SOME NOTED LIBEL CASES IN NEW ZEALAND
The official and unofficial records of the law in New Zealand contain an extraordinary variety of actions both for libel and for slander. A selection of them has been made to illustrate some of the grounds upon which cases have been decided in circumstances that establish the accepted law in different aspects of the subject.
Mr Justice Stephen
The Bryce-Rusden Case
One of the most celebrated libel cases in New Zealand was heard in London before Baron Huddleston in 1886. John Bryce, Minister of Native Affairs in the Hall, Whitaker, and Atkinson Ministries from 1879 to 1884, sued one, Rusden, for defamatory statements contained in his book, A History of New Zealand, which was published in 1883. Rusden in his history harked back to an incident in the Taranaki Maori Wars, alleging that in 1868 the plaintiff, then a lieutenant in command of the Kai Iwi Troopers, encountered Maori women and children outside a pa hunting pigs. Lieutenant Bryce and Sergeant Maxwell, said the historian, “dashed upon them and cut them down gleefully and with ease”. The occurrence took place at the investment of a stockade at Taurangaika, near Wanganui and, according to Rusden, earned for Bryce the name of Kohuru, which to the Maoris meant “the murderer”. Two passages in the book commented on the plaintiff's conduct in this engagement. The defendant admitted writing and publishing the passages, but denied having done so falsely or maliciously, and entered further pleas of justification and privilege. Rusden claimed to have written what he did on the authority of a note from Bishop Hadfield which was forwarded to him by the Governor, Sir Arthur Gordon, when he inquired about the authenticity of the story. He conceded that he had erred in not stating that Bryce and his sergeant were accompanied by troopers, but his counsel submitted that as an historian he was justified in what he had written, considering his authorities.
Baron Huddleston, in his summing up, said the main issue for the special jury was: Were the passages fair and bona fide comment on Bryce in his public capacity about a matter of public interest. Asked by a juryman whether Rusden's bona fide belief in the truth of what he had written could be taken into consideration when dealing with damages, the Judge, quoting Blackburn, J., said, “It may mitigate the amount of the damages, but cannot disentitle the plaintiff to damages”. The jury returned a verdict of £5,000 damages for Bryce, and His Honour refused an application for a stay of execution on the ground that the damages were excessive, because in his view the evidence suggested nothing of the sort. Bryce, however, accepted only £2531, which covered his expenses, for full payment would have ruined Rusden.
A Legal Anomaly
In Wellington in 1901 this question of an indictment for criminal libel came up for determination, and the complaint was quashed by the Chief Justice, Sir Robert Stout, not from any lack of virtue in the writ but because the charge was brought under the Criminal Code Act of 1893 which contained no provision for criminal libel. Thomas Henry Mabin had written a letter defaming an insurance agent, Osmond Russell Bendall, which the plaintiff alleged was calculated to “injure and vilify” him. There was no doubt about the character of the libel but as, at that time, defamatory libel was a common-law offence, and not a statutory offence, it was not a crime in New Zealand. In effect, Bendall's traducer went scot-free because of a legal anomaly. The Chief Justice reserved for the opinion of the Court of Appeal the question whether any person could be indicted for criminal libel in New Zealand and the Court (Sir Robert Stout, and Williams, Conolly, Edwards, and Cooper, JJ.) decided that the indictment did not disclose an offence that could be tried in New Zealand, notwithstanding the English statute, Lord Campbell's Libel Act 1843. The anomaly was vigorously deplored by all the members of the Court, and before the year was out the Criminal Code Amendment Act of 1901 was passed to rectify the matter.
An Offensive Cartoon
The stormy political scene of 1911–12 provided the background for a celebrated libel action in which W. F. Massey, the Leader of the Reform Opposition to Sir Joseph Ward's Liberal Government, proceeded against the New Zealand Times, Wellington. Massey claimed that a cartoon published by the newspaper was a personal libel on himself, implying that he was a liar and that he had been guilty of a mean and disreputable act. It all arose from a cartoon depicting a donkey, with the name “Ananias”, being hitched to a cart by a figure which all too obviously represented the familiar ample proportions of Massey. Across the seat of the figure's trousers was inscribed “Their idea of a politician”. The cart was labelled, “We are the party”, and its load consisted of bundles branded, “Defamation”, “Expense”, “Mud”, “Private Calumny”, and “Tammany”. Seated on top of the load was an old crone with the name of “Scandal-Mongerer”, and the caption to it all read: “Hitch Your Waggon to a Star … Emerson”. “Hitch Your Waggon to a Lie … Dr Findlay's version”. (Dr Findlay was the Attorney-General and in the Legislative Council had so parodied Emerson's tag.) The short and interesting point at issue in this case was whether an attack by cartoon in such circumstances was comment on the conduct of a political party or a personal attack on its leader. In the Supreme Court the jury found for the newspaper and said the cartoon was political purely and simply, and not libellous. Massey took his troubles to the Court of Appeal, the members of which were unable to agree. Two were for the appeal and two against. The Supreme Court judgment therefore stood. But Massey refused to be comforted and appeared before the Privy Council in London. Lord Atkinson, delivering the judgment of their Lordships, said that the cartoon was a bona fide comment, made without malice on a matter of public interest, and that on the evidence a jury of reasonable men could honestly regard it as such. The appeal was therefore dismissed.
