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

Barton v. Parry (No. 1) [1834] NSWSupC 32

libel, qualified privilege - libel, elements of - malicious prosecution - Australian Agricultural Company - damages, nominal - damages, contemptuous

Supreme Court of New South Wales Dowling J., 27 March 1834

Source: Sydney Herald, 3 April 1834[1 ]

Thursday, March 27. - Before His Honor Judge Dowling, and the following special Jury:- Alexander Spark, George Suttor, John Wardle, Edward Jones, Charles Smeathman, George Wentworth, Charles Sims, John Black, Thomas Collins, David Johnson, G. W. Gosling and David Allen, foreman.

Barton v. Sir E. Parry. - This was an action brought to recover compensation for a libel, and malicious prosecution.  Defendant pleaded the general issue.

Damages were laid at £2,000.

Mr. Francis Stephen stated, that the declaration in this case contained two counts; 1st. That the defendant did, on or about the 10th day of March 1833, publish a libel to the serious injury of the plaintiff.

2ndly. - That the defendant on the 29th of March, caused the said plaintiff to be brought before a Magistrate, for a misdemeanor, and caused him to be tried for the same, and on which said trial he was acquitted.

Mr. Foster then stated the case to the Court.  This was an action brought to recover damages for a libel and a malicious prosecution.  The plaintiff was formerly Accountant to the Australian Company, at a salary of £500 per annum; the defendant, Commissioner of the same; the plaintiff in discharging the duties of his situation, had attained a high character for his professional ability.  He was appointed Account and Private Secretary to the Company in May last, and acquired the unqualified approbation of his employers.  In 1829, Sir E. Parry was appointed sole Commissioner, to manage the affairs of the Company at a salary of £2,000 per annum.  A new mode was then adopted, and every thing was introduced in a new official character.  Orders were given generally through the medium of an order book, in which they were entered; and unfortunately in issuing these orders, defendant did not confine himself to making observations on agricultural affairs, but proceeded to make reflection on the plaintiff's conduct.  A system for keeping the accounts had been submitted by plaintiff to defendant who highly approving of it, issued a general order to that effect.  After the general order had been published, Mr. Hall connected with the Company, made a communication to Mr. Barton respecting it, and Mr. Barton submitted this communication to the chief Commissioner, first subjoining an observation of his own; this observation was not made to call forth the angry feelings of the defendant, but was made by plaintiff in his official capacity.  Sir E. Parry, considering that the remark made, assumed a tone of authority, to which plaintiff was not entitled, wrote a letter to him to that effect, to which plaintiff replied and then the General order containing the libellous matter was issued.  Every thing was libellous that was published without justification, and the order in question was, no doubt, issued with a view to degrade the plaintiff in society.  He should therefore call evidence to prove that his client had suffered severely in his character and in his pecuniary affairs, from the publication of the libellous matter in question.  Sir Edward Parry was about to leave these shores with the splendid spoils acquired during his Commissionership; but his client, was differently situated; he came into the Court, almost a broken-hearted man, ruined in his prospects, to seek reparation at the hands of a jury of his countryman, for a gross libel and a malicious prosecution, a prosecution which cannot appear in any other light, when the circumstances are made known.  The prosecution was for an assault on William Farrel, and evidence would be produced to prove that the prosecution emanated from an ill-feeling towards the plaintiff, with an intention of degrading him and bringing him into contempt.  The learned Gentleman then entered at full length into the nature of libel, and proceeded to call the following witnesses.

Edward Murray, carpenter, living in Sydney, deposed, that he served a notice on Sir E. Parry, at Port Stephen on the 14th of this month.  Sir E. Parry was Commissioner for the Australian Company, residing at that place.

Henry Dangar, formerly Surveyor to the Australian Company, knew Mr. Brickwood, Secretary to the Company, as his signature was attached to an agreement produced in Court; he knew the hand-writing well; did not know the signature attached to instructions sent to Mr. Barton.

