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

Rodd v. Mansfield (No. 2) (1830) NSW Sel Cas (Dowling) 802; [1830] NSWSupC 80

press freedom, libel, qualified privilege

Supreme Court of New South Wales

Dowling J., 21 September 1830

Source: Dowling, Notes for Select Cases, S.R.N.S.W. 2/3466, p. 30; Proceedings of the Supreme Court , Vol. 146, S.R.N.S.W. 2/3229, p. 36[1] 

A fair bona fide report in a newspaper of proceedings of a court of justice sitting judicially is privileged, even though it may be hurtful to the feelings or injurious to the character of a witness in the cause.

Dowling J. This is an action brought by the plaintiff, a clerk in an attorney's office, against the defendant, the editor, printer and publisher, of The Sydney Gazette, to recover compensation in damages for an alleged libellous publication of and concerning the plaintiff.

The declaration states that before the publication of the matter charged to be libellous, a certain action was depending in this Court between one Robert Montgomery Martin and Ralph Mansfield, on the trial of which cause the plaintiff in this action and one Mr. Wilton were examined on oath and gave evidence as witnesses on behalf of the said Robert Montgomery Martin; whereof the defendant being well aware, and contriving and intending to scandalize and defame the plaintiff, did publish on the 26th June last past, of and concerning the plaintiff and of and concerning the evidence given by him, and of and concerning his conduct when examined as a witness, the following scandalous, false, defamatory and malicious libel, purporting to be part of the address of counsel on the trial of the cause between the said Robert Montgomery Martin and Ralph Mansfield; that is to say " Gentlemen, you have heard the evidence of Mr. Wilton and Mr. Rodd; unwilling witnesses too, as you must have perceived - who, at the tail of their examination dropped their voices and admitted that they had heard of disturbances in reference to the plaintiff, though not with respect to his exorbitant charges. Gentlemen, such a piece of evidence, coming from such witnesses, evidently proves their intention to state anything rather than what they were called upon to state under the sanction of their oaths when put into that box" - meaning thereby that the plaintiff had intended and endeavoured to give unfair and partial testimony on the said trial, and to suppress part of the truth to favour the then plaintiff, Martin.

Gentlemen, in this count of the declaration there is a misdescription in the name of the publication wherein the alleged libellous matter appears, it being described as The Sydney Gazette and New South Advertiser , leaving out the word Wales ; but there are still two other counts setting out the same matter, omitting the name of the newspaper, and merely charging the defendant with having printed and published the paragraph complained of. The second count recites the same matter, only varying the innuendo, and alleging it to mean that the plaintiff intended and endeavoured to give unfair and partial testimony; and the third count sets forth the naked matter without any innuendo to give it a point or meaning, but leaving it for the jury to put their own interpretation upon it. To this declaration the defendant has pleaded, first, not guilty; and secondly, has given notice that he intends to prove on the trial, assuming the matter laid in the declaration to have been published by him, that he was justified in so doing, as it formed part of a fair and true account of what had taken place in an open Court, and was an impartial report, according to the tenor of counsel's remarks, on the trial referred to. [Dowling J. read over the whole of the evidence to the jury, and continued:]

Gentlemen, it now falls to my lot to direct you as to the course you are to pursue in deciding on this case, according to the law as I find it laid down. It has been stated to you that the object in bringing this action is in order to vindicate the plaintiff's character, from unwarrantable aspersions, which had been cast upon it by the publication complained of. Such actions as this ought not to be brought on slight grounds, and it will be for you to ask yourselves, by and by, whether this is such an action as ought to have come before you. The case, however, having been brought into Court, it is our duty to administer the law impartially between the parties as we find it laid down for our guidance. Gentlemen, every man who lives in society must feel the vast importance of having the proceedings in courts of justice fully, fairly and impartially reported. It is a maxim of our constitution that every man is supposed to know the law; and without the benefit which is derived from the privilege of communicating the proceedings of courts of justice to the public, it is manifest that a large proportion of the people must remain wholly ignorant of their relative duties to society. Law reports, therefore, fairly given, are no doubt of great benefit to the community, and I will now proceed to state to you what has been held to be privileged in publications of this nature. It is held to be unlawful to publish ex parte proceedings taken before magistrates or at coroners' inquests, previous to committing a man for trial, or holding him to bail for an offence with which he is charged, the tendency of such a publication being to prejudice the minds of jurymen against the accused, and to deprive him of a fair trial.

