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

James v. Halloran [1827] NSWSupC 56

libel, civil procedure

Supreme Court of New South Wales

Stephen J., 17 September 1827

Source: Sydney Gazette, 21 September 1827



This was an action for libel.  The damages were laid at £100.[1 ]  Dr. Wardell stated the case.  The plaintiff in this action, was Mr. Thomas Horton James, a gentleman well known in the mercantile world.  The defendant was the Editor, Printer, and Publisher of a newspaper called the Gleaner, in which the libel appeared.  The defendant, who appeared in person to this action, had put in a plea of justification, to the statement which he had published, but which plea, from its generality, he (Dr. W.) felt it his duty to state, could not avail him in this case.  In a plea of justification, it was necessary to set forth something specifically, and some particular time and place, in order that the plaintiff might have an opportunity of bringing forward evidence to meet it; otherwise a defendant would have it in his power to travel through the occurrences of a plain[t]iff[']s whole l[i]fe, without it being possible for him to know what it was he was called upon to disprove.  It was not necessary, however, to dwell on that part of the case, as it would arise in the course of the trail, when the line of defence which the defendant meant to set up, was known.  With respect to the publication itself, perhaps some observations would be necessary from one standing in the peculiar situation in the Colony, in which he (Dr. W.) did.  He confessed he neither liked to see libels brought into Court , nor to appear in  them, either as plaintiff or defendant; but he did, notwithstanding, think, that this was a case in which no reluctance could be shewn, even by those who least desired to see prosecutions of this nature.  Discussing a public question, in which the interests of the community were concerned, and wantonly assailing private character, were things widely diff[e]rent in their nature, and the same man who would be most anxious that public writers should possess unlimited freedom in the one instance, wou[l]d, also, be the most desirous to prevent deliberate attacks on private character, and that wanton malignity which creeps into private life, and assa[i]ls an unoffending man.

Dr. Wardell then proceeded to read the alleged libel, which was in the shape of a piece of poetry published in the Gleaner, of the 30th of June, in which the plaintiff was d[e]signated as a smuggler, a semi-vir, a coward, and a liar.  It would be a waste of  words, Counsel continued, to attempt to prove to the Court that such a publication was libel[l]ous.  The plaintiff was charged with smuggling, next with being of no sex then a coward, and lastly a liar.  The only question, then, for the Jury, would be whether those epithets were intended to apply to the plaintiff; of this fact, he apprehended, there could not be any reasonable doubt; and if so, the plaintiff, whose object was not vindictive damages, was then entitled to such reparation at their hands, as upon a fair consideration of the case, they should think the nature of it demanded.  He should be sorry to see any illegitimate restraint upon the Press; but, let freedom of discussion be allowed in every shape, he would ask [t]he Court, whether, under any circumstances, such a publicat[i]on as he had read, should be allowed to go unnoticed.  With these remarks he would leave the case, and proceed to call witnesses, reserving any further observations until the line of defence taken by the defendant should be known.

Dr. Halloran submitted that the plaintiff should be non-suited, on the ground of a variation between the alleged libel as laid in the declaration, and the publication read to the Court.  The variation consisted in the substitution of the word whose for with, and it was expressly laid down that the variation of a single word was fatal to a declaration of this nature.  Dr. Halloran quoted from Phillips on Evidence, in support of his objection.

Dr. Wardell contended that the rule only applied where the variation was such as changed the sense.  In this case, the words of the printed paper were ``with nose so cocked."  Iu [sic] the declaration it ran ``whose nose so cocked;" and the sense he contended was the same in either case.

Dr. Halloran contended that the objection was fatal, on the authority which he had already quoted.

Mr JUSTICE STEPHEN, after comparing the publication with the declaration, ruled that the variation  was not of a nature, as to sustain the objection raised by the defendant.

The defendant admitted the publication.

A. B. Spark, Esq. one of the assessors, being examined, stated that he had read the libel, and considered it to apply to the plaintiff.

Thomas Walker, Esq. deposed to his belief that the publication applied to the plaintiff.

Cross-examined. - Believes it to apply to the plaintiff from various circumstances, f[r]om his being called a tobacconist, the allusion to Mr. Raine, and various other circumstances; can give no very pointed reasons, but from general impres[s]ions believes it to apply to the plaintiff.

Re-examined. - Thinks the publication likely to injure the plaintiff in the estimation of a certain class of people, though not with those who were acquainted with him.

Mr. Bodenham stated, that he read the publication, and believes it to apply to the plaintiff; it decidedly has a tendency to lower him to the estimation of a certain class of persons.

Dr. Ha[l]loran addressed the Court at some length for the defence.  He regretted that a mere technical objection, arising from the necessity he was under to conduct his own case, had prevented him from going into that line of defence which he had purposed do[i]ng.  If it were contended that the lines in the alleged libellous publication applied to the plaintiff it must be in the recollection of the Learned Judge, that he had la[i]d it down on a form[e]r occasion, in which he (Dr. H.) was defendant, that a party coming into Court to seek reparation (for a libel) on his character, must come with clean hands, or he was entitled only to nominal damages.  The same rule, he submitted, applied in th[e] present case, inasmuch as the plaintiff had provoked recrimination by a most cruel and unmanly attack on a female relative of the defendant's, published in a letter under the signature of X. Y. Z., in a newspaper which the Learned Counsel for the plaintiff, who had said so much on this occasion, was Editor.

Dr. Wardell - That's more than  you know.

Dr. Halloran had got the learned gentleman's written apology for the insertion of the attack to which he alluded, wherein he expressed his regret that it had occurred, declaring that it was without his knowledge, and hoping he would not be pressed to reveal the name of the author, whom, notwithstanding, he observed, could not be well mistaken.  [Dr. Halloran then read the paragraph alluded to, which appeared in the Australian of the 3d of February, 1827.]  He put into the Jur[y], as husbands, fathers, and men having female relatives, to say what would have been their feelings, on witnessing so gross and uncalled for an attack.  He could not but express his surprise that the Learned Council who had that day uttered such a torrent of declamation on the enormity of this publication, could have come into Court in such a case, after having in so handsome a manner expressed a generous and manly sense of the base attack which had been made on a member of his family, of whom the plaintiff could have known nothing; convinced too, as Dr. Wardell must have been, that what had been written was only a just recrimination for the injury he had sustained.  He had nothing further to urge, but merely to hand in the paper of the Court, in which the provocation had appeared, and to request the assessors to put themselves in his pl[a]ce, and to say what their feelings would have been on perusing it.

The learned Judge (Stephen) summed up the evidence.  The words were clearly actionable, as having a tendency to a breach of the peace; and the only question then was, whether the Jury, from the evidence before them, were satisfied that they applied to the plaintiff.  With respect to the publication which the defendant had handed in to the Court, it not only would, but ought to have its effect in regard to assessing d[a]mages, though, in point of law, it did not amount to any justification.

The Assessors found a verdict for the plaintiff, and assessed the damages, and costs, at £25 sterling, observing that they would have found a different verdict, had not such a lapse of time (four months) occurred between the publication by the plaintiff, in the Australian, and that which was the subject of the present action.


[1 ] For another account of this trial, see Monitor, 24 September 1827.  The Monitor said that the poem was called "Three dozen, or a pipe for the Tobacconist".  It also reported that the defendant claimed that the plaintiff struck the first libellous blow to the defendant's relative in a letter signed X.Y.Z.

Published by the Division of Law, Macquarie University