The principle that “tale-bearers are as bad as talemakers” was established in 1926 by Mr Justice Herdman at Auckland when a Gallipoli veteran, one Fox, was awarded £1,000 damages against W. Goodfellow, chairman of the New Zealand Cooperative Dairy Co. Ltd. The two disputants fell foul of each other over Dairy Board and Dairy Co. policy, and Goodfellow was found to have circulated fictions about the plaintiff's war record, even going to the length of saying that Fox had been “reported twice as a spy”. This was a case in which the jury was asked to decide upon the question of malice. It returned a verdict of defamation with malice and, although the plaintiff had made no definite claim for special damage, he was awarded sums totalling £1,000 on three counts of malicious slander.
In 1931 Dr Richards, of Christchurch, found himself at issue with the Sun Newspapers Ltd. on the subject of a Court case. He had sued the Temperance and General Insurance Co. for £1,000 on account of references made by the insurance company's nurse to his treatment of a patient. In the course of the hearing the Judge ruled that there was qualified privilege and said: “It would be a monstrous thing if such a nurse, when she said the health of a patient was suffering through the neglect of a medical man, could not express her opinion without rendering herself liable for slander”. The case was not concluded when the paper went to press, but the Sun said the action had failed. On the strength of its heading “Slander Action Fails”, the newspaper was sued by Dr Richards. What had happened was that the Judge, while ruling that there was qualified privilege between the nurse and the doctor, later found that there was an element of malice, which destroyed the defence of privilege. Dr Richards was awarded a token verdict of £25 damages against the nurse and as a result had to succeed against the newspaper.
A Prospectus Challenged
When in 1932 a Wellington company promoter, H. N. Gooch, was engaged in the flotation of a new enterprise incorporated outside New Zealand, his prospectus attracted the attention of the fiery editor of the New Zealand Financial Times, Howard Elliott. The outcome was a libel claim against the paper by Gooch for £5,000. This was later reduced to £1,000 and the Court awarded the plaintiff 40 shillings. Here the defendant invoked the rolled plea – that is to say, he claimed that the offending words were true in substance and fact, and where they were expressions of opinion they were fair comment, published in good faith and without malice for the benefit of the public. Holding that there were minor errors of fact, the Chief Justice, Sir Michael Myers, gave judgment for the plaintiff for £2, but he said that, apart from those discrepancies, the article in question deserved not condemnation but commendation, because it had led to litigation that called attention to the fact that it was possible to issue in New Zealand a prospectus of a company incorporated elsewhere that did not afford the New Zealand public the protection they enjoyed in the case of New Zealand companies.
Newspapers and Defamation
A cabled news item issued by Reuters from Hong Kong in 1952 to the New Zealand Press Association, and published in New Zealand by 12 newspaper members of the Association, resulted in libel actions against a total of 13 defendants by James Moncrieff Hood, master mariner of Nelson, who claimed an aggregate of £10,750 for defamation. He was awarded £1,250 against the Press Association, and the 12 newspapers were ordered to pay him a total of £1,427 10s. The news item complained of implied that Captain Hood, master of the Panamanian freighter, Capella, trading in the Far East, was sympathetic to Communist China and was prepared to commit barratry by surrendering his ship to a mutinous crew regardless of his duty to his owners – in short, that he failed in his duty as master of the ship. The incident arose out of the interception of the Capella by a Nationalist Chinese warship. The defence pleaded publication in good faith and without malice and denied that the published matter had the several meanings attributed to it by the plaintiff. An apology had been published in every paper and a sum of £500 had been offered the plaintiff. Judgment was entered for the plaintiff. In his summing up the Chief Justice, Sir Humphrey O'Leary, emphasised that there was undoubted evidence that Captain Hood had suffered injury to character, credit, and reputation in his profession as a master mariner. He also upheld the principle of individual and separate liability of all defendants in respect of identical libels published in several places simultaneously.
A Notable Victory
The largest damages ever awarded in a New Zealand libel suit were secured by the Hon. P. N. Holloway, Minister of Industries and Commerce in the Labour Government of 1959. The defendant was New Zealand Truth Ltd., a national weekly newspaper which was found by the jury to have been guilty of imputing to the Minister a willingness to act dishonourably in the matter of the issue of import licences to named individuals. Their verdict was that defamation had been proved. The claim was for £15,000 and the jury awarded the Minister £11,000. The case went to the Court of Appeal and the Privy Council on the question of privilege, a point which the trial Judge, Mr Justice Hutchison, reserved for argument after the verdict. His ruling, that a newspaper cannot claim privilege if it publishes a defamatory statement of fact about an individual merely because the general topic developed in the article is a matter of public interest, was upheld on appeal in New Zealand, and then in London.
by Ronald Jones, Journalist and Script Writer, New Zealand Broadcasting Corporation, Wellington.