Skip to Content

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

Stephen v Dixon (1830) NSW Sel Cas (Dowling) 739; [1830] NSWSupC 22

slander, legal profession, slander of, damages, assessment of

Supreme Court of New South Wales

Dowling J., 22 March 1830

Source: Australian, 24 March 1830[1 ]

 

SUPREME COURT - Monday.

ACTION FOR SLANDER.

Mr. Justice Dowling was the presiding Judge today. Messrs. Bettington and Donnisson were the assessors.

STEPHEN v. DIXON.

This was an action for slanderous expressions, alleged to have been used by the defendant.  Mr. Foster appeared for the plaintiff, and Mr. Wentworth for the defendant.

It appeared in evidence for the plaintiff that certain premises, in which a man named Holding resided, had been disposed of by him to the defendant some six years since, during which period no rent had been claimed by defendant, but on the death of Holding, an execution was put into the house by Mr. Lawson, when defendant also put in his bailiff for rent; about this time it was represented by the witnesses for the plaintiff, that Mr. Dixon came to the house of the widow Holding, and said to her, when he was informed she had employed the plaintiff as her solicitor - had you gone to (So and so.) you would have obtained some lenity, they are gentlemen, but to go to that dd scoundrel (naming the plaintiff), he will only pump you out of your money, and deceive you, and pick your pocket,"

Evidence being called to this effect, and that the plaintiff had long been, and then was a practitioner in the Supreme Court, in extensive practice,

On the part of the defendant two witnesses were called, who described their being present when defendant was said to have used the words ascribed to him by witnesses for the plaintiff, but that they did not hear the name of plaintiff mentioned, or any express reference made to him.  The premises held by the widow Holding, it would also appear had been purchased several years since, by the defendant, who permitted Holding's widow to inhabit them till the time that gave rise to the present action, without making any demand upon her for rent.

Mr. Justice Dowling laid down three points for the consideration of the assessors.  1st. As to whether or no, some of the words set forth in the declaration were proved to have been used.  2dly, Whether they had been applied to Mr. Stephen in his professional character as a Barrister and acting Attorney, and 3dly. In what sense, in what spirit, and with what intention the words were uttered.[2 ]

The assessors found a verdict for the plaintiff, the Judge saying that they considered the words to have been intemperately and unadvisably used, and not with any intention of reflecting on the character of Mr. Stephen.  For this reason they considered the justice of the case would be satisfied by giving the defendant 40s.  Damages.

 

Notes

[1 ] See also Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 33, Archives Office of New South Wales, 2/3216, p. 114; and Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, p. 295.  The Select Cases version began with the following marginal note: "In an action by an attorney for slander of his professional character Dowling J refused to receive general evidence of the Plaintiffs malpractices, and of his bad character as an attorney."  Both versions recorded the following as the words complained of: "Had you gone to Dr Wardell Mr Norton or Mr Wentworth they are gentlemen but to go to that damned scoundrel Sydney Stephen he will only pump you out of your money deceive you and pick your pocket".

[2 ] Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 33, Archives Office of New South Wales, 2/3216, p.133 recorded the following note by Dowling J.: ``NB In this case the Plf's counsel proposed to offer general evidence of the Plf's malpractices & of his bad character as an attorney, but on the authority of Jones v Stephens 11 Price 235 I would not suffer such evidence to be received, as putting the whole of the Plfs professional life in issue, for which he would be wholly unprepared."

Published by the Division of Law, Macquarie University