Cross-examined by Mr. Wentworth. - I knew Mr. Barton well, and had received a copy of the report of his case; Mr. Barton had published more than one publication on the matter, and had received copies of both in 1832; lent one of them to Sir Edward Parry, but did not state any opinion to Sir Edward Parry on the occasion, might have said thus far, it might as well be left alone; `twas a copy of the second publication which he lent to Sir E. Parry, which touched more particularly on the affairs of the Company; many of the documents in the first publication were in the second also; knew the handwriting of Mr. Brickwood, and the signatures to the two papers before the Court were his.  The first general order was then read, and also the others with all correspondence between the parties on the subject.

Henry Dangar was then recalled and deposed, that the libellous matter alluded to Mr. Barton; the order was published at Sir E. Parry's request, and was signed by him; witness took a copy of this order and signed according to direction received; the order book was generally kept at Sir E. Parry's office; the order book was not brought to him on that occasion; the order book was never sealed up, but sometimes tied with a string; it sometimes lay a day or two at the house of the Civil officer to whom it was sent; the book was sent round to all the officers in the custody of a clerk; the book when in his possession lay in his office, to which his family and even visitors had access; the order in reference to Mr. Barton, - was talked of amongst the people high and low, and considered it could not have the effect of causing Mr. Barton to be respected, quite the contrary.

Cross-examined by Dr. Wardell - was formerly in the employ of the Company, and took a copy of the first general order; cannot recollect to whom the order book was transmitted; there existed a difference of opinion respecting those orders, and was of the same opinion as Mr. Barton; never was intimately consulted by Mr. Barton, but had heard him complain of the reprimanding orders of Sir E. Parry; was on the establishment when Dr. Nesbitt acted as Deputy Commissioner, and common report was that things did not go on pleasantly between him and Mr. Barton; Mr. Barton alluded to this fact in a conversation with witness; knew that the passage in the general order, was not a fabrication, but referred to the misunderstanding in question; Mr. Barton confessed that he had made a concession, which he was sorry for, as it had not had the desired effect; considered that Mr. Barton was guided by political feelings when he made the concession; witness considered that the signature to the paper, he held in his hand was Mr. Barton's.

Examined by Mr. Foster - Mr. Barton was a married man and dependant on his situation for support.

Captain R. G. Moffat deposed, that he was a Magistrate at Port Stephens in 1831; had heard of the assault committed on Farrel by Mr. Barton; Sir Edward Parry summitted an account of the circumstance to him; considered it should be settled out of Court; he produced the written statement sent him by Sir E. Parry, and also Farrel's own statement; a summons was issued against Mr. Barton, on Farrel's afterwards making a statement on oath; Mr. Barton did not deny that he had thrown stones at Farrel; witness told Mr. Barton that if he did not enter into any defence, with respect to this statement, he would bind him over to the sessions; Mr. Barton stated, on being arraigned, that he would shoot Farrel or any one else.

John Smith, assigned servant, clerk in the Superintendent Manufacturer's Office, remembered Farrel's applying to him to draw up a statement of an assault, committed on him by Mr. Barton, which he did, and gave it to him; Farrel returned with it about ten minutes after, and said it would not do; witness tore it up, and wrote another, which Farrel stated he was plied to defendant to know if he should draw up the statement in question, and Sir E. Parry said he had no objection; this application was made before the first statement was drawn up; did not know at what time the assault in question took place.

Mr. Garling, Clerk of the Peace, produced an indictment against Mr. Barton for the Quarter Sessions, 1831; it was tired on the 22d July, and a verdict of not guilty was returned; witness did not conduct the prosecution in this case, counsel being retained; Sir E. Parry gave his evidence, and afterwards was in communication with Mr. Therry; considered that Sir. E. Parry gave Mr. Therry assistance by communication, and he was in conversation with him after he had given his evidence; Mr. Therry withdrew the prosecution after confering with Sir Edward Parry; did not join in the conversation nor had he any communication with Sir E. Parry.

Cross-examined by Mr. Wentworth - It is not an unusual thing for Counsel to be employed in that Court; and when witness acted for the prosecutions, it was not unusual to confer with witnesses.

Mr. Roger Therry deposed, that he remembered conducting the case against Barton, on the retainer of Sir E. Parry; discontinued the prosecution; spoke to Sir Edward Parry, who refused to give any suggestion, but left it entirely to witness's discretion; called Sir Edward Parry as a witness; Sir E. Parry was subpoenaed on the part of the defence, but witness considered that his testimony was more for the prosecution, and therefore called him; abandoned the case, considering that it assumed an angry aspect, and the Court ought not to be delayed in a hopeless case.  To an answer from Mr. Norton - Sir E. Parry did not urge on the prosecution, but said that Mr. Barton should have been bound over, and not sent to the Quarter Sessions; considered him decidedly averse to the prosecution.

