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

Wardell v. Howe [1827] NSWSupC 21

libel - press freedom - "Almorah" - damages, nominal

Supreme Court of New South Wales

Forbes C.J., 29 March 1827

Source: Australian, 3 April 1827

 

Mr. Wentworth. - In this case, Dr Wardell is plaintiff, and Mr. Robert Howe defendant.[1 ]  This is an action for an alleged libel, and the declaration contains eight counts.  The first, after the usual inducement of good character, goes on to state that plaintiff, at the time of the publication of this libel, was a proprietor of a certain public newspaper, called "The Australian," and had been the proprietor of the "The Statesman" daily evening newspaper, published in the city of Westminster, but had sold the proprietorship of the said paper, and after such sale and before the committing of the grievances complained of had emigrated to this colony, designing among other objects to establish a newspaper to be called "The Australian," and that the sale of that paper obtained great circulation in the Colony.  The first count further states, that on the 11th of Aug. last there was published an article in the Sydney Gazette, tending to bring plaintiff into disrepute, by causing it to be believed that The Statesman Newspaper, whilst plaintiff was proprietor, failed, and at the time of the alleged failure, a sum of money was due to the Stamp Office, and to satisfy the same, plaintiff had to sell off a part the stock in trade, and was in consequence compelled to emigrate to this Colony - and that The Australian Newspaper was likely to sustain a similar fate. - The usual averments were made, and it was stated that the article headed anticipation, which appeared in the Sydney Gazette Newspaper, was a false and scandalous libel on the character of the said plaintiff.  The eighth count was abandoned - the other counts laid the libel in various ways.  To these counts no special damage is added, and to the whole of them a general issue is pleaded.  Gentlemen, this is the only issue the defendant has pleaded, though it - was competent to him, if he would have justified this defamatory matter to have done so - the defendant has merely put on issue the fact of publication - that is, whether defendant had published this paper or not, with the intention charged in the declaration; that the meaning of the libels such, as stated in the paper, I think it impossible for any one, without any proof whatever to the contrary to entertain any doubt.  The plaintiff, as is stated in the declaration, was at the time of this publication a proprietor of "The Australian" Sydney Newspaper - the defendant was proprietor of the Sydney Gazette.  From the commencement of the establishment of The Australian, it is clear, from all the publications which proceeded this, that the defendant felt himself in an uncomfortable situation - that he was fearful this newspaper would out-rival his own - he, in fact, experienced the truth of his anticipations and conjectures - that he viewed that publication with the utmost jealousy, and was anxious, by every means in his power, to throw odium on the Editor of that paper, and to curb that circulation which he anticipated, and that it was his object to stifle The Australian at his birth - from the appearance of which paper he must materially have sustained pecuniary injury.  Actuated with these views, scarcely had this new publication been born, when every species of calumny and vituperation, which any man could resort to, was resorted to by this defendant - libel followed on the heels of libel, till at length the plaintiff, with all his regard for the liberty of the press, and he is desirous that that liberty should be to shew the defendant the difference between the liberty of the press, and its licentiousness, and that the liberty of the press did not authorise persons to vituperate another's private character.  The plaintiff therefore commenced this action, under an expectation that it might have some effect upon the future conduct of the defendant.  He allowed this action to stand over under such an expectation, and in the daily hope that the liability of the defendant to be called on in this way, would shew him the dangerous consequences, if he persisted in such a line of conduct, and that he would be disposed to profit by the warning.  In this hope the plaintiff had been disappointed - instead of curbing his violence of writing, it seems to have made him more inveterate.  With the motives of the plaintiff, however, the Court has perhaps little to do.  The question, Gentlemen, for your consideration is, whether the publication complained of is a libel or not.  That it is a libel, and a gross one too, according to all the authories, I make no doubt his Honor will rule in his charge to you.  The libel is headed anticipation.[2 ]  [The learned Counsel here proceeded to read the article.]