The same reason, however, does not apply to the publication of proceedings in an open court, where every man is supposed to be present, and where the whole case is impartially considered and decided. In the case of Curry v. Walter (1796) [ Curry v. Walter (1796) 1 Bos. & Pul. 525, 126 E.R. 1046, 1 Esp. 456, 170 E.R. 418 ], which was an action against the proprietor of the Times , for publishing a libel which consisted in merely stating a speech made by counsel on a motion for leave to file a criminal information, Lord Chief Justice Eyre, who tried the cause, ruled that it was not a libel, nor the subject of an action, it being a true account of what had passed in court; and in this opinion the Court of Common Pleas afterwards, on a motion for a new trial, concurred though some of the judges doubted whether the defendant could avail himself of that defence on the general issue. This decision was also recognized and adopted by Lawrence J. in the case of the R. v. Wright (1799) [ R. v. Wright (1799) 8 T.R. 293, 101 E.R. 1396 ] who approved of the doctrine of the importance of reports of judicial proceedings; and also by another judge, not less celebrated for his regard for the rights of the subject, than for upholding the just prerogatives of the crown (Lord Ellenborough), who, in the case of the R. v. Fisher (1811) said that trials at law fairly reported, although they may occasionally prove injurious to individuals, have been holden to be privileged; let them continue so privileged. The benefit they produce is great and permanent, and the evil that arises from them is rare and incidental. I must say, however, gentlemen, that the authority of the case of Curry v. Walter has been shaken, in some degree, by a more recent case, - that of Duncan v. Thwaites (1824) [ Duncan v. Thwaites (1824) 3 B. & C. 556, 107 E.R. 840; R. v. Fisher (1811) 2 Camp. 563, 170 E.R. 1253 ] in which the present Chief Justice Abbott, speaking of the case of Curry v. Walter , says that the doctrine laid down by Chief Justice Eyre was of great weight in itself, and derived additional authority from the subsequent sanction of Lawrence J., still it should not be thence inferred that the publication of ex parte proceedings even in the courts above was to be allowed by law.

Gentlemen, the case of Duncan v. Thwaites was founded on a publication of an ex parte proceedings before the magistrates at a police office, not of a court where the proceedings were final; and I can find no dictum adverse to the publication of fair, honest and bona fide accounts of the proceedings of courts of justice - nothing to militate against the principle, that bona fide reports, without malice in the publisher, are justifiable in law. Gentlemen, the questions then for your consideration are first, is this publication libellous, without regard to whether it be justifiable in point of law. If you are satisfied that the interpretation put upon the paragraph by the witnesses who have been called for the plaintiff is the true interpretation, then I must say that it is undoubtedly libellous. But gentlemen, then comes the second question, namely, has the defendant made out his justification as he has undertaken to do? Is this publication, taken altogether, a fair and candid, although it may be an imperfect report?

Gentlemen, although a detached passage taken from a detailed report of a judicial proceeding may contain slanderous expressions, still it is competent for you to lay the whole publication before you and to say whether it is altogether a fair, bona fide, candid report without malice, even though it should be in some respects imperfect. The publisher of a newspaper is not bound to state every thing that passes in a court of justice: to do so would sometimes require a sheet of paper as large as Salisbury Plains. It is sufficient if he gives a fair and candid account of the matter at issue without any undue motive to prejudice either party. It is for you to say whether, taken altogether, this is such a report, even though it may be in some respects imperfect, and contain slanderous matter in a detached passage. In cases of this kind we are not to criticise too minutely where a man fairly and honourably does his duty, without any improper motives. Gentlemen, this is charged to be a malicious libel, and you must be satisfied that it is so before you will be warranted in finding a verdict for the plaintiff. Assuming the words to be libellous, and that you do not consider the defendant has made out the justification he has pleaded, it will be your duty to find a verdict for the plaintiff, with such damages as the nature of the case deserves; if, on the other hand, you should be of opinion that this publication is a fair, candid, bona fide report without malice, then your verdict ought, under all the circumstances of the case to be for the defendant.

The jury retired for a few minutes, and returned a verdict for the defendant. (Counsel for the plaintiff, Mr. Foster; for the defendant, Dr. Wardell and Mr. Allen.)


[1] See also Rodd v. Mansfield, 1830

Published by the Division of Law, Macquarie University