V6r obtained at a trial in Wellington. Referring to Mr. Earle's amdayit as to the state of feeling in Uiristchurch, Sir John said that, in t.ie event of a change of venue being granted, he did not ask for a trial m Christchurch. But he was perfectly satisfied that anyone who _ knew . Dunedin ' juries would admit that they were as fair as could he obtained anywhere; The parties could be certain to got a fair and impartial trial from a Dunedin jury, or— if they wanted.it—from an Auckland jury. He .pointed; out that in some cases similar applications had been granted and others refused.. In tlie oaso of Stagpooto v: i'irani, heard before Mr. Justice Cooper and Mr. Justice Chapman, change of venue had i 6/tt grafted from Palmerston. North to \V ellirigton, on account of Their Hououra being of opinion that there existed in Palmerston North a local atmosphero highly charged with excitement, which would make it impossible for a jury to bring a fair and' impartial mind to bear upon the' issue. Counsel went on to say that it seemed to him hopeless to contend that tlwro was no local "atmosphere of. the ki.id in Wellington. .To anyone. who had read the two newspapers for some time past, it must be obvious that an amount of local atmosphere had been created which would go very far to provent the jury from bringing an unbiased mind to bear upon the issue either for ,or against the "New Zealand Times." In the other centres the conditions were not the same, and there had not been any fight between the companies at all. In Christchurch, which had been specially ■ referred to j the papers had a working arrangement in regard to rates, and there was. not tho same amount of recrimination and bitterness which existed here. It was greatly to be deplored, but the fact .remained _ that, on account of the wide circulation of these papers, ■ and their influonco on tho minds of the people, it would bo impossible to get a jury into the box not materially, though unconsciously, influenced against one cr other of the litigants. There were no witnesses in the case, so tliero would be no extra expense attaching to a change of venue. .It would bo.evon possible for local counsel to.be engaged. : Mr. Myers in Reply. Mr. Myers submitted that the application had been mado on tho • flimsiest material. , V; The Chief Justice: . Tlie strongest ground is that two juries have disagreed. Mr. Myers said lie was going to suggest that that was .'the only ground, and if that were sufficient it might reasonably bo suggested that in every case, civil or criminal, Avlicre two. juries disagreed an order should be made for. change of ven'ue. Counsel contended that by tho application a reflection had. been cast upon tho 4700 people on t'Jio jury list ill the City.. Then, again, a special jury had never been applied for. His. Honour pointed out that the Court .would havo no power to grant such an application. Mr. Myers replied that it could have been arranged by consent. If His Honour thought a change necessary, ho (Mr. Myers) contended that an order should 1 not be granted without first allowing an opportunity for the case to be heard before a special jury. .In- regard to the allegations of feeling in tho City, counsel asked what affidavits were befcro the Court, in reference to - this? His Honour camo on the Bench without knowledge of tho state of feeling-in,tho City. • v His Honour: Except what camo before mo at the trial. . Mr. Myers contended that Mr. Dalziell's expression of opinion on the question was of no value in this case. In other cases it was usual for the applicant to come before the Court with a number ■ of affidavits from • responsible citizens, giving reasons why a fair trial could not be obtained. The absence of such affidavits, in the case before. the Court, suggested that they were not to be got, that responsible people in the City were not of opinion tliat a fair trial oould not bo had. Why should the Court be asked to pass a reflection upon the jury or to assume that they or any section of them'liad been dishonest? The Chief Justice: They-may not bo dishonest. They may be unconsciously biased. Mr. Myers said that could not be'in a case of this kind.. His Honour remarked that it was possible for persons to have a strong political feeling and be influenced unconsciously. Any religious or'political feeling might influence a man • unconsciously. -Mr. Myers denied that there could b?, any question of political feeling. Plaintiff's statement of claim mado'a definite allegation and it was for the jury to say if that could' be proved from the papers which had been put in. Deferring to the fact that change of venue had been ordered in the case of Stagpoole v. Pirani, counsel pointed out that the venue in the first place had been Palmerston North —a small place -compared to Wellington; then Their Honours had been influenced by tho fact that tho affidavits," in reference to the application for change of venue, had' been published •: in one of tho local papers,, as had a letter commenting on them. He contended that thp ease now before .the Court was very similar to the . ca6© of Gibbs and Graham in which His Honour (at Nelson) had refused a change of venue. In that application a stronger case bad bee limado, out in support, aiid if there was no reason for the change, it was submitted tliero was none in the present instance. The only thing to be noted was that hero there had been two trials and in Gibbs and Graham only one. Tlie mero fact that .there had been a disagreement might show nothing more than that there had been two honest opinions. Counsel also referred to the case of Miekle v. t'lie "New Zealand Times,'' in which the application for change of venue had been refused, and,to an English case. In the present case he ventured to say that very few people in tho city cared two straws what tho "New Zealand Times" thought of Tire Dominion, or what Tire Dominion thought of the "Now Zealand Times," and what possible ground could tliero be for a change of venue? How could His Honour say that a fair trial was not to ho liatl on the material before tho Court —tlie suggestions and opinion a of a person specially interested, land who had 110 .qualifications to ea-^