"Thursday morning, Dec. 1, 182-

"The tolling of the lumber-yard bell, at day-light this morning, excited considerable alarm in the neighbourhood, particularly of M--- place, and various conjectures were afloat on the occasion.  One poor Devil was seen on the bridge, who gave a confused account of the cause, and being without proof, no attention was paid to him, until at length a diminutive figure of only one English foot, 9 inches and 88 decimal parts high, made his appearance, and reported as follows: - [So far, there is no harm - it is perhaps ingenious, and shews that the defendant, in speaking of the devils, and so forth, is master of his art - he appears to know what devils and table balls are, which, perhaps, Gentlemen, you know very little about.  It may be called a very ingenious allegory - but the malice of the thing is now coming.] - That an Australian had, at the hour of one that morning, departed this life, having been for some months past in a languid, lingering, and declining way, that he had never enjoyed good health, but from his birth had been ricketty and feeble - that he had been discovered stretched upon a cane settee, his head supported by two sable bails worn out, discoloured and moist that, on seeing the figure just mentioned, he raised his head, and in accents scarcely intelligible, thus spoke: - `Behold in me, my young friend, a type of mortality - a victim to credulity - the die is cast - my fonts are exhausted, and my frame will soon have its last press by the tympan of the grim tyrant - my tinis sheet is so blotted and torn, that it can never be revised.  I would fain say a few words before I am quite worked off - they may perhaps prevent the circulation of injurious rumours and misrepresentations.'"  Now, Gentlemen, mark what follows: - You will perceive that the writer makes the plaintiff the speaker.  "I am the natural son of a personage who once moved in the quality of a Statesman, but who, like myself, was betrayed by false friendship, and deluded into taking the wrong side of the question - (meaning hereby, undoubtedly, that The Australian Newspaper took its rise and origin on that other paper alluded to by the name of The Statesman.  What else, Gentlemen, I ask, can be the meaning, but that The Australian did proceed from the ruins of The Statesman.  The writer goes on to explain) - the consequence was, that he got disgraced, discarded, and betook himself into the obscurity of a Court in F--- street, London, where he lingered a few weeks, and gave up the ghost.  This might, perhaps, have been accelerated by the introduction into some of his works of defamation of certain characters, for which my sire was prosecuted and fined."  Is it not obvious that it means to say, The Statesmen, in consequence of the principles advocated in that paper, got into disgrace, and that the plaintiff was obliged to betake his paper into an obscure court in some street, beginning with the letter F. in London - when, after lingering (in the words of the writer) for some time, it gave up the ghost.  The plaintiff too was fined and imprisoned for libel.  That it is not the paper itself the writer alludes to, is obvious - the paper itself cannot be fined for libel and defamation of character - the whole therefore is an allegory; but it is equally clear that the proprietor of both these papers is the person meant - it is alike clear that the author of this publication in question was well aware of the dangerous ground he was treading - he knew it was libellous to write of a man - to say of him that he had not sufficient to pay his debts.  But to counteract the consequences of publishing a statement of that kind, whether true or not, he goes on to state, after publishing these reports, that "they are malicious and false," and at the same time does not mean it.  The sentence runs thus; "Ill-natured reports have gone so far as to say, that he had not effects sufficient to pay his debts, but these were malicious and false."  The writer, by this apparent contradiction means to insinuate to the reader that it is true.  After throwing out this imputation, which is malicious and unfounded, the writer goes on to say - "there was certainly something due to the S---- Office."  What he means by the letter S is pretty clearly shewn by a subsequent paragraph. - "For all these services (alluding to something in another paragraph) misfortune has set her stamp on me."  That the defendant is in fact alluding to the plaintiff, under the character of The Australian, is quite obvious, from the following passage:- "What mischievous demon could possess me to emigrate, I am at a loss to tell you.  Ambition and vanity spread snares for me, and I thought from the preserved ashes of my departed sire, to raise a meteor in a new world, which, whilst it dazzled, would improve, entertain and interest mankind."  In this paragraph there is no libellous matter, but it is nevertheless material, because it is explanatory of the preceding sentences, and evidently shews that with the remnants of The Statesman, which died a natural death, with its remnants of types and materials the plaintiff emigrated to this Colony, with a view to establish this other paper, The Australian that the whole of this is allegory, and which this personification is intended to apply to the plaintiff is obvious, from this paragraph.  "I appeal with confidence to the few friends I have left and to the public at large, whether I have not been forward on every occasion to advance their interests - I laboured hard for the Emancipists - I supported the cause of Trial by Jury - and thought I do not pretend to say that I projected the farce operatical, called "The Almorah" (for the representation of it has not yet closed) yet I confess I had some concern in the composition of the music, and the direction of some of the Airs, which wafted it in fancy's eye to other shores for rehearsal - and when this denouncement is known, then will the curtain fall in triumph."  ...

