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

Lowe v Dangar [1826] NSWSupC 51

libel - damages, assessment of

Supreme Court of New South Wales

Forbes C.J.,[1 ] 7 August 1826

Source: Australian, 9 August 1826

 

An action for Libel at the suit of Mr. Lowe, of Bringelly, against Mr. Dangar, one of the Assistant-Surveyors, was tried in the Supreme Court of New South Wales on Monday last.

The Libel was published in the Sydney Gazette, on the 2d of January last, and appeared in the shape of a Letter, addressed to the Editor.  The Libel charged the Plaintiff with having horse-jockied and over-reached the Defendant, in exchanging a horse for a mare, that was represented to possess many good qualities, which the Defendant, on experience had not the good fortune to discover.  As the Defendant indeed found him to be a jade, and not fit to carry him in a gentleman-like style, he applied to the plaintiff by letter, to annul the bargain, not doubting that, as the Plaintiff and Defendant were on the most friendly terms, that the Plaintiff, on being made awake to the imperfections, or want of perfections in the rampant pony, the Plaintiff would comply with the suggestion. -  Letters however, passed to and fro (the Defendant having unavailingly depicted his sad disappointment - and Plaintiff having expressed his wonders that Defendant should think him so weak as to forego the bargain) - all - all to no purpose.  Arbitration was preposed by Defendant - rejected by Plaintiff - and Defendant not relishing the glorious uncertainty of the Law, applied himself to the glorious certainty of the Press, and published his grievances. - The Plaintiff considered that the exposition of these grievances was not exactly conformable to truth ---- moreover, that there were sundry insinuations against him, quite unmerited; and he therefore appealed to the glorious uncertainty, and plumped Defendant into the very pit he thought he was carefully avoiding, when he threw himself into the arms, and under the protection of the Press.  The Plaintiff deemed it libellous to be held up to the world as a "Botany Bay Gentleman," as one who had horse-jockied and over-reached his very dear friend, and the Court and the Assessors seemed to think him "there, or thereabouts" in his opinion, and supported his notions of libel with a Verdict of Twenty-five Pounds.

Some little effort was made on behalf of the Defendant to shew that horse-jockeying however, censurable, and inexcusable, when tried by the true test of honor, morality, fair dealing, &c. was not held by the world in general in that horror and disrepute to which equivocal dealing in Merchandize and Bales of goods, exposed those who put it in practice.  This way of putting the thing, was somehow or other admitted to be a fairish way, but, however, it would not do, and so Mr. Dangar was adjudged to pay the sum above mentioned to Mr. Lowe.  The Verdict was accompanied with this remark, as nearly as we could collect - "the grounds on which damages are assessed so low, are, that Defendant appears to be a Clerk in Office, and not to be in a situation to afford heavy Costs.  It would have been better had the whole been submitted to Arbitration, according to the proposal of Defendant; the whole Letter appears to have originated in exasperated feelings, and not written with a proper regard to facts."[2 ]

 

Notes

[1 ]Stephen J. resigned as temporary Justice of the Supreme Court on 27 May 1826, and was not sworn in as puisne Justice until early November 1826. See C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, pp 97-98; Australian, 3 June 1826. In the meantime, Forbes C.J. sat alone.  The Monitor reported on this case on 11 August 1826: W.C. Wentworth acted for the plaintiff, and Dr. Wardell for the defendant.  The Sydney Gazette, 9 August 1826 reported that damages were laid at £400.

[2 ] The Monitor, 11 August 1826, reported the Forbes C.J.'s statements as follows: "the Chief-Justice in giving judgment, took occasion in commenting on the case, to observe, that a libel could be generally defined.  It was constituted by any malicious defamation, causing avoidance of society, or injury to character, &c.  In order to sustain such a charge, it must be proved that the matter is libellous - that it referred distinctly to the complaining party - and the publication must be traced to the defendant.  After these preliminary observations, his Honor adverted to the averments in the declaration, particularly to the passages in the libel most objectionable, leaving it to the gentlemen assessors to put their own construction on them.  Horse-dealing, the Chief-Justice observed, stood insulated, and he would in some measure go along with the learned counsel for the defence in his ideas of jockeying. ... His honour remarked, in pronouncing the decision of the court, that libel cases occurring frequently, which went only to establish character and good name, and the court taking into consideration in the present case, that the defendant stood only in the light of an office clerk, had awarded very moderate damages."

 

Published by the Division of Law, Macquarie University