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

Klensendorlffe v. Oakes (No. 2) [1827] NSWSupC 39

slander, damages, nominal

Supreme Court of New South Wales

Trial, 11 June 1827

Source: Australian, 13 June 1827

This was an action brought by the plaintiff against the defendant, for slander.[1 ]  The damages were laid at 500l.  The defendant pleaded the general issue of not guilty, upon which issue was joined.  The case having been opened by Mr. Rowe, and the circumstances connected with it being detailed by Dr. Wardell, witnesses, who gave the following evidence, were then called.

Mr. Thomas Moore, J.P. examined. - I am a Magistrate of the Colony, recollect Mr. Oakes, the defendant, calling on me to request a warrant to search for a bullock's hide.  This was a good while ago, I think it was about November, 1825.  Oakes said that Klensendorlffe had stolen and killed a bullock of his, and expressed a belief, that the hide of the bullock he slaughtered, was then in the tan pits of a person named Cole.  I expressed an opinion; that I thought Klensendorlffe would do no such thing as steal a head of cattle, and at length refused to grant a warrant.  I desired Oakes to go to Cole's house, and see if the hide he spoke of, was there; Oakes returned shortly afterwards, and said he had found the hide in question on Cole's premises.  I had previously known there was some misunderstanding between Klensendorlffe and Oakes before he came to me.  I had heard about a sum of money being offered by Klensendorlffe, as a compensation for the bullock he had killed, which belonged to Oakes.  I said if Klensendorlffe had really offered £5 the sum mentioned for the bullock, it was as much as it was worth.  I finally gave it as my opinion, that Klensendorlffe could hardly be said to have committed a felony, and refused to grant any warrant whatever.  I advised Oakes to make friends with Klensendorlffe, but he said, "no, I will follow him up."  I understood from this, that he meant to proceed in a criminal way against him.  He, Oakes added, that he thought the act would either transport or hang him, meaning Klensendorlffe.  Oakes appeared very much agitated, and expressed himself in a very violent manner, he seemed to speak very maliciously.

Cross-examined - Mr. Oakes applied to me in a magisterial capacity, to complain of a felony, which he supposed Klensendorlffe had committed.  Before he came, I had heard Klensendorlffe and Ikin the Chief constable speak on the same subject.  I think if a man comes to complain of another, he need not give way to passion.  I do not think that passion and malice are synonimous.  I should not be very well pleased if any person were to steal a head of my cattle; but I would not abuse him.

Re-examined - All complainants do not come to me in the same way as Oakes did.  It appeared to me that he would do Klensendorlffe an injury if he could.

By an Assessor - This conversation took place after Oakes had returned from Cole's, and said he had found the hide, for which he sometime before requested a search warrant.

Mr. George Brown - I know the plaintiff and defendant in this action.  The plaintiff is an inn keeper and a landholder, besides a farmer and grazier.  I recollect a conversation which I once had with the defendant Oakes at my house.  Oakes said, Klensendorlffe has stolen and killed a bullock, by property.  I'll hang or transport him, if it cost me a thousand pounds.  At the time Oakes so expressed himself, he held a paper in his hand, which he said was an order.  Oakes said, alluding to that paper, "I will spend that, and I have plenty more bullocks in the New Country which I will bring down if required, and expend them also, to get him Klensendorlffe, either transported or hanged.  I understood Oakes, when speaking of the New Country, that he meant the County of Argyle.  There was a good deal of other conversation.  He mentioned the finding of the hide of the bullock which Klensendorlffe had stolen; and added, that he Klensendorlffe had run a long time, but that now he would stop his gallopping.  Understood from this remark, that Oakes meant to say, that he should be the means of putting an end to his existence.  Oakes appeared to speak in very revengeful and malicious terms.  This conversation occurred at my own house.  I have heard Oakes speak of Klensendorlffe in the same way at other places.  On these occasions, he was directing his discourse to other persons.  He then spoke in a loud and seemingly vindictive manner.

Cross-examined - This conversation occurred some time in November, 1825.  I do not think it was on the same day that the defendant went to Mr. Moore the Magistrate after having found this hide.  I think it was afterwards.  I am on somewhat friendly terms with the plaintiff.  I have not always been so; but I have been pretty friendly with him of late.  I did not know at the time of the conversation alluded to, that the plaintiff was in custody - it was either a few days before or after.  I think it was after, but am not positive.  I have never seen any of the pleadings in this case; there has been no rehearsal of what I have said to-day.

Re-examined.  I heard Oakes report these charges against Klensendorlffe upon other days, than the one which I have related to the Court.

Mr. William Ikin. - I am a Sheriff's Officer.  I was at one time chief constable at Liverpool.  I resided there at the same time.  I know the plaintiff and defendant in this cause.  I recollect Oakes complaining to me of having lost a bullock at one time.  I recollect some expressions he used at the same time he came to make the complaint.  He said Klensendorlffe had stolen a bullock from him, and had killed it, and that the hide of the bullock was then in one Mr. Cole's tan pit.  He requested me to go with him and get it.  I told him, he must first go to Mr. Moore the Magistrate, and get a warrant.  He accompanied me to Mr. Moore.  Upon arriving at Mr. Moore's house, he said he saw no necessity for issuing a warrant, expressing a belief that if the hide was on Mr. Cole's premises, he would give it up, or in other words would not obstruct a search.  Oakes and myself went away together to Cole's house, told him our business; and he, without hesitation, delivered up to us the hide, which was afterwards taken before the Cawdor Court.  After the finding of the hide, Oakes appeared a good deal pleased; he took a piece of paper from his pocket, and said, that was an order for 300l. odd, which he had received from Smithers for some bullocks he had sold him; that if it cost him as much as the amount of that order, he would transport Klensendorlffe; said Oakes, "I have been a long while looking for him, meaning Klensendorlffe, and now I have got him at last.  I thought Oakes spoke as though there had been some previous enmity between him and Klensendorlffe.  He appeared to be very vindictive.  He spoke of Klensendorlffe in a very public manner.  I believe all Liverpool knew of the finding of the hide ten minutes after it was found.  I had Mr. Klensendorlffe in custody seven or eight days upon that charge.

Cross-examined - The hide was taken to the Cawdor Court; there was a brand of F. O. on it; I think the initials of the defendant's name are F.O. I have known the plaintiff for some time; I would never have expressed myself in the same way as the defendant did, even to my greatest enemy; defendant said Klensendorlffe had stolen and killed a bullock; at this time he was just informed of what share the plaintiff had had in the transaction; he came to me as being the chief constable, and claimed my assistance; I knew nothing of the bullock before Mr. Oakes told me; I am not friends with either the plaintiff or defendant in this case, for they have both done me an injury, at different times.

Re-examined - It was not usual for me to search a person's house without a warrant; I think I should have been dismissed if I had gone to search a person's house without the authority of a search warrant; defendant took me up and down the town of Liverpool, and introduced me into several houses, where he repeated the language he had previously addressed to me, respecting Klensendorlffe.

Several other witnesses spoke to much the same effect as above.

Defendant's Counsel (Mr. Wentworth) addressed the Court and Assessors, but declined calling witnesses.  Verdict for the plaintiff - Damages one shilling.  Each party by this verdict will have to pay his own costs.


[1 ] This trial was also reported in the Sydney Gazette, 13 June 1827.  See also Klensendorlffe v. Oakes (No. 1), July 1826.

Published by the Division of Law, Macquarie University