press tho opinions he chose to express to the Court? Finally counsel contended that the case was boyoud the juris- ■ diction of His Honour. Tho plaintiffs had obtained an order for tho new trial and that order could not bo varied. They had allowed tho sittings at which the- trial should havo been "held to go' past and had then come along and askod for a change Of venue. His Honour: You are both in the' 6amo boat. Each, bad a chanco ,to set • it down and neither did so. Mr. Myors .said his clients had assumed tho other side would bring it on. It was immaterial to his clients whether the case was brought on or not. Sir John Findlay, in reply, declared that Mr. Myers was unable to cito any tase where the Court had'refused to order a change of venuo after.there had been two trials; •An application of this kind was 110 reflection on the jury. Thero was ho suggestion of "dishonesty, but of unconscious bias. Application Cranted. His Honour reserved his decision until ~ P-ro., when ho granted tho application tor change of venue. In the course of nis judgment he said: , "At the close of the second trial, I, in pursuance of Section 153, discharged the jury, and by Section 154, on the application ;of ; the plaintiff, I ordered another trial at a future sitting. Nei,lef, P af ty. set the case down tor.trial at the next sittings. Application is now made by the plaintiff for a change of venue. _ Tho defendant company objects to the jurisdiction of the Court to change the venue, because the order was mado for the third trial on discharge of the jury. Tho Court d.d rot then consider the question of venue.. J. ho law is t-hat the action is tried at the j placo mentioned in the writ of summons, ! and in tho absence of any order to the contrary tho trial must .take place there. I know -of no authority or rc-a- i son that can prevent a Court changing a venue at any time. The words of this rule are plain. They are: .'The Court may at.any time order the action to be tried at other place-.' There is no validity in such objection. What this Court has to consider is: Can the action be fairly tried in Wellington? Hie Court has in many actions ordered a change of venue. In Holmes r. Furness, His Honour Mr. Justice Richmond ordered a change of venue because of the evidence that political feeling, ran high in Blenheim, and the.action dealt with politics. In the Exhibition Crmnaiiy v. Purser, the Court of Appeal, ordered a change of veuuo because a jury had found a verdict against ■ thb weight of evidence, • and the defendant was tho mayor of the town -where the trial had taken place.; In Stagpoolo v. Pirani tho trial of the action . was removed—because of the alleged political bias—by Their Honours Mr. Justice Cooper and Mr. Justice Chapman. I refused the change or venue in Gibbs. v. Graham after the jury had disagreed, though there wero allegations of political feeling being present in the country: (1) Because the feeling had arisen at an election, and the trial .would not' take place until twelve months ■ after the date of the general olection, at which it was eaid'the political" feeling - had -been present; (2) hecause the general- kind of the political feeling referred.to, was as likely 'to be present in any other place fixed for trial. This application is made under very different circumstances: . (1) The feeling engendered by' the two rival newspapers continues; .(2) there have been disagreements on two trials; (3) it, has already been heard by the two Judges resident in this district, and I think it is better that another Judge should preside at tho third trial. As the case has to go to another trial, it .would not bo proper for the Court to make any further comments. I crder a change of venuo to Auckland, ;costs £2 2sl to be costs in the case." ■>. Notice of Appeal. Mr. Myers remarked - that if there was to be a chango of venue, his friend had said Dunedin, and ho (Mr. Myers) had agreed.' The question was whether a change- to- some other place in the Provincial District should not lie made. His Honour considered tho same objection would hold. Sir Jolin Findlay said he was quite agreeable ,to Duneain, and His Honour mado a- note in tho judgment to the effect that any-other placo might be" chosen on agreement between the parties. Mr. Myers asked, in view of the very important question involved, tliat the. trial should not be held until the Court of App,eal had an. opportunity of dealing with that question. Sir John Findlay objected to any stay of proceedings. His Honour: This case can be heard at these sittings of the Court of Appeal. ... Mr. Myers was proceeding to make some further remark, when His Honour said: "I object entirely to this .continual putting off tilings. In England the case could have been tried long ag<j." ' • Mr. Myers:. The application could have been made long ago, Your Honour. His' Honour: That's not my fault. Mr. Myers: Well, it's certainly not ours, your Honour. This application was not made until, some montns after the trial. • ' Sir John Findlay interjected that his friend would 'have to share the blame. They had been meeting each other's convenience. x . Mr. Myers: You've met. mine since Saturday last. His Honour said ho had been prepared to hear the summons long ago. ' Mr. Myers repeated that his side was not to blame for any delay. His Honour said that it was desirable to have t?be appeal heard at once. If-they put it off they would havo the action being heai;d at election time, and it would Tio very inconvenient to have a trial of the kind heard at an election time. Witli tho kind of feeling that was going on it would bo most improper. ' Mr. Myors: We're not to blame for, that.. His Honour: Well, you. should bring it oil. • He added t'hat he would get' the Judges of the Court of Appeal to agree that the case need not be printed. :• Mr. Myers said he would give notice of appeal forthwith' and ho had -no doubt the printing could be completed in time. , Sir John Findlay rpse to state that, on authority, there' was no right to any stay of proceedings. He was prepared to cite cases in point. His Honour statd t'hat lie could not decide that. Mr. Myers had a right to go to tho Court of Appeal. -But he (His Honour) would not stay it. Sir John Findlay : I understand your Honour does not order a stay now. - His Honour: Tliat is so.