An Important Decision.

In last month's issue we gave a brief outline of Mr Justice Williams's judgment in the libel case Peterson v. the Tuapeka Times, delivered on the 24th June. We now quote the judgment in full. His Honor said:

The published matter undoubtedly reflects on the character of the plaintiff, and is therefore libellous, unless the defendants succeed in establishing a justification. Now, the defendants have not pleaded that the imputations contained in this paragraph are a question of truth or otherwise. What the defendants pleaded is this—that there was a meeting of plaintiff's creditors, at which the plaintiff made certain statements, and the publication complained of is nothing more than a fair comment upon such statement; that the defence involves a question of law as well as of fact, involves the question as to whether the occasion of the publication is what is called a privileged one. As to the first question, whether the statements made upon oath by the plaintiff before the Official Assignee were made on a privileged occasion, it seems to me that I would be going altogether too far to say that the publication of everything that takes place at a meeting of creditors stands on the same footing as the publication of proceedings in a Court of Justice. We know perfectly well that at such meetings creditors very often lose their tempers, and use language which is perhaps altogether uncalled for. I am not going to decide, and I do not think it is necessary for the purpose of this case to decide, that a meeting of creditors stands on the same footing as the proceedings in a Court of Justice. What, however, is commented upon here is not what took place generally at the meeting of creditors, but certain statements which were made upon oath before the Assignee at such a meeting. It now seems to me that the examination of a bankrupt before the Official Assignee is in effect a judicial enquiry. If we turn to the Act we find that by §31 the Official Assignee is an officer of the Court. By §37, sub-section 5, it is his duty to summon and preside at a meeting of creditors. By §30 it is the duty of the Assignee to make a report to the Courts as to the conduct of the bankrupt. By §63 the Assignee may call a meeting of creditors; and by §64 it is the duty of the bankrupt to attend such meeting, and submit to an examination. This examination may be upon oath. If the bankrupt does not answer the questions he is guilty of contempt of Court, and, of course, as the examination is upon oath, if he gives untrue answers, he is liable to be indicted for perjury. The §99 of the Act gives the Assignee a further power to summon and examine the bankrupt upon oath; and by §160, if the bankrupt refuses to be sworn, or will not answer, the Court may commit the bankrupt to prison. By §151 we find that the Court, when the bankrupt applies for his discharge, has to examine the Assignee as to the bankrupt's conduct, and the state of his affairs; and by §157 the Court may act upon the representations of the Assignee, and refuse or suspend an order of discharge. Clearly, therefore, the Assignee is an officer of the Court, and is conducting this examination as a part of the machinery of the Court, and for the information of the Court. That seems to constitute the examination a judicial proceeding. It is quite true that the Assignee may have the right of preventing the public from being present at the examination. The creditors, however, certainly have a right to be present, and that being so, in that case it falls exactly within the observation of Baron Channel, in the case Reytes v. Leader, which has been already cited, that supposing the proceedings are of a judicial character, if the Judge leaves his Court open to the parties interested, that is enough to give protection to a report of what occurs. I hold that the publication of the examination on oath of bankrupts before the Official Assignee stands on the same footing with respect to publication as the examination of witnesses in an ordinary Court of Justice. If that is so, it follows that a fair comment on the evidence so adduced is protected in the same way as the evidence would be protected in the present case. The bankruptcy, I understand, is still pending before the District Court, and it might well be if the comment had been made, not upon the evidence of the bankrupt himself, but on the evidence of other witnesses, hostile to the bankrupt, that, as the proceedings were pending, such comment would not be privileged; and as the proceedings were sub judice, it would be best for the newspaper to wait until there was an end of the case. I don't say that the comments are simple; it is simply comments on the statements of the bankrupt himself, that the rule necessarily implies, but provided that the comments in themselves are nothing more than a reasonable person might justly make. Now, in the present case, I feel satisfied that the comments which have been made do not come within this rule. If one read the evidence which the bankrupt admittedly gave, the conclusion which a rational person would come to from the statements of the bankrupt would be that the conduct of the bankrupt had not been what it ought to be. Nor does the article complained of really say any more than that. I do not think it does. What it says practically is this, « the bankrupt, out of his own month, has shown he has not acted honestly, » and it seems to me that that is a very fair and reasonable thing, under the circumstances, to have said. It is objected that there are two statements in the comment which are not justified by the statement which the bankrupt made. One is a statement about his having sold cows at under value, and the other is about his exchange of horses with his brother-in-law. These are, however, really minor details, and it seems to be quite fair to say that being minor details as they are, they really are within the principle of fair comment, although they may somewhat go beyond the statement of the bankrupt himself. Fair comment is defined by Justice Stephen as follows:—« A fair comment is a comment which is either true, or which, if false, expresses the real opinion of the author. As to the existence of the matter of fact or otherwise, such an opinion has to be formed with a reasonable degree of care, and on reasonable grounds. » Well, the whole of the rest of the statement of the bankrupt seems to be « that he has not been acting as he ought to have done. » If a man makes such an admission as the sale of four cows for £7, surely it is not an unfair inference, looking at the whole of his statement, that there was a sale for under value; and the same remark applies to the exchange of horses. On the whole, therefore, I am of opinion it was quite open to defendants to have commented on the statement of plaintiff, and there is no evidence to show that the comment was other than fair and honest.