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

Poignand v Kentish [1832] NSWSupC 20

legal practitioners, liability for negligence - civil libel]

Supreme Court of New South Wales

Forbes C.J., 9 March 1832

Source: Sydney Gazette, 17 March 1832[1 ]

 

Poignand v. Kentish

This was an action for libel, brought be George Louis Poignand, Esq., as Attorney, &c. of the Supreme Court, against Nathaniel Liscombe Kentish, Esq. The damages were laid at £500. The defendant pleaded the general issue, and also gave notice that he intended to prove, on the trial, the truth of the alleged libellous matter.

As soon as the case was called on, the defendant in person rose and addressed the Bench to the following effect. -

I rise to take an objection in limine, and humbly move the Court to stay proceedings, and to appoint a day for the trial of this case by a special Jury, and before the three Judges, upon the grounds that, as as [sic] the Court would doubtless wish to avert the possibility of any imputation on its proceedings - would wish the parties themselves, and especially the public, to be convinces of the impartiality of its proceedings - of the Court itself being disinterested as to the issue tried by and before it ; and as in the very case referred to in the alleged libel, the Judge who presided on that trial is alleged to have been a party interested, which very interest or partiality gave rise to the alleged libel now to be tried, it is particularly desirable that no such imputation should be now permitted to arise, I therefore pray that it may be tried before the three Judges, instead of one, although that one be a Judge as thoroughly unexceptionable in my estimation as mortal man can be; and also before a Jury, being a more popular and satisfactory tribunal, and less questionable or capable of being suspected of any bias, than that of two Assessors whatever. And as the defendant has intimated that he would not object to a Jury, but "he cannot, as the Rules of the Court must be complied with," and as many professional gentlemen in Court know ; and I have been told by several of them, that it is not only competent to the Court to permit, but that, as a matter of course, it would allow the case to be tried by a Jury, upon the consent of the parties, I crave the permission and interference of Court, to protect me from being deprived of my right of trial by Jury, by a subterfuge on the part of the plaintiff that he would consent, but that it would he irregular in the Court to permit it. It had ever been my intention to have both this cause, and my late action against Mr. Norton, tried by a Jury, but not being aware that it was necessary to move the Court for a Jury before the Term, I did not do so ; neither did the learned gentleman who so tenaciously and pertinaciously would avow himself and insist on acting as my attorney.

The learned Judge said he was not then in a condition to entertain the motion, which should have been made in full Court. The case must therefore proceed, unless the other side acceded to its being postponed.

Mr. Foster said, if he really saw the slightest benefit that could arise to the defendant from a Jury trial, he would consent to the case going over ; but, under all the circumstances, at this stage of the proceedings, he must press the case.

