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

R v Kentish [1835] NSWSupC 14

criminal libel - press freedom - law reporting - striking off legal practitioners - Sydney Times - vexatious litigation

Supreme Court of New South Wales

In banco, 21 February 1835

Source: Sydney Herald, 23 February 1835[1 ]

Exparte Slade. - In this case a rule nisi was obtained on Saturday last, returnable this day, calling upon N. L. Kentish, Editor of the Sydney Times, to shew cause why a criminal information should not be filed against him for an alleged libel published in that Journal of the 16th January last.  Mr. Kentish now appeared in person to shew cause against the rule.  He could not perhaps advance a better advocate of the mild and inoffensive principle upon which his journal has been conducted, than by referring their Honors to the fifty five numbers which he had the honor to publish.  If they had honored his humble lucubrations with a perusal they would feel that no journal could be conducted with a more tender regard for public and private character, the sanctity of which he had never violated.  He felt peculiar pleasure in having introduced a publication, which by its cheapness and consequent extensive circulation, had been the means of diffusing a taste for reading throughout the colony, and by the instrumentality of which 10000 of his fellow creatures had been taught to read who could not read before its existence.  He would confine his observations within the narrowest possible limits, because he felt that even should their Honors make the present rule absolute, the public would be made to see how little cause the prosecutor had for complaint: that he would have reason to shrink from the public eye.  It was a source of eminent satisfaction to him that the matter complained of was true, and that satisfaction was heightened when he reflected that it was known to one of their Honors to be so; and he would have shrunk from his station as the Editor of a public journal, under the weight of a conscienciousness of his unworthiness for that office, could he have let such a circumstance pass by him unnoticed, without expressing those sentiments which such a transaction called for; if he could have done so he would have proclaimed himself unworthy of public confidence and support.  That court was the legitimate guardian of the liberties of the Press, and he relied with some confidence that their Honors would not suffer it to be trampled under foot by granting rules founded upon complaints like the present.  If his Press was to be put down, the Colony would soon see with grief that it was the precursor of the destruction of the colonial Press generally.  No Editor of probity of principle, could have avoided deprecating the circumstances connected with the address, which the prosecutor had surreptitiously got up, on the occasion which called forth the remarks complained of.  Instead of appearing before the public in such a manner, he ought to have had the modesty to remain in a state of obscurity.  There was a remarkable observation which had been made by Mr. Hall of the Sydney Monitor, the fallacy of which was too apparent to require any comment, as applied generally, namely that a jury was bound to consider all matters relative to the case at issue, from whatever source that knowledge was obtained independently of the evidence; but fallacious as this general principal is, it applied with strict justice on the present application.  He had to regret the absence of the Grand Jury institution through which such proceedings passed in the Mother Country, but he relied on their Honors exercising the functions of the Grand Jury in ignoring the bill.

Mr. Wentworth rose to reply; the learned Gentleman submitted to the Court that Mr. Kentish had offered nothing in palliation of the charge, but on the contrary had given expression to observations which tended to aggravate it in a material degree.

His Honor the Chief Justice, said that there would be no necessity to apply any argument, as the Court saw nothing in the argument against the rule which could induce it to discharge it.  Rule made absolute.

 

Notes

[ 1] See also Australian, 17 and 24 February 1835; Sydney Gazette, 24 February 1835.  Kentish was later sued by Finch for the debts he owed in running the Sydney Times.  He won the action, presumably because he had proved that the two of them had been in partnership:Australian, 27 February 1835; Sydney Gazette, 26 February 1835.  Unfortunately for Kentish, the result was overturned on 7 March 1835, and a new trial ordered: Sydney Herald, 12 March 1835.  On subsequent litigation, see comments in the Australian, 13 March 1835; and the law reports in Sydney Herald, 4 June 1835; Sydney Gazette, 2 June 1835;Australian, 5 June 1835; Australian, 6 November 1835.

According to the Australian, 3 March 1835, Kentish moved the court on 28 February 1835 that the court should adopt a rule under which no one would be allowed to report the proceedings of the court except upon oath.  He was induced to do this, he said, by theMonitor's and Gazette's poor reporting of the action taken by Finch.  The Australian was nearly as bad, he claimed.  See also Sydney Gazette, 3 March 1835, noting that Forbes C.J. rejected the motion because the reporters were not officers of the court.  The Gazette also reported that he went on to move that Mr John Dillon, an attorney, be debarred for corruption.  He generalised about the profession, stating that the public were the flock, the judges the shepherds and the lawyers the wolves.  This was met by laughter, even by the bench.  The motion was dismissed, Dowling J. noting that it was one of the most impudent applications he had ever heard of.  See also Australian, 6 March 1835.

Kentish's legal troubles did not end there.  On 27 March 1835, the Australian published an advertisement by Hugh Taylor who had been agent for the Sydney Times.  This, too, ended in hostile letters and legal claims.

On 9 October 1835, the Australian reported the following, at the end of the law reports for 5 October 1835: ``Mr. Kentish sent in a memorial praying that the cases of Kentish v. Hall, andKentish v. Howe, might be postponed, circumstances preventing him from attending that day to conduct them.  Mr. Burton observed that the memorialist seemed desirous of pursuing a course ruinous to other persons as well as himself; it was a question of libel, wherein plaintiff as Editor of a paper, complained of the writings of rival Editors; surely those who had the press in their hands might wield it in their own cause in trivial matters, without bringing them into a Court of Justice; the actions in question appeared to him to be of a description only calculated to keep him in prison - he would therefore order them to be struck out of the paper."  See alsoAustralian, 16 February 1836.

There was a further hearing on 10 October 1835 (source: Sydney Gazette, 13 October 1835): ``Kentish v. Howe. - -  Mr. Wentworth moved, on the part of the defendant, for a judgment as in case of nonsuit, the plaintiff having failed to prosecute his suit.  The Learned Gentleman having read the usual affidavit of service of notice,

``The Chief Justice observed, that a petition had been forwarded to the Court by the plaintiff, in opposition to the motion, which could not be entertained.  Parties seemed to have nothing to do but to institute vexatious suits, and then, after having failed to bring them forward at the appointed time, the Judges were to have their time taken up by perusing long petitions.  This however could not be done, and the present motion, not being opposed, must of course be granted.

``Mr. Justice Burton said, he apprehended the petition contained complaints against him, for having directed the cause to be struck out of the paper.  His Honor wished Mr. Wentworth to look at the petition and see if there was anything in it worthy of notice.

``Mr. Wentworth accordingly glanced at the voluminous document, but perceiving that it contained some dozen or more pages of closely written foolscap paper, the Learned Gentleman shook his head, and begged to be excused from the task.  He had much more important business to occupy his time with.  Mr. Wentworth added that he felt assured that it was much better for the plaintiff to have his case decided in the manner it now was.  The motion was then granted."

See also Sydney Gazette, 3 March 1836; Australian, 4 March 1836 (Kentish v. Finch(damages, £75), Kentish v. Hall (damages, £25)).  See also Australian, 8 March 1836;Sydney Gazette, 10 March 1836 (further proceedings stayed on ground of informality in serving notices of action).

On 17 October 1835, a motion for a nonsuit in Kentish v. Fletch was refused: Australian, 20 October 1835; Sydney Herald, 19 October 1835.

Published by the Division of Law, Macquarie University