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

Cory v Munro [1835] NSWSupC 69

libel, apology - libel, assessment of damages - damages, assessment of, libel - Lang, John Dunmore - convict evidence

Supreme Court of New South Wales

Dowling J., 17 September 1835

Source: Australian, 19 September 1835[1 ]

Cory v. Munro. - This was an action brought by the plaintiff, Mr. Edward Crossley Cory, a respectable settler on the Paterson's River, against the defendant, Mr. Kenneth Munro, Proprietor, Editor, Printer, and Publisher of the Colonist newspaper, for a libel published in that journal of the 9th April, of and concerning the plaintiff.  The defendant having suffered judgment to go by default, the plaintiff's Counsel, Messrs. Wentworth and Foster, now moved the Court to assess damages.  Mr. Wentworth then spoke at some length on the nature of the libellous article, the publication of which arose out of the following circumstances.  The plaintiff having occasion to be absent from his estate for several weeks in the months of April and May last, a report found circulation among his neighbours that he was implicated in a charge of cattle stealing, and this report was in some degree strengthened by the fact of a search-warrant, having being granted by John Wighton, Esq. J. P. to search the plaintiff's premises.  These circumstances were adverted to in the Colonist newspaper of the 9th April, but the facts, which were put forth as having been furnished by a correspondent, were grossly misrepresented.  It was stated not as matter of report, but as matter of fact, that an old and respectable settler on the banks of the Paterson's river, was connected with a charge of cattle stealing - that his premises had been searched, and a number of hides found in his store with the brands cut out - that the pieces so cut out had been afterwards found in the river - and that a warrant had been issued for the apprehension of the accused.  The report was accompanied by certain editorial remarks of a highly offensive and slanderous nature, out of which the present action arose.  The report circulated to the prejudice of the plaintiff's character, subsequently turned out to be wholly unfounded - an assigned convict servant of the plaintiffs' was afterwards tried, convicted, and sentenced to transportation for the same offence which he had sought to affix on his master, the plaintiff.  Mr. Wentworth adverted to the author of the libellous article, who he alleged was not the defendant before the court, a mere man of straw, but that the principal behind the curtain, the Rev. Dr. Lang was the slanderer, and the correspondent alluded to in the Colonist, as having furnished the intelligence, was the Rev. Dr.'s brother, a settler at Hunter's River.  Of these assertions, however, nothing was offered in evidence.

The Solicitor General then addressed the Court, on the part of the defendant, in mitigation of damages.  The Learned Gentleman put in two subsequent numbers of the Colonist, namely, those of the 7th and 21st of May - the first of which he contended contained an ample apology for the paragraph complained of.  The defendant had merely made use of his privilege as an Editor of a newspaper to publish the particulars of passing events, and as soon as he heard that the information he had received was erroneous, he contradicted it; -- and in doing so, had made every amends for whatever injury the plaintiff's character might have suffered in the estimation of his friends, from the obnoxious article being published.  The Learned Gentleman also stated that this apology was perfectly voluntary, inasmuch as it was published on the 7th of May, and his client had received no notice of action until a week after that time.  The Solicitor General therefore contended, that the plaintiff would have rested perfectly satisfied with the apology which was thus made, had not this chance of injuring, and perhaps destroying the Colonist, been eagerly laid held of by a party behind the scenes, who had winced under the superior lash of that talented newspaper, which had done more to raise the tone of society in New South Wales, than any other measure yet introduced into it.

Mr. George William Newcombe, a clerk in the Colonial Secretary's Office, was called to prove the publication of the Colonist newspaper of the 7th and 21st May, and that the Editor, Proprietor, &c. thereof, was the same as stated in the imprint, namely, the defendant in this action.  These two numbers of the Colonist were then put in as evidence, and a paragraph in that of the 7th, commencing with the words ``we are happy to find," - and another in that of the 21st, headed ``our libel case," were read by the proper office of the Court.  Mr. Newcombe was then cross-examined by Mr. Foster for the plaintiff, who endeavoured to prove the publication of the Colonist of the 10th September, from one of that date which happened to be in Court, but the Solicitor General on the other side, objected to its being given in evidence, unless it were proved in the usual way; namely, by producing the identical newspaper, signed by the Editor, and filed in the Colonial Secretary's Office, under the provision of the Act of Council.  After much argument on both sides, his Honor decided against the production of the paper in such a way.  He regretted to say, that he had tried a vast many cases of libel since he had been in the Colony, and the invariable practice had been to prove publication by a production of the copy filed in the Colonial Secretary's Office.  The same strictness ought to be observed with the one side as the other, and he was therefore bound to refuse the evidence.  The Solicitor General then wished to offer in evidence the existence of such a report at the time of its publication in the Colonist - but the Learned Judged over-ruled such a line of exculpatory evidence.  It was not competent to say that because oral slander had been committed, it was justifiable to print and publish it.  The Solicitor General then concluded his case, denying that Mr. Lang was the informant alluded to, and reprobating the improper use that had been made of Dr. Lang's name.

