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

Ex parte Ebden, in re Lhotsky [1835] NSWSupC 86

criminal libel

Supreme Court of New South Wales

In banco, 24 October 1835

Source: Sydney Herald, 26 October 1835[ 1]

 

Exparte C. H. Ebden, Esq., J. P. - In this case Mr. Foster moved for a rule calling upon Dr. John Lhotsky, to shew cause why a criminal information should not be filed against him for a libel published in the Sydney Gazette of the 15th October, and in the Sydney Monitor of the 8th August last, reflecting on the character of the applicant, insinuating that he, the applicant, who had undertaken the agency of his affairs, refused to render him an account; complainant, therefore, felt it necessary to institute the present proceedings, to restrain the defendant from pursuing this course, and therefore submitted his account to the Court, shewing a balance against the defendant of £105 10s. 2d., the correctness of the charges of the said account having been certified by Mr. Richard Jones and Mr. William Dawes, thus shewing how little cause the said J. Lhotsky had for complaint.  The libellous matter, being a letter in each of the above mentioned Journals, bearing the signature of the defendant, was then read to the Court, together with the affidavits of the editor and assistant-editor of the Sydney Gazette andMonitor respectively, in proof of the authorship of the defendant.  The Court was of opinion that his was not a case which called for its interference, though at the same time the Judges one and all felt it their duty to express that they deemed it highly discreditable to the author, and rendered an apology to the respectable individual to whom the observations, set forth in that letter, applied, as a measure strictly called for.  The Court, in disposing of this motion, took an opportunity to express its sense of the impropriety of Public Journals lending their columns to the publication of matter, such as that before the Court, which could not interest the Public, but had for their ostensible object the gratification of personal ill-feeling, thereby perverting to the worst of purposes, an engine placed by providence in the hands of man, for the purpose of disseminating knowledge and virtue, and protected by the laws for the prosecution of such laudable objects.  As the object of the applicant was no doubt accomplished by the step already taken, and as the matter before the Court did not exhibit sufficient grounds upon which the Court would feel called upon to establish a case of libel, the application must be dismissed, recommending the defendant to make an honorable apology to the complainant, for the unwarrantable attack that had been made. - Application dismissed.

 

Notes

[1 ] See also Australian, 27 October 1835; Sydney Gazette, 27 October 1835.  The report in the Gazette concluded with what is, in effect, an apology to Ebden.

Published by the Division of Law, Macquarie University