John Wetherbourne, a ticket-of-leave man, deposed, that he was employed to copy an order of Sir Edward Parry's to send home in 1831; the order in question, was marked with red ink, and copied into a book amongst the orders; Mr. Barton was sent to England, he presumed, by Sir E. Parry's orders; Mr. Barton is not now accountant; with very few exceptions, most of the orders in the book went home; a letter here was received, sent by Sir E. Parry to Captain Moffat, stating the nature of the assault committed by Mr. Barton on Farrel; Farrel's statement was then read, proving that Mr. Barton threatened to fire at him if he annoyed him; Sir E. Parry, in consequence of some misconduct, had withdrawn the assigned servant from Mr. Barton, according to the regulations of the Australian Company, and directed Farrel to make his appearance every day, to enquire if Mr. Barton wanted any dusting or washing, and if he required anything, Farrel was to do it; this Mr. Barton objected to, and on one of those visits, stones were thrown at Farrel by Mr. Barton, and the assault in question was committed.  The depositions of Farrel were here read; also, a latter from Mr. Brickwoods containing the dismissal of Mr. Barton from his situation, on account of communications from Sir E. Parry.

This was the case for the plaintiff.

Dr. Wardell then addressed the Court, and stated that he might have applied for a non-suit, on the grounds that the matter in question was not published from malicious motives, no decided malice had been proved in the transaction.  This action cannot be maintained, as from the evidence adduced, no express malice has been proved.  The learned gentleman then entered fully into the nature of the case before the Court.  The plaintiff's Counsel was bound to produce evidence to prove that the allegations contained in the order were not true.  The learned gentleman had read the portion of the order considered libellous, and contended that not one wrong word was objectionable.  It was very evidence from the evidence of Capt. Moffatt, that such a restriction as the one contained in the order, was necessary to keep the plaintiff within due bounds.  Capt. Moffatt had stated that such was the disrespectful character of plaintiff, and his friends before him, that he felt inclined to commit the whole party.  The act of insubordination which called for the order in question, was not the only one of which Mr. Barton had been guilty.  About six months after Sir E. Parry's arrival, he was absent for some time, and Dr. Nesbit was appointed Deputy in his absence.  On his return, he found that Mr. Barton had committed himself towards Dr. Nesbit, and an investigation took place for two days, and Mr. Barton made a concession to the effect that he had acted indiscreetly on the occasion.  The learned gentleman after addressing the Court for nearly three hours, proceeded to call the witnesses for the defence, when evidence was elicited which proved that an order had been issued at home for the dismissal of plaintiff, before Sir E. Parry published the general order, containing the libellous matter.

His Honor then summed up,[2 ] observing that he felt much rejoiced at seeing such an intelligent and enlightened Jury in the box, and it would be a great relief to him, saving him the trouble of recapitulating the mass of evidence which had been adduced.  There were two points, he said, for their consideration - First, whether the publication was published with an intention to degrade the plaintiff in the eyes of society; if they were satisfied that it was, the plaintiff would be entitled to their verdict; and then the next consideration would be, the amount of damages to be awarded for the injury sustained.[3 ]

The Jury retired for two hours, and on coming into Court, the Foreman asked His Honor, ``if one farthing carried costs?"  His Honor stated that he was not at liberty to explain.[4 ]  The Foreman then requested His Honor to explain what was meant by a malicious libel, this he did; the Jury then after some further consultation, returned a verdict for the plaintiff - damages One Farthing on the first count; the second count having been previously abandoned.



[1 ]This was also reported by the Sydney Gazette, 29 March 1834; Australian, 31 March 1834 (and see 4 April 1834). The trial notes are in Dowling, Proceedings of the Supreme Court, State Records of New South Wales, vol. 94, 2/3277, p. 127.

See also Stephens v. Stephen, 1834; Barton v. Parry (No. 2), 1834.