Gentlemen, it is clear, if you can bring yourselves to believe that this is a mere allegory, intended to personify the plaintiff in this action, under the character of the Editor of The Australian, there must be a Verdict for the plaintiff.  In the short space of two or three sentences, two gross libels are committed upon the plaintiff - there is first - the allegation that he was prosecuted, found guilty, and fined for a libel; secondly - that he had been insolvent, inasmuch, as he was obliged to sell the stock in trade of the paper, and was compelled to emigrate to this Colony.  Gentlemen, it is impossible, you will be aware, that any imputation could be made to sink the plaintiff, so much in the estimation of society.  Here was a gentlemen, moving in the first ranks of this Colony, certainly of unblemished reputation, esteemed by those who were his acquaintances; when out comes a publication of this sort, containing charges, that he had been a common libeller in England, and that he had been compelled to betake himself to some place more disreputable than F.--- street - into some court or other - that this retirement had not befriended his paper, but that "it gave up the ghost," and that plaintiff being reduced to indigent circumstances, was obliged to pay the government duties that were owing, out of his stock in trade.  Now, gentlemen, I will ask, what possible device could be framed, more calculated than this, to degrade the plaintiff in this Colony, to lower him in the estimation of his common friends and acquaintances, supposing any person would give credit to those statements, that they would, and that they have obtained a partial credence and belief among many friends of the plaintiff, I could have proved, if it had been necessary, I could have brought forward several persons of high respectability in the Colony, to prove, that such a particularity of circumstances in this statement - such an apparent knowledge of facts, was not easy for a person to believe, that they had not some foundation in truth; here is a particular paper which every body knows the plaintiff was Proprietor of in England - here are certain libels alluded to - a particular street alluded to  a combination of circumstances, so much like truth, as to induce people to say - surely, this cannot all be false.  Gentlemen, I say, it is all false, there is only one truth in the whole of this article - and that is, that the Plaintiff was the Proprietor of the Statesman, that this Paper experienced a fate described in this publication, is certainly most false - for I have the original document in my hand, which shews for what consideration and value the Statesman Newspaper was purchased by Dr. Wardell - and there is another document, shewing for what he sold that Paper, and how much he realised by the purchase.  On the 11th of December, in 1819, he bought the Proprietorship of the Statesman, together with a Sunday Paper, from a gentleman of the name of Perry, for £2000, and afterwards sold it alone, to a Mr. Rowland, for a sum exceeding £3000; after having been Proprietor of that Paper for a period nearly of four years.  Gentlemen, it is not necessary for me to go into the truth of those allegations - it is with the other side, to shew a something in denial of the truth, but I just allude to those facts, in justice to the plaintiff, to shew the scandalous assertions which are contained in this publication before the Court.  Gentlemen, the fact of the difference in the value of the Paper, from the time that Dr. Wardell assumed the Proprietorship, till he vacated it, proves that the value of the Paper had encreased.  Now, gentlemen, what has become of this Paper, the Statesman? why gentlemen, I can shew you from another Paper, The Globe and Traveller.  After the departure of the plaintiff from England, a considerable time, an arrangement was entered into, between Mr. Rowland and another Proprietor, of a Daily Evening Newspaper in London, and the Statesman became incorporated with the Globe and Traveller, therefore gentlemen, the whole of that paragraph, speaking of the extinguishment of the Statesman, is a scandalous and malicious invention, it is equally as scandalous to say, the publication ever took place in a Court in Fleet-street.  The allegation of money being due the Stamp Office was equally false - If the paper could be sold for no less a sum than £3000, it was not likely that any money would be lying due at the Stamp Office, or if it was, that there should be a necessity to pay it out of the stock in trade of the Paper.

