CHANGE OF VENUE.

Dominion, Volume 7, Issue 2216, 31 July 1914, Page 8

CHANGE OF VENUE.

"TIMES" V. "DOMINION." '•x fU y tfl ? r Pkf?e of the libel action, Now Zeakiicl iimes" Company v. the Wellington Publishing Company Cnropnetors of The ffl m the Court of Appeal yesterday, when the defendant company appealed against i'Vrfqr l^- 11100 ' 11 ! 01 Justice tinn .f +I? u ) Banting the application of the plaintiff company tor a change of venue. The Bench was occupied by Mr Justice Denniston, Mr. ' Justice Awards Mr. Justice Cooper, ' and Mr. Justice Stringer. Mr. M. Myers, with Mr, T. C. A ™■°P«. appeared for the appellants' . while Sir John Findlay, K.C., with Mr! • , Hoggard, appeared for. the -respondents. The claim in the action was' for £3000 damages for. an alleged libel in connect tiou with an article which appeared in Ihb .Dominion of December 11 last, and already there had been two trials, resulting m each case in the jury being unable to agree upon a verdict. Thesecond trial was held on March 25 last • and when the l'ury was discharged, an order was made; (on the application of tile plaintiff s counsel) for a fresh trial at tho, then sitting of the Court on a date; to. be-fixed by the Registrar., No application was made to set the case down for hearing, but in June the plain. . tiff company applied for a change of venue to Auckland, Christchurch, oi Duncdin, on, the ground tlial' a fair trial could not be had in Wellington, in© application was heard by His Hon-' our the Chief Justice on Tuesday of „ st week - In ,givmg his judgment, His Honour remarked that ; the ■ circurn- V stances under which the application was . made were: "(L) The feeling engender- , ea. 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 ' the third trial. As the case has to go to another trial, it would not be proper ' tor the Court to make any further comments. I order a change of venue to ' Auckland, costs £2 2s. to be costs in the case. If both parties agree 'to choose any other place, that place can. be chosen." From .this decision the defendant company appealed, on;th8 : ground that it was erroneous in law. , " ~ Myers, in his opening remarks to the Court yesterday, stated'that there were numbers of cases where applications for change of venue had been made to the -Supreme Court in New Zealand, but the question had never been oousidored by tile Court of Appeal, except incidentally in one/case. ' Counsel then outluied the ca6e by reference to the affidavits and indicated the . course of proceedings at' the two trials. - Plaintiffs: had. not followed up .the order, obtained on March 25. for a fresh trial and had evert allowed the May sittings of the Court- to, go by without' applying to havo t'he case set down. They actuary'waited until June, and then apP' led ™r a change of venue. He point- ■ ed out that tlie course; taken in connectioiv Tvith this application differed Irom course taken in any other action to bo found in the New Zealand ' Law Reports. In.every other case, the application had . been supported by affidavits from responsible 'citizens, who espressed the opinion that a fair trial could not be had at the place named and who gave the grounds for those opinions. In tins ease, the onlv affiby a so ' lioitor Dalziell), who was chairman" m fir 'i! ,°f Plaintiff company. ' m most ea/es filing; W an opifc lo<:!s ions, and he. had given no grounds for ' ' those opinions. He.;could ,'not be re- v garded as an independent witness and ' counsel submitted that his affidavit could not; be regarded as evidence at ' nil. It was true that two trials had ' been held m Wellington; but nothing' ' be: presumed'.from that except ' ■fcnat the case Was one in which. any 12; men might disagree. Rule 249," under ' which the application was made was very different from the English rule. In England there was no. local venue, but in New Zealand there was and change of venue was not a matter of • discretion. i • i Mr. Justice Cooper: Why notP Mr. Myers said it first of all had to •' be proved that a fair trial was not to I bj had.- 1 • Mr. Justice Edwards asked'whether' an action had been tried 'sis . times ! would'riot that show that something Ivas i wrong ?' ,' • ... Mr. -Myers that/ it; /'might - show, that the- question at issue was onb of; such; doubt that it was difficult to ■ rjot twelve men to p<*fee upon it.; , Mr. Justice Cooler: 2 Would it not > show that public opinion was so divided ' " that neither sido could got,a verdict?. ■Mr. Myers: I submit. not, Your Honour.. ' In the_ course of'further discussion, Mr. Justice Cooper said he would have that, public opinion was '■ very largely influenced by the papers. ■ _ Mr. JTustice Denniston expressed s similar view.. '• Mr.'Myors suggested that if that'were'' 1 really the ca«o_ plaintiffs could bar a brought some evidence on the! question ' Mr. Justice Cooper; Do you say tliat;in your opinion, the leading articles in {The Dominion have no effect on public • opinion? -. ' Mr. Myers said he had not said so, ' but where it was a question of an'at- i tack upon an individual, the public were not influenced If it were so, then no action for libel should be tried in/the place where the libel was printed. ' His present point, however, was that change ; of venue was not a mere matter of dis-' ■' cretion, and in this connection he went on to refer to Rule 258 and to compare the New Zealand rules with those of England. The rules gave the defendant a prima facie right to have the'' case tried at the place named Tn 'the ■ writ. '■"■■■ ■ ; Mr. Justice Denniston:, Until it is' > changed. Mr. Myers : V'T meant' that, Your' Honour, but I go further and say 'an' absolute right unless the case is made to come within Rule 249." Counsel • went on to say that before that could 1 be dorta it had to bn made to- appear' on evidence that a fair trial was not \ to be had at tho place named. _ After some discussion on juries «rid' jurors, Mr. • Justice Coojjereaid: "I sup- • pose your first point is that there is no discretionary powei; for tho Judge to change the venue and th«*. it must be determined pjirely on fact?"- ■ Mr. , Myers: Yes. Mr. Justice Cooper: 'AnH if the Judge> . in tlio Court below,has n discretionary power, ho ha 6 exercised it wrongly? ' Mr. Myers: Yes. Mr. Justice. Stringer: Yon sny tho Judge must be satisfied on fact and if lie has givon a decision it can lie appealed against on that account? - Mr. Myers intimated that that was his contention. He continued his com-, parison of the rules with the English rules, find then proceeded. to refer to pome English criminal cases, remarking ithat they were in point from the fact that there was a local venue for criminal cases in England, but not for civil cases. He also cited several New Zealand decisions, including somo bv, ; the Chief Justice, which were (counsel argued)' in direct conflict with the de- ' cision in the present case. In conclusion he submitted that, it had not been shown that a fair triir could, not be ' held in Wellington, that the matter was a correct one for appeal, that tSe" order for change of venue should not linvS been made, and should not be allowed, ; to stand ._ Mr. H.islop- also addressed the Court in support of. the appeal.' He concluded' a.t'5.15 p.m., when the ; Court ; a'diburiied" .until 10.S0 a si., to-day. . t . . ;