Mr. Wentworth replied that the line of defence set up, was a continuation of that slander and vituperation which was the ground work of the present action; and the whole of it went to contradict the sincerity of that apology which was so strongly relied upon, as having been voluntarily and sufficiently offered.  With respect to the assertion that the plaintiff had not given notice of action until a week after the publication of the apology, the fact was that the plaintiff was absent from his home until that time, when he gave immediate instructions to Mr. Norton, his solicitor; and it certainly was not difficult for the man of straw in this case to foresee the consequence which would be the result of the unfounded report put forth to the world in theColonist, which he thought he could evade by resorting to the cowardly purpose of tendering an insincere and insufficient apology.  It would indeed require a somewhat blinder person than even the nominal editor of the Colonist, not to foresee that this would be the result.  Then with respect to the improper use which had been made of the Rev. Dr. Lang's name, the articles put in by the other side, afforded abundant proof of his identity as the author of the slander.  It goes on to state at the bottom of one of these articles that the author of the editorial remarks alluded to, is both willing and able to defend himself from the charge without feeing either Barrister or Attorney; and that as the plaintiff doubtless wishes to put the saddle on the right horse, the name of the author is ready to be given up.  The Reverend writer of course wished to be presented with an opportunity of haranguing the Supreme Court a second time, and the learned Solicitor General would not then have his fee.  He would then have gone on further towards repeating the slander he had propagated, than in attempting to establish it by a side wind, as the instructions given to the learned gentleman who had last addressed them, doubtless had caused him to do.  Then as to the sincerity of the apology itself, he would draw the attention of the assessors to the expressions made use of in the apology.  The writer speaks of these individuals, including the plaintiff, as unhappy individuals, just as if they were not only not unconvicted of offence, but as if they had been tried, convicted, condemned, and like malefactors ordered for execution at Newgate or elsewhere, were just waiting to be turned off.  He, the learned gentleman would state, that there was more low cant in the Colonist, than in any newspaper in the colony.  The writer goes on to state that these ``unhappy individuals though they came out free, yet from their evil communications, that they had become ten-fold worse than the convict gangs around them."  And then he proceeds to say of these, that the comments are our own; that is, not of the man of straw before the court, but of the principal behind the curtain.  He, the learned gentleman would state, that the respectability of the plaintiff, was as great as that of the reverend slanderer himself behind the curtain - of this reputed habitual slanderer both of the living and of the dead.  Mr. Wentworth concluded an able address, by stating that the whole of the defence offered was an aggravation of the slander, and was an aggravation of the injury inflicted by it.

The learned Judge then put the case to the Assessors.  His Honor directed them to weigh deliberately the facts submitted to them, and cautioned them against allowing their judgement to be swayed by any thing which did not appear in evidence.  His Honor also directed the Assessors to read the whole of the libellous matter, and to bear in mind that the facts were stated from mere rumour - that the defendant by not replying to the declaration, admitted the application of them to the plaintiff - and that upon the whole of the proceedings the plaintiff was admitted to be a person of respectability.  The learned Judge then stated the distinction between oral and written slander, and put it to the Assessors, whether the defendant as a public trustee for conveying information of passing events, was not bound to have them well authenticated before giving them to the world; the more especially when relating to such respectable persons as the plaintiff.  Their attention had been also drawn to the alleged hypocritical pity of the defendant, but the main question for them to try was, whether the report complained of was an honest, fair boná fide publication?  There was no proof before them of Dr. Lang, or Mr. Lang being concerned in this question, nor, on the other hand, was there any proof adduced of this proceeding having been instituted to destroy the Colonist newspaper, nor any thing to militate against the supposition, that the action was brought wholly for the vindication of the plaintiff's character.

The Assessors returned a verdict for the plaintiff, damages £75.



[1 ] See also Sydney Herald, 24 September 1835; Australian, 18 September 1835.  For commentary, see Australian, 29 September 1835 (on convict evidence, comparing it with the evidence of slaves).

Published by the Division of Law, Macquarie University