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Decisions of the Superior Courts of New South Wales, 1788-1899

Barker v. Jemott [1819] NSWKR 1; [1819] NSWSupC 1

slander - Van Diemen's Land litigation

Supreme Court
Field J., Hobart, January-February 1819
Source: Sydney Gazette, 20 February 1819[1]

This was an action for damages for slanderous words alleged to have been spoken to the plaintiff under the following circumstances:
In October last the defendant brought an action in the Lieutenant Governor's Court to recover from the plaintiff the amount of expences to which he had been subjected in consequence of having been summoned and bound over to keep the peace on a complaint to the Magistrates by Mr. Anthony Fenn Kemp, founded upon a report to him by the plaintiff his clerk, of threats imputed to the defendant towards Mr. Kemp to horse-whip him; and which the complaint was dismissed by the magistrates.
Barker obtained a verdict in the Lieutenant Governor's Court; and it appeared that in conversation with some persons after the trial, the present defendant had said of him "There stands a public perjured informer." To the present action for these words the defendant now justified, on the grounds that the deposition made by the present plaintiff, in the case in question, was untrue and a perjury [?] for a conditional threat uttered under a feeling [?] the deposed to a positive one.
The learned judge held that the justification was completely made out, and pronounced the deposition made by the plaintiff to be a perjury, and as an equivocating falshood, one of the most mischievous kind.
The learned Judge reprobated in strong terms the idea that a clerk or servant deserved praise for carrying to his employer tails and reports of every incidental expression which he might hear spoken against him in moments of irritation; and considering the distinction between what affected character and temperate words, as always sufficiently clear, His Honor expressed his opinion that the garbled repetition of expressions of that kind, more particularly when guarded by a qualification repeated over and over again, at the moment of them being used like the present, was pernicious and meriting the most pointed reprobation, as tending to encourage assault where the person spoken of had spirit to resist the reflection, or to appeal for protection to the Magistrates, which could only be supported by perjury.
The learned Judge emphatically councelled the people of the Settlement, in such dissentions as small societies are most peculiarly liable to, to avoid bringing into a Court of Law suits founded like the present upon tale bearing. Verdict for the defendant.

Note

[1] This trial was held in Hobart, at the first sitting of the Supreme Court in Van Diemen's Land : Alex C. Castles, Lawless Harvests or God Save the Judges: Van Diemen's Land 1803-1855, a Legal History (Australian Scholarly Publishing, 2007) at 71-72. Between 1814 and 1824 there was only one Supreme Court for both locations. That court was restricted to civil matters. In the same way, the Court of Criminal Jurisdiction covered both New South Wales and Van Diemen's Land until its abolition in 1824.

The Lieutenant Governor's Court was the Van Diemen's Land lower level civil court, the equivalent of the Governor's Court in New South Wales. See Marsden v. Howe, 1818. On the courts in Van Diemen's Land, see also R. v. Smith, 1817.

This report was an extract taken from the Hobart Town Gazette and republished in the Sydney Gazette. See also Supreme Court of Civil Judicature, Judgment Rolls, 1817-1824, State Records N.S.W., 9/2218 (no. 140).

 

Published by the Division of Law, Macquarie University