This libel, then gentlemen, being of this character, the record proving it to be untrue, for it is incapable of proof, I will put it to you, can any thing be more scandalous than that such a publication as this should have been hazarded?  Gentlemen, I would ask, yourselves, if you could believe, that Doctor Wardell had been the person mentioned in this paper - that he had been a bankrupt Proprietor of a paper in London, that his concerns were so much involved, that his stock in trade had been laid hold of to pay a government debt, that he emigrated to this colony with the little remnant that he had left, because he could not exist in England or elsewhere?  What would you think of such a man - would you not look upon him as a bankrupt - think him as a very secondary being from the man you before thought him?  I will ask, Gentlemen, how an imputation of this sort, in ninety-nine cases out of a hundred, could be met in this colony.  In this case it does happen that if the defendant had attempted to justify his crime, he must have failed; because, if any person had given him this information (but, I partly believe, it is a fiction of his own) it does happen, I say it could have been disproved.  It happens that I have been on terms of friendship and intimacy with Doctor Wardell and his family, and I could have proved where he had lived.  I am acquainted with his circumstances and his connections.  Gentlemen, I am sorry to say, this is but one fiction out of a thousand - there is no scurrility, no species of personal vituperation which could be practised by one person towards another, that has not been resorted to by the defendant; he has held the plaintiff up as a liar, a coward, an humble apologist, a paltroon, in short, in every way he has heaped odium and obloquy upon him.  It was but the other day that defendant, in a paragraph in his paper, pretended that plaintiff had tendered a submissive apology.  I ask whether this is to be tolerated. - Gentlemen, can you believe this?  How often is it that persons emigrate to this colony without a single friend to accompany them?  Did the defendant know that there was any person in the colony who could refute the calumnies he promulgated? - Gentlemen, he hoped the poison would go forth to the world, and make society look on the man he so unjustly vilified, as a paltry, petty bankrupt, one who had come out with a few types, because he could not find a subsistence in England, and had no other resource but to take himself to this colony.  These, Gentlemen, were the impressions he hoped to have established in the public mind, to diminish the sale of The Australian, and thereby increase his own upon the others ruin.  Gentlemen, if this had been a solitary attempt, the plaintiff would not have persevered in this action.  It is not a pleasant thing for one Editor to be bringing an action against another.  But I will ask you, Gentlemen, how you would like to be held up as a set of bankrupt merchants, and as having been fined and imprisoned.  Do you imagine that the liberty of the press is to make a man odious and detestable, not only in the society where he exists, but throughout the world.  There is no friend to the liberty of the press but would pardon some willing eccentricities; but it is essential, to a due exercise of the press, that actions of this sort be brought.  They are calculated to shew that personal abuse is not to be allowed, or defamation of character tolerated.  Gentlemen, I will not detain you by making further comments upon this publication.  I am sure you will collect from it its obvious tendency.  It is clear, as His Honor will tell you, Gentlemen, that if you believe the application & that Dr. Wardell is intended to be personified with this paper, that the imputation of time and imprisonment is meant to attach to him, the alledged insolvency of the paper in England is meant to attach to him also, that this is an unequivocal libel in law.  With regard to the measure of damages, I will leave them with yourselves.  I must say, however, it is at Doctors Wardell's request that this case should be left to the decision of twelve good honest men, as the law calls them; perfectly satisfied to leave the election of those twelve men to the defendant.

The following evidence was then called -

Mr. James Thompson examined - Bought the publication before the Court, at the Gazette Office, in Sydney, on 7th day of October last - witness made a memorandum on it at the time - it is defendant's office - defendant was present at the time of the purchase - the paper put in the witness's hand, was headed "Sydney Gazette," dated 11th of August, 1825.

Mr. Chambers said he had been a subscriber of the Sydney Gazette for a considerable time - he discontinued taking that paper, last Christmas - the paper produced, headed "Sydney Gazette," was left at witness's house - does not know who is the person that delivered it  knows that the Gazettes were usually left at his house by a servant of the defendant's - he has paid bills at the Gazette Office for the newspapers that were delivered at his house - in one of the bills was included the paper before the Court - witness here produced a receipt, signed James Greenfield, acknowledging the receipt of a sum of money for newspapers, on account of (Robert Howe) the defendant - witness once had conversation with defendant, wherein he expressed a wish that he should pay his account for newspapers, to the clerk, in the shop.