Mr. Foster stated the case to the Court. The present action, said the learned gentleman, was brought against the defendant for having wrongfully and maliciously composed, printed, and published a libel of and concerning the plaintiff, in his capacity of an attorney of the Supreme Court. The defendant had pleaded the general issue, and had also filed a notice, according to a rule of Court enabling him to do so, that, on the trial, he intended to justify, by proving the truth of that which he had asserted; so that the defendant, in point of fact, came before the Court, not to allegge [sic] that he had published this libel inadvertently, or through an angry feeling towards the defendant at the time, but that, after full deliberation, he was prepared to justify. The plaintiff was an attorney of the Supreme Court: the defendant was a gentleman not unknown to the Court; and, if pretty constant attendance there could give him a knowledge of the practice of the Court, no one could be better qualified for the task he had that day undertaken - namely, that of defending his own cause in person. The circumstances out of which this libellous publication arose were these :- the defendant had purchased a horse of a person named Bryant, for £12 6s., obtaining a warranty of soundness. The animal, however, turned out not to be sound, and the defendant stopped the payment of a check on the Bank of Australia, for the purchase-money. At action was brought by Bryant ; and, although the defendant did not, on that occasion, require the attendance of the three Judges ; he had, two attorneys, and his (Mr. Foster's) client was one of them. The defendant had previously waited no [sic] Mr. Norton ;but having merely intimated to that gentleman that an action was likely to be brought, he did not appear, and judgment went against Mr. Kentish by default. Some time after this, the plaintiff and the defendant happening to meet in the coach, coming from Parramatta to Sydney, formed an acquaintance, and the defendant subsequently called at the office of the plaintiff, whom he informed of what he considered Mr. Norton's neglect; and after a long consultation on the very importance case of Bryant and Kentish - now become as notorious in that Court as that ofPeebles and Plainstances - the plaintiff informed him that he had no cause of action against Mr. Norton, or words to that effect. However, in consequence of the defendant's urgent solicitation, the plaintiff was induced to call on Mr. Norton, and to perform many other acts towards bring the case to issue. At this stage of the business, the defendant intimated to the plaintiff, that although he required the assistance of an attorney, to prevent falling into informalities, he intended himself to advocate the cause in Court. The plaintiff, however, not wishing to have any thing to do with a case conducted by the defendant, refused to act further in the business, and sent in a bill of £3 19s. 8 d. for the work he had performed ; and he (Mr. Foster) would say, that the very first charge in that bill, namely, that of one guinea, for the two or three hours' consultation with the defendant, when he was advised uot [sic] to proceed farther - was worth five times the sum to the defendant, had he acted upon the advice the plaintiff then gave him. He, however, would go on with the action against Mr. Norton ; and, certainly, a more absurd action never was brought into any Court. The plaintiff furnished his bill of costs, which being set altogether at defiance by the defendant, the matter was brought before the Commissioner of the Curt of Requests, after the lapse of a month, when a verdict of £2 18s. 8d. was entered for the plaintiff ; the Commissioner (for what reason he (Mr. F.) certainly did not see considering it equitable towards the defendant to take off one guinea from the plaintiff's bill. The defendant felt indignant at this decision; and, accordingly, he made such observations on the whole case, and especially respecting the plaintiff, in a pamphlet recently published by the defendant, as had caused the plaintiff to bring the present action. The manner, however, in which this libel was published, he would contend, must have the effect of considerably aggravating the amount of damages the Court should be disposed to give. The statement was sent to each of the three papers then published in the Colony, the conductors of which very properly refused to give it insertion. Finding himself defeated in obtaining publicity through the public journals, he used other means of obtaining his object - means which, the Court would see, in the highest degree aggravated the offence which he then came forward to justify. Some time ago a petition to the King, on the subject of the land regulations, was in the course of preparation. On that occasion the defendant through proper to publish a pamphlet containing his views of the matter under consideration; and, as a "rider" to this very pamphlet was this libellous matter introduced. On its coming to the notice of the plaintiff, he immediately communicated with the printer, who seeing the dangerous consequences which he had unwittingly incurred, wrote to the book-sellers, and to the various postmasters, to stop the sale, and, accordingly, no more were sold. However, the plaintiff, although finding that no more would be circulated, and having his mind fully called to the danger of the publication, caused an advertisement to be some time after inserted in the Herald, a paper then but recently established, announcing the publication of his pamphlet, and stating, as the book-sellers had refused to circulate any more, that it might be had at the author's residence, at Parramatta, or in the public market-place, at Sydney, on market-days ; - he (Mr. F.) had been informed, that the defendant had actually attended himself in the market to assist in the dispersion of the libellous production. These were the circumstances under which this publication was put forth, and he put it to the Court to say if any thing could be more aggravated ? Had the defendant, when warned of the character of the work, refrained, as the printer had done, from circulating it any more, it was very probable that the plaintiff would not have proceeded farther. Not having done so, however, it was the duty of the Court to award the most exemplary damages for a libel which it was impossible the defendant could justify, and which his attempt to do so rendered a still greater aggravation. The learned gentlemen then read the alleged libellous matter, as follows ; commenting upon it as he proceeded : -

the Sydney Gazette.

