ALLEGED LIBEL.

King Country Chronicle, Volume VII, Issue 542, 15 February 1913, Page 5

ALLEGED LIBEL.

£5Ol DAMAGES CLAIMED

ENGINEER v. COUNCILLOR

A case of considerable interest in view of the frequency of differences between various local authorities and their engineers in the Waikato district was heard in the Hamilton Supreme Court on Thursday, before his Honour Mr Justica Cooper, when Leonard Grantley Paoli Spencer, of Te Kuiti, civil engineer, represented by Mr McVeagh, instructed by Mr Gillies, claimed from Alfred Julian--1 also of Te Kuiti, represented by Mr Reid, K.C., with Mr Northroft as junior counsel, the sum of £5Ol damages for libel. In his statement of claim the plaintiff said that by a document dated February 16th, 1911, made between . the plaintiff and the Mayor, council- * lors and burgesses of the Borough of Te Kuiti, it was agreed inter alia that the plaintiff would aid and advise the Te Kuiti Boroueh Council in obtaining tenders and supervising certain water works proposed tu be undertaken by the council, amongst which was the installation of a water supply, and would superintend. Before installation of the water supply was completed a controversy arose in the borough council as to whether or not the water pipes supplied by the company were s-.ch as ought to have been accepted, and about April or May, 1912, the borough council set up a committee to investigate and report on the matter. On or about May 27th 1912, the committee submitted its report, in the course of which it commented upon the appointment of M. H. Hamilton as foreman of works, imputed a breach of duty to plaintiff in failing to appoint a clerk of works to superintend the manufcaturi of the pipeß, and affirmed that some of the pipes were of a lower standard and of an- inferior quality to those which the council had a right to he supplied with. This report was received by the council at a meeting held on May 27tb, 1942, and. a general discussion followed, in the course of which the defendant said:—"l cannot find words strong enough to express myself on the matter. It seems to me deliberate, carefully and cunningly thought oik" The plaintiff claimed tha 1 ; in consequence he had suffered considerable loss and damage. In the statement of defence defendant denied having spoken or published the words alleged. He also denied tbat they were capable of any defamatory meaning. As a further defence he stated that if the words were spoken—which he denied—then they were spoken without mailce, and in the belief that they were true and under such circumstances as to make it a privileged occasion. He denied thac the plaintiff had suffered great loss or damage or any damage. James Steel, on the staff of the King Country Chronicle, published at Te Kuiti, stated that he was present at the meeting of the Te Kuiti Borough Council at which the pipe contract was considered. He remembered the placing of a report on the table and the subsequent discussion. Witness took a note of defendant's remarks in longhand and a report founded upon his notes appeared m the Chronicle The words attributed to defendant in that report—produced—were: "It semed to have been deliberate, carefully and cunningly thought out." The meaning witness placed on the words was that plaintiff, in defendant's opinion, had carefully and cunningly thought out something to the detriment of the council. The report was, however, voluminus and dealt with as many phases of the pipe question, that witness was not quite clear as to what the "something" was. Mr Gillies then read the newspaper report to the jury. The witness was queried as to the precise meaning conveyed to his mind by the use of the worl "cunningly." He replied that the meaning was doubtless in defendant's mind, but conveyed no special meaning to him— Witness Further pressed, he stated that the general impression k-ft upon his mind was that defendant meant by his words that the plaintiff had deliberately and cunningly thought out a plan whereby the council would be injured, and the plaintiff would gain. Cross-examined by Mr Reid, witness said that some of the councillors . adopted an indignant tone. He would "'Hit have been in a position to swear to the exact terms used by defend- | ant without reference to the newspaper. Though, however, bisrecol lection of the exact words might be somewhat dim, his recollection of the effect produced was much keener as a result of local discussions on the gubject. He did not remember what defendant said in reference to the original drawing up of the contract. Defendant was not a very clear speaker, but frequently spoke in a disconnected fashion. He could not remember the context to the words complanied of. George Darbyshire, at present residk in? at DargaviUe, deposed that he was K town clerk to the borough of Te Kuiti from Witness was present at the council meeting at which the pipe contract was considered, and remembered defendant getting up and saying:- 1 cannot find words strong ,enough to .express myself in the matter It sLms to me to have been deliberately, carefully and cunningly thought out." Witnessed produced the minute book of the council containing an amendment to a resolution moved by defendant • "That owing to the extraordinary "way in which Mr Spencer has conducted the whole of his work for the council he be called upon to resign bis position immediatly. ihe motion lapsed for want of a seconder, ATpKviouß meetings of the council i tness had heard defendant adversely r r nLse plaintiff's methods of carrying out various works. Before witnefß went to the counctl ma;jtiogl be fcad gathered from some of the conn-