James Greenfield. deposed, that he is clerk to the defendant - is empowered by defendant to receive bills for Gazettes - has received monies from last witness, on that account - pays the same over to Mr. Howe - any person wishing to be supplied with Gazettes, can have them, by applying at the Gazette Office - that office belongs to the defendant - has no doubt the paper produced, was printed at the Gazette Office - defendant may be the editor of the Gazette - cannot speak decidedly on that matter.

Cross-examined - did not see the paper put into witness's hand, printed at the Gazette Office - there is no signature to the paper, from which it can be inferred who is the publisher of it.

By the Court - there is no other paper in the Colony, called the Sydney Gazette.

Mr. W. C. Wentworth stated, that on the 11th of August, the day of the publication complained, plaintiff was proprietor of The Australian Newspaper - knows that plaintiff was the proprietor of a paper published in London, under the name of The Statesman, which was published in the city of Westminster - further, knows that plaintiff sold that paper, previous to his departure from England, for a considerable sum of money - that when he came to this Colony, he intended to publish a newspaper, called The Australian - that he has conducted that paper, principally, since it was established - at the time of the publication before the Court, he conducted it wholly.  Mr. Wentworth here closed his case, for the plaintiff.

In defence to the action two objections were taken.  First - that the publishing of the paper which had been put into the Court, had not been proved.  And, secondly - that the article had no application to the plaintiff.

(Note. - In arguing these points, it was urged on behalf of the defendant, that plaintiff had published libels on the defendant.  This is not true, nothing savouring of libel ever emanated from the pen of the plaintiff.  If it had been true, and been so proved to be true, it would be no defence, as may be seen by a variety of cases.  Ed.)

The Court. - Is it admitted that the action was commenced on the 25th of August.

Mr. Wentworth said he would admit nothing.  If evidence could be offered in proof thereof, it had better be gone into.

Mr. Gurner, clerk of the Supreme Court, was then called, who proved the writ for the present action to have been issued on the 22d of August, 1825, and appearances entered on the 9th of October following.

Mr. Wentworth replied, and the Chief Justice summed up.

This is an action for libel.  The plaintiff seeks to recover compensation from the defendant, who is alleged to be the proprietor and publisher of the Sydney Gazette newspaper, for certain defamatory observations on his character.  Two objections have been taken on behalf of the defendant in this case.  First - that there has not been legal proof of the publication.  And secondly - that there has not been sufficient proof that the plaintiff is the person who was alluded to in the article.  I am always anxious if there is any evidence to go to a Jury, to put it to them.[3 ]  The fact of publication is the point upon which this action mainly depends.  A witness states he bought that paper, in common with others - he marked it at the time - and that it was on the 7th of October.  Now it appears from the evidence of a witness, who is called Mr. Gurner, that action was commenced in the August preceding; therefore there is not direct proof of publication; but the evidence of Mr. Chambers is called, to shew that he received a similar paper to the one before us, in the usual manner of delivery; that he had been accustomed to receive papers from the Sydney Gazette office.  But this witness did not say that the paper before the Court was expressly delivered to him by Mr. Howe's servant.  Now from this evidence it is sought to be established, that defendant was the Editor and Publisher of the Sydney Gazette.  But it does not appear that the particular paper exhibited to the Court was received by him on the 11th of August.  There is direct proof of publication in October; but there is also direct proof of the action having been commenced some time before, and therefore no direct proof appears before us of the publication, which is the gist of this case, being some time before.  Mr. Howe's servant is called, a man of the name of Greenfield, as a witness.  He proves a receipt of money, to which his name is affixed on account of Mr. Howe. He says, Mr Howe keeps the shop at the Gazette Office and has no doubt the paper exhibityed is one of Mr Howe's papers, but does not speak to the date of publication. - Gentlemen, I will put it to you whether you can safely arrive at a conclusion, that this particular paper has been published by Mr. Howe, and I must beg of you to discharge from your minds all previous knowledge that you might have possessed of this publication before, or the relative conditions you might stand in with either party in this case.  Juries cannot take private circumstances into consideration; therefore you will have to look at this case entirely from the evidence which is before you.[4 ]  Gentlemen, the next ground of objection taken by the defendant is, that there is no proof that the inuendoes are applicable to plaintiff.