[2 ] In Dowling, Proceedings of the Supreme Court, State Records of New South Wales, vol. 94, 2/3277, pp 185-191, Dowling J. gave what he called a ``Summary of Summing up":

[p. 185] ``1. Composing the libel is proved, because it is in the handwriting of the Deft.

``2d.The publication is proved, because the other officers copied it by the orders of the Deft. and put their signatures to it as evidence of having copied it.

``3d.Though the libel was intended [p. 186] for the information of the Court as officers only, yet a publication to one is in law as much a publication, as a publication to all the world, for the deft is answerable for the consequences flowing from that one act of publication.

``A libel is a written or printed defamation published maliciously, tending to bring a person into hatred & contempt - to degrade him - to lower him in the estimation of his fellow men - in that to destroy his reputation in society.

``Where the libel itself on the face of it imports malice, the Plf is not bound to prove express malice.

``The deft. in such a case can not be at liberty to prove the truth of the libel, without a plea of justification, - so as to give the Plf notice of what [p. 187] defence the deft relies upon.  I apprehend however, that for the purpose of rebutting the presumption of malice, though he cannot under the general issue give evidence of facts, going to shew the truth of the libel, yet he may shew by general evidence, the occasion of the publication, and the circumstances under which he published, in order to establish that he published it with an honest mind, & with no intention to defame the Plf. [marginal note: `Fairman v Ives 5 Burt. [?] 642. 1 Dowl Reports.']

``With this view alone, did I admit evidence of the circumstances under which the libel was published, -- and the conduct of the deft, to which the alleged libel alludes.

``Most undoubtedly this case cannot be classed with those libels called priveleged communications [p. 188] - such as a petition to the House of Commons - matter stated in a court of justice, in the due course & for the purposes of justice - giving characters to servants - petitioning to a tribunal where the party bonâ fide seeks redress for an injury of which he has to complain & so forth.

``This, if it be a libel, is a voluntary publication, & not emanating from the Deft by force of any obligation on necessity for its publication.

``It is true that the Plf as accountant to the company was under the orders and control of the Defts as Chief Commissioner for Managing the Compas affairs in N.S.W.  If the Plf misbehaved himself, one of two courses were open to the Deft, either to have dismissed him from the Company's service, [p. 189] or privately to have admonished for his misconduct; but he had no right to proclaim, in an order of this kind, his alleged misconduct, and degrade him in the eyes of his fellow servants.  If indeed, the Directors at home, had called upon the Deft to report to them what the character & conduct of the Plf was, & in obedience to that requisition, he made a report even injurious to the Plf, it would fall within the class of priveleged publications, provided the report was made bonâ fide & without malice.  But not so here; because the deft had, no right to nor was he under any necessity, for publishing an order to this affect, if it had a tendency to degrade the Plf.  Still, however, the question remains, whether [p. 190] it was a malicious publication.  The deft no doubt had a right to publish general orders for the information & guidance of the Company's servants; but if under the pretence of issuing such an order, and with a view to an object, foreign from the bonâ fide, exercise of such an authority, he went out of his way, maliciously to hold up the plf to the contempt of his fellow servants, & to degrade him in their estimation, then the order would be actionable.  As malice however, is the gist of cases of this kind, if the Jury can collect from the occasion, and the circumstances under which the libel was published that the deft acted honestly & bonâ fide, and without [p. 191] malicious motive, then the Plf cannot recover.

``That is the question for their determination."

[3 ] The Australian, 31 March 1834, reported that Dowling J. also ``stated that this was not what the law called a privileged communication, as in the case of a master giving a bad character of a servant, when called upon, but he assimilated it in principle to the case (which His Honor proceeded to read) of a tradesman applying to the Secretary at War for relief against an officer whom he charged with swindling him out of his goods.  It was then held that if the tradesman acted bona fide, thinking, tho erroneously, that the Secretary at War could redress him and the circumstances he stated were true, then he might set that up as a defence without pleading a justification - so in the present case, if the Jury thought the conduct of Mr. Barton deserved reprehension, and that Sir Edward Parry only took the ordinary method of administering reproof, without stepping out of his way, or without exceeding the bounds of propriety in so doing, then that would be a defence in the present case."

[4 ] See commentary on this, Australian, 31 March 1834.

Published by the Division of Law, Macquarie University