cillors and from outside sources, thai the general impression of the mattei was that the engineer was endeavour ing by his action to save the cost of i clerk of works. Personal feeling was exhibited at every meeting of tht committee set up to deal with the matter of the pipes. Mr Eeid: Mr Julian is not a very clear speaker, is he? He becomes rather involved when speaking? Witness: Well, I don't know about that. He alw&ys managed to let the council know what he meant! Plaintiff was then placed in the box and said he was an associate of the Institute of Civil Engineers, and a member of the Institute of Municipal County Engineers of London. He had had experience in England, India and New Zealand, including experience in installing systems of water supply. In July, 1910, he was engaged by the Te Kuiti Borough Council and designed the borough for a system of water supply. His Honour remarked at this stage that to appoint the servant of the contractor the judge of material suppled by the contractor was a most improper practice. Mr McVeagh: I am instructed that such is the usual practice of local bodies throughout New Zealand. His Honour: Then the sooner it is stopped throughout New Zealand the better. Plaintiff proceeded to give evidence of a technical nature in regard to the guages of pipes. The life of a pipe depended almost entirely upon its coating. Extra thickness made a difference of only a month or two to the life of a pipe. Mr Reid raised the question as to whether this evidence regarding guage wa3 relevant. His Honour said the real issue was whether when the defendant the observations upon the report, which it was alleged he. had made, it was a case of qualified privilege. Towards the end of 1910 defendant came into witness' office and solicited the appointment of his son to the position of foreman of works/ Witness told defendant that he could not hold nut much hope. Ultimately defendant's son did not get the position. Witness also answered several questions put to him by the foreman of the jury. Witness, continuing, said the pipes specified were gauge 12. The difference between a 12 and 13 gauge was about l-80th of an inch, and a similar difference between 13 and 14. In the making of these pipes there was frequently a difference in thickness, and he had known pipes to be gauge 12 at one end and 13 at the other. The life of the pine, however, did not depend upon the thickness, but upon the coating. He had never, however, found a 14 gauge amongst the lot, as alleged. Had the whole of the pipes been of 14 gauge there would have been no loss in efficiency. It was not true, as stated in the report, that by the difference in gauge the council had lost £IOCO. His Honour said that when the defendant, in his observations upon the report, made the speech as alleged to him it was a qualified privilege. That qualified privilege could only be destroyed by evidence of express malice. That was the issue. Plaintiff said it was quite a usual custom to appoint persons in the employ of contracting companies to supervise the good 3, and better engineers than himself, on bigger works, did it. He made the appointment in absolute good faith. His Honour said he had never heard of such before, but if every engineer in New Zealand did it he would still say that it was entirely improper. Plaintiff recounted an incident in connection with the appointment of a supervisor of the borough, in which Julian had approached plaintiff, stating that, while he did not wish to take advantage of his position, he would like his son to get the position. Matthew Henry Hamilton, foreman for the Spiral Pipe Company, said that at various times he had been employed as clerk of works for different local bodies but he had never received a salary from any local budy. His appointment as supervisor of the pipes for the Te Kuiti Borough Council was made by Spencer, through the office of the company, who informed him that his certificate would be accepted. It was very seldom, if ever, that the steel from which the pipes were made was of an even thickness. The company thereby lost about twelve tons of steel a year. The actual gauge of the pipes mattered not one iota. The coverine was the chief factor in the life of a pipe. He was at present engaged on a £70,000 contract, in which the gauge was not even mentioned. The probability was that if rust got in the heavier pipe would go first. This concluded the case for plaintiff.

Mr Reid moved for a nonsuit, contending that the occasion upon which the alleged slander was uttered wa& a privileged one, while there was no evidence to go to the jury on actual malice. It appeared to him, he said, that the case was one of the moat trivial that had ever come before a court. It was a most monstrous thing, he said, that an employee ai th<* contractor should have been employed to judge of the quality and quantity of the material supplied. The comments by defendant were only fair and honest ones in the interests of the burgesses. It was no evidence of ! malice that on certain occasions defendant had criticised plaintiff in his official capacity. Mr McVeagh submitted that the case should go before the jury for two reasons. One was the very intemperate language which the defendant employed in speaking of plaintiff, by which he intended to impute to him something in the nature of a confederacy, and something more than a mere dereliction of duty. It must also be remembered that defendant moved an amendment that the services of plaintiff be dispensed with. This denoted an inflamed state of mind towards plaintiff. The second

reason was that thei;e was sufficient evidence of expxeo-Ha'ice to justify

the jury in assuming that the occasion was not used for the purpose for which the privilege was created.

i His Honour said there was no exi trinsic evidence of an inflamed state ! of mind, or of malice. He was very doutbful whether there was sufficient evidence to warrant the case going to the jury. i Mr Reid said there was another reason why a nonsuit should be declared. The words ;.in themselves were not defamatory per ee. Counsel dwelt upon the fact that not a single councillor who was present at the meeting had been called to say as to what impression they got from Julian's words. His Honour said there was some evidence to support portion of the innuendo, but not the whole of it. He would take the jury's opinion on the matter. Robert Montgomery Somerville, a member of the borough council, said he was not present on the night when the alleged libel was spoken, but he was at a previous meeting when a certain contract was discussed. Julian on that night complained that the engineer was unfairly treating his son. Cross-examined, witness admitted that Julian's complaint on this occasion was that there had been no allowance for the screening of metal under a contract held by his son. James Boddie gave evidence concerning the original contract between the borough and Cr Julian's son. The specification which had been signed bad been lost tor a considerable time Orly a short time ago the docu ment had been discovered in witness' house, it having been inadvertently wrapped up together with another paper. At this stage the ca3e for the plain tiff was closed. Mr Reid intimated that he would call nu evidence for the defence, and counsel addressed the court. His Honour reviewed the evidence at length, and instructed the jury to return a finding on point as to whether or not the defendant was guilty of malice. His own opinion was that the evidence on that point was slender. According to the reply of the jury to that question he would decide if any further questions should be considered. After a retirement of about four hours the jury returned a reply in the affirmative. His Honour said the finding practically amounted to a verdict for the plaintiff. He then submitted to the jury questions as to the interpretation of the words used, and what damages should be awarded. After a further retirement the jury assessed the damages at a farthing.