It is contended that this is an allegorical article; and it has been endeavoured to be shewn that it applies to the plaintiff.  What proof is there of this.  The evidence of Mr. Wentworth is that Doctor Wardell was the proprietor of The Statesman, and afterwards the proprietor of The Australian.  Gentlemen, is this proof that the article refers to the plaintiff in this action, does it mean him and no one else?  there might have been another paper of the name of The Statesman.  Some persons might have been called to shew that this article was allegorical, that it did apply to the plaintiff and him only; but here we have only an averment that he was the proprietor of The Statesman, and afterwards became the proprietor of The Australian. But, Gentlemen, it does not appear as a necessary consequence, that this article applies to the proprietor of The Australian, as having been the proprietor of The Statesman.  It is merely left as an inference from the general statements made to us.  With respect to that part of the paragraph, upon which a construction has been put by Mr. Wentworth, that the letter S office is intended to mean the Stamp Office, I think it going to too great lengths; how are we to know what the single letter S means?  There is nothing beyond a general statement.  Can you, Gentlemen say that you can come to this conclusion on oath, that this statement - I am the natural son of a Statesman, &c. applies to Dr. Wardell, and no one else.  It is contended that there is an allegation, charging the party, be he who he may, with crime - he is represented as having published certain works of defamation, for which he, the Statesman, was prosecuted and fined, and tracing the consequences of this, that he got discarded, ruined, and was obliged to quit the country.  Gentlemen, I am prepared to admit, laying every other consideration out of the case, that to say a Gentleman had a paper, had been convicted of libel, and, in consequence, had been ruined in his circumstances, and come to this colony, having quitted England without paying his debts, would be attacking him in a certain degree in his occupation.  But, Gentlemen, I will put it to you whether you can collect from this allegorical instrument, that it applied to the plaintiff, as the person who was the proprietor of this Statesman, and afterwards of The Australian, and no other; and secondly, whether there is complete and satisfactory proof in your minds that the article in question was published by the defendant before the 25th of August 1825.

The jury retired for about half an hour, during which time loud discussion was heard in the court from the jury room.  On returning to the jury box, the foreman addressing the Court, said, "We find a verdict for the plaintiff 1s. damages, each party to pay his own costs.

 

Notes

[1 ] In this case, the editor of the Australian sued the editor of the Sydney Gazette for libel.  For the Gazette's view of the impropriety of this, see Sydney Gazette, 20 March 1827.  See also Sydney Gazette, 29 March 1827; and for the view of the Australian, its issue of 7 April 1827.  The Sydney Gazette reported this case on 3 April 1827, stating that W.C. Wentworth acted for the plaintiff, and Mr Norton for the defendant.

There were several libel actions at this time, including one by the former Attorney General, Saxe Bannister, against Wardell, the editor of the Australian.  See Sydney Gazette, 31 March, 3 April 1827; Australian, 31 March 1827: Monitor, 30 March, and 6 and 20 April 1827.  They led Governor Darling to tell Forbes C.J. that it was urgent to pass laws to restrain the press: Darling to Forbes, 2 April 1827, Mitchell Library, A 748, Reel CY 1226, pp 16, 39.  The results of this are examined in the Newspaper Acts Opinion, 1827.

[2 ] In anticipation of this case, the Sydney Gazette published another article headed "Anticipation" on 10 March 1827.  It noted that the author of the original article was now dead, and that the article being sued on was published two years ago.

[3 ] The Sydney Gazette, 3 April 1827, quoted Forbes C.J. here as saying "whenever there is any evidence to go to a Jury, I am more disposed that should go before them, than to decide the case at once upon a mere point of law."

[4 ] The Sydney Gazette, 3 April 1827, quoted Forbes C.J. as saying: "Why is the law so particular in requiring proof of publication?  Because it is necessary to bring home to the defendant, and purchasing at a shop is prima facie evidence amongst others, from which the inference of publication may be derived."

Published by the Division of Law, Macquarie University