To the Editor of           the Sydney Monitor.

the Australian.

 

      Sir,

If you should think the following case of sufficient public interest, as illustrative of the power vested in the sole Commission of the Court of Requests - of the tendency of that Court to promote exorbitant and unjust claims, unless they be received with great caution, particularly where the defendant is a person of respectability - if the opportunities afforded pettifogging attornies of swindling their unfortunate clients ; and of the unfitness of any person, however great his abilities - however excellent his general character - however pure his intentions, to act as arbitrator between a stranger and his own friend or professional colleague - or between a stranger and his own foe (in either of which cases, it is clear that he cannot bring to the consideration of the subject that impartiality which is the chief and indispensible [sic] qualification in an arbitrator, and especially in one against whose verdict there is no appeal) you may insert it.

Although I have no appeal from Mr. Therry, I wish this statement or report of the case to be considered an appeal to that gentleman, who, I am disposed to believe, may possess sufficient magnanimity to admit his fallibility, and to reverse his former judgment, if, upon reconsideration, he shall be satisfied (as I believe many persons in the Court were, and I think the reader will be) that Justice requires it

(Here follows a report of the case of Poignard [sic]v Kentish, tried in the Court of Requests.)

Mr. Editor, - In conclusion, I beg to observe, that neither in honour, nor (until the contrary is explained shall I believe) in law, can an attorney recover payment of charges for services which, by his own act of relinquishing a cause, he rendered unavailable and worse than useless to his client. But the first item I have explained ; the second, for comparing my two letter, (one of them only six lines) with their copies, both ready written, is iniquitous ; they required no "considering" on his part whatever - nothing but merely to send his clerk or fort-boy with them ; the fourth and fifth charges are for attendances unnecessary, and not only unauthorized, but contrary to his own recommendation, and my express directions "not to see Mr. Norton at all ;" the fifth item, which the Commissioner struck out, is falsi, as Poignand never attended me at all, nor I him, except as I have stated, and is made the medium of conveying a personal insult, by asserting that, "to save expense," I proposed to appear in person ; whereas my real reason was this, that I found it unsafeto consent to his appearing against an influential member of his profession, to whom I had then understood he was under considerable restraint; the last charge is exceedingly improper, to say the least; he never sent a messenger to me in his life; and the only letter he ever received from me (viz. With the packet containing the two letters he was to serve and their copies) was left at his door, without any charge for delivery by a servant of mine.

If, Sir, a manly highwayman or bushranger met me on the road, in defiance of the law, and robbed me of £3 19s. 8d., he would be liable to be hanged ; but, Sir, if an attorney, by means of the law, rob me of this sum - if he whose duty it is to maintain my rights and interests, an whom I am to employ and pay for doing so - if he sacrifice his client, or at least neglect his business (which is something like it) and them insult and plunder him ; is it to be borne that he is to be supported and justified by the Bench in doing so ; and that occasion is to be taken from such circumstance, even to applaud an Attorney, who, I have no hesitation in saying it is my firm opinion, would in England, and very properly be struck off the Rolls ? as many, for conduct in my judgment much less heinous, have been.

I am, Sir,

your humble and obedient Servant.

NAT. LIPSCOMBE KENTISH.

The defendant, as a witness to prove the publication, was about to be put into the witness box, at once admitted it.

Mr. Frederick Michael Stokes, one of the proprietors of the Sydney Herald, said the advertisement to which his attention was directed, was inserted by the defendant.

Mr. Arthur Hill said, I printed this pamphlet for the defendant ; I afterwards wrote to Moffit, the book-seller, as well as to other persons, who had them to sell, to stop the sale ; the plaintiff said, if I did so, he would not proceed against me.

Cross-examined by the defendant - I remember you altered a sentence in the proof the last paragraph, for fear any thing libellous should appear.

Re-examined - I was served with process by the plaintiff, but he afterwards dropped it, and charged me no costs.

