1938-12-20 — Page 10

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COURTS

BRAYFIELD LIBEL CASE ENDED

(Continued From Pake 1)

F

Beginning his legal arguments was cast, by posting his name as on privilege, in the absence of the a defaulter. jury, Mr. Potter said his submis The sion would be that the alleged libel was published on a privileged occasion and that there was no evidence of malice.

SO

3ay

the "Jury returned their verdict: "We find that the money was not owing. We award damages of one cent. Hongkong currency.".

Indirect motive which afforded the malice in this case was that the Stewards not only in- Mr. Potter then said: "I ask for tended to affix this libel on Mr.judgment with costs." Brayfield by posting him but they intended also to force him out of

His Lordship: "I formally enter the Club if he did not pay-re- Judgment, an u result of my find- gardless of whether he owed the ings in law. for defendant with money or not. Mr. Pearce had costs." said that so far.as he knew, plain- U was acting honestly in dis- puting the claim..

To the jury His Lordship re- marked:

concludes your "That difficult labours, which were

There was in the Stewards' ac-lightened at the end in a way you tion. Counsel submitted, sufficient hardly expected, no more than I.” evidence of a gross, unreasoning prejudice for the jury to say that, they had abused a privileged occa- slon

"It is difficult." Mr. Potter con" tinued, "to see how it can be ar gued that the occasion was not privileged. but I will even Бо

far 03

to that apart from Article 79 altogether. the Club is entitled to tate action against a member whose account has not been paid. According to Article 83, any ques- dien as to the interpretation of the foregoing articles of the Associa- tion has to be referred to the Stewards, whose decision shall be Further on quoted from another final. As they had agreed that Steward (later revealed by Mr. this case fell within Article 79, the Potter to be Sir Vandeleur Gray- matter must end there."

burn) "I see no reason why the With due respect. Mr: Potter sub-charge should not be paid and less mitted, it was not for the Court reason for Mr. Brayfield to worry us in this stupid manner. If he to say whether their decision was right or wrong, but even assuming that it was a matter for the Court, the action of the Stewards wES privileged because Article 79 of the Association laid "down" that any member whose account had not been paid at the end of the month, after due notice, shall be posted In the Clubhouse as a defaulter and shall ipso facto, cease to be dence of expressed malice to ga

a member "If, as the expiration of one week, the account still remain- ed unpaid. unless the Stewards say fit to order otherwise.

It had been suggested, went on Counsel, that Article 79 did not apply to this case because the ac- count was disputed.

There was nothing, he submitted,

in the Article to induce one to take such a view, and the only question was whether the account had been paid or not.. Continuing, Counsel

submitted.

that the account was unpaid, but why it was unpaid did not alter in the slightest degree the con. struction of Article 79, the whole object of which was that members might be posted.

Mr. Potter went on to submit that even assuming that Article 79

does not pay, he should be turned out of the Club."

Mr. Potter, replying, said that this new question of improper motive on the part of the Stewards was never put to Mr. Pearce. He resented the suggestion.

His Lordship: I hold that in this case there is not sufficient evi-

to the jury: «....

Mr. Potter, in his address to the Jurs, said that even assuming that the notice was a libel, the publica- tion of it was a privileged occasion and was without malice.

Therefore judgment for the de- fendants must be given. However, in order to save the possibility of a re-trial being necessary should the case be brought to the Appeal Court. It was destrous for the Jury to decide whether or not the money was in fact owing.

SAUCE FOR THE GANDER

Mr. Macnamara had stated that Mr. Brayfield should have been sued. but, in his submission, what was sauce for the goose was sauce for the gander, for Mr. Brayfield could have done the same.

When asked to pay the $9:10, Mr. did not exist, the action taxen" by Srayfield could have paid under the Stewards was privileged, and protest, and then brought an ac- quoted a number of cases on quali-ion in the Summary Court for the fled privilege to support his con- return of the money. tention.

MR. MACNAMARA'S REPLY

Mr. Macnamara, replying, sald

It was quite true that the Stewards thought they had power under, Ar- ticle 79 to post the plaintiff, bat

Continuing, counsel said the Jury were not asked to give damages for the publicity which had attached plaintiff after the publication of the notice.

"

Everyone in the Colony, admit- tedly, now knew about it, but that was, not as a result of the publica-

the question as to whether theretion of the notice but in con- was any other course of action open sequence of the issue of the writ.

to them was never discussed at

all

Mr. Potter went on to deal with the evidence and asked the jury

The Stewards' power of inter- to believe the testimony of Tav pretation of the Articles, however. Kau-po, the trainer.

would only apply in cases where

Mr. Macnamara submitted that

a dispute arose and their inter-Tau could not be believed in view pretation was called upon.

the way he shifted his ground

A reasonable interpretation of on many points whilst under cross- the Article would be that if there examination. ' was a person owing money to the Club and no explanation of why he did not pay was forthcoming. then he was a defaulter.

Defendants, counsel went on. had not proved beyond satisfaction that the money was owing, and as regards the question of damages. That the Stewards acted in good the Jury must take into considera- faith did not make the occasion tion the fact that being called a privileged; the only point was defaulter was a very nasty Im- whether they were acting under putailon on a man's character. Article 79.

saw the The plaintiff's case To say that no one

incorrect, when one was that they were not and is notice was that event there could be no ques- considered that there were many tion of privilege. With definite"boys" in the Club who could read evidence that the plaintif disput- (and write English.

ed the account, he could not be branded as a defaulter under that Article.

I

THE SUMMING-UP

In his summing-up, His Lordship After Mr. Potter had made fur-the Jury had to decide was the said that the only question which

ther submisatona. His Lordship

subsidiary point of whether or no ruled: "I hold the occasion was plaintiff owed the Jockey Club privileged."

"

39.10.

QUESTION OF MALICE

The case, for the plaintiff was Mr. Fatter then went on to the that during the month of February question of malice. Mr. Potter said he was sending in 6 lbs. of fodder there was not a scintilla of evi- a day for the use of his ponies and dence of malice and, if there were, therefore it was impossible for It would not be sufficient for this them to have consumed the excess case, since the. Appeal Court had feed which the trainer had drawn

from the stables. ruled that a scintilla of evidence.

He was corroborated by his was not sufficient.

mafoos on this point and to a cer- their powers, the Stewards merely went so far as to tain extent by Major Hogg, who Bay that Mr. Brayfield would be said that if the ration mentioned dealt with undër ́Article 79.

was correct, it would have been very Mr. Macnamara sald the anxiety large. of the Stewards to recover the sum of $9.10 made them overlook the alur on a man's character which

An

using

On the other hand, there was the trainer's degial that any hay 'wa: sent, and there was only Mr. Bray- feld's word against his.

On behalf of the defence, evi- dence had been given by the train- unlicensed hawker was, at er that the excess fodder in ques– the Kowloon Court yesterday, tion had been supplied by the swarded one dollar compensation Jockey Club and consumed by Mr. from the Poor Box by Mr. Q. A. A. Brayfield's ponies. Macfadyen when it was revealed He had also stated that he com- by Acting Sub-Inspector C. Bryon municated with Mr. Brayfleld on that he had left his stall to give two occasions about this, and that chase to a snatch thief, arresting on one Mr. Brayfield replied "Joc him in Nanchang Street, Ben- key Club too rich" or words to tence was passed on the matcher that effect. of six months' imprisonment and 12 stroke, of the cane,

JURY'S VERDICT After a retirement of 24 minutes

TUESDAY, DECEMBER

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