Roger Therry, Esq., Commissioner of the Court of Requests said, I know the plaintiff ; he is an attorney of this Court ; I remember the case of Poignand against Kentish, tried before me in the Court of Requests ; I have read the report of that case in this pamphlet ; it certainly is not a correct report ; it is reported favourably to Mr. Kentish, and unfavourably to Mr. Poignand, and quite remote from the case as I heard it ; a great pat of the evidence given on behalf of the plaintiff is suppressed ; the evidence on which I gave judgment is suppressed ; I saw nothing whatever of impropriety in the plaintiff's conduct in the case before me ; I deducted a guinea from the plaintiff's bill, as the item did not appear to me to form part of the original contract.

Cross-examined by the defendant - I certainly do not now recollect the names of all the witnesses who were examined ;there was evidence to satisfy me that plaintiff performed the work for which he charged.

Re-examined - I have no doubt of the applicability of this publication to the defendant ; the paragraph beginning, "If an honest highwayman &c." I consider, from the whole context, to apply clearly to the plaintiff ; it means that the plaintiff ; it means that the plaintiff is as bad as a highwayman, and I as an accessory after the fact; [laughter]

This was the plaintiff's case.

Mr. Kentish then read a most voluminous and ingenious written address to the Jury, and extreme length of which precludes the possibility of comprising it within newspaper limits, or, indeed, of giving even a satisfactory outline of it. He took a general review of the doctrine of the law of libel - contended that, in the present case, the declaration could not be supported, inasmuch as it averred malice, and an attempt to prove malice had not even been made - that the publication itself was not libellous, inasmuch as it was a fair and impartial report of a public proceeding, had, therefore, a privileged publication, on the authority of Lord Ellenborough and other learned Judges - and protested, several times, in the most solemn manner, that the plaintiff had never done one item of the business for which he brought his action in the Court of Requests, save, that of causing two letters to be delivered, which the postman would have done for two-pence.

Mr. G. R. Nichols, clerk to Messrs. Moore, and Mr. Livingston, clerk to the plaintiff, were then called on behalf of the defendant, but their testomony [sic] served only to corroborate the evidence for the plaintiff. Mr. Nichols said the plaintiff's charges were reasonable, supposing the work to have been performed; and added, on cross-examination that he would not have such an article published concerning him for £10 0. [sic] Mr. Livingstone said he was examined before the Commissioner in the Court of Requests, and proved the word charged in the bill of costs to have been done; but that his evidence was omitted by the defendant in his publication purporting to be a report of the trial.

Mr. Foster replied to evidence.

The Chief Justice summed up, and, after stating the law, as applicable to the case, expressed a regret that it had not been arranged, if possible, out of Court. His Honor thought it might be fairly assumed, from the whole tenor of the defence, that the defendant laboured under a strong impression that he had suffered great wrongs from the plaintiff. No ground whatever had been made to appear for intertaining [sic] such an impression ; but as it was quite evident the defendant did labour under it, although it formed no part of the case, he thought it was a circumstance which might be taken into consideration by the Assessors in awarding damages.

The Assessors found a verdict for the plaintiff, damages £50.

[Every man is of importance to himself. We are sorry, therefore, that our limitted [sic] space would not allow us to publish the address of Mr. Kentish in this case, with which he has kiddly [sic] favoured us. Even had we not been so pressed for room, we could hardly have felt ourselves justified in inserting so voluminous a production, to the inevitable exclusion of the greater portion of our local and miscellaneous matter. Reports of trials for libel have become by no means rarities in our community, small as it is; and we do not consider that the case of Poignand against Kentish is of that public interest, which should induce us to detail it at greater length in a future number. - Ed.]

 

Notes

[1 ] See also Australian, 16 March 1832; Sydney Herald, 12 March 1832.  The Australian also published a comment on the case on 16 March 1832.  On the litigation against Norton, see Kentish v. Norton, 1832, and on that against Bryant, see Bryant v. Kentish, 1832.

Published by the Division of Law, Macquarie University