Skip to Content

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

White v Atkins [1835] NSWSupC 19

slander, conditional statement - slander, privilege - damages, slander - deodand

Supreme Court of New South Wales

Dowling J., 16 March 1835

Source: Sydney Herald, 19 March 1835[ 1]

Monday. - Before His Honor Mr. Justice Dowling and a common Jury.

White v. Atkins. - This was an action brought by plaintiff, a bailiff's officer in the Sheriff's Department, against the defendant, a young gentleman, employed as a clerk in the Sheriff's Office, to recover a compensation in damages for verbal slander, in falsely and maliciously imputing to the said plaintiff a charge of felony.  The declaration contained two counts, the first setting out that plaintiff was of fair fame, never before being suspected of any dishonest action, and held a situation in the Sheriff's Department; that on the 27th day of September last, the said defendant did say, of and concerning a shirt missed out of the office, that if it were missing plaintiff must have stolen it.  A second count charged the defendant with saying, I know who has got, or who has taken the shirt; White has taken the shirt.  A third count laid the slander generally.

Mr Sydney Stephen addressed the Jury on behalf of the plaintiff, and called the following witnesses.

Henry Kingsmill. - I am principal bailiff in the Sheriff's Department, and have given a bond of £1,000 for the due performance of the duties of that office; process are directed to me, and I frequently put them into the hands of assistants in order to their being executed.  The plaintiff has acted in the capacity of my assistant, but he has not been with me for some weeks past, I have executed them myself; I know the defendant, he was formerly employed as a clerk in the office; I remember hearing of Mr. Pogson missing a shirt, which was supposed to have been stolen; I heard defendant say he thought it was the plaintiff who had taken the shirt, as he had been on duty that day; and he had frequently remarked that, on the days on which the plaintiff was on duty, he missed halfpence and other trifling articles from his desk; I did not take the words down in writing; a few days afterwards I heard Mr. Pogson say, he had found the shirt in his drawer; I had been absent from the office, on that morning, about two hours, in executing a levy on the Brickfield Hill, and when I returned, I heard the shirt was found. - When the words alluded to were spoken, Messrs. Pogson, Hitchcock, Wilson, and myself only were present; there were no strangers in the office at the time; I told the plaintiff what I had heard touching his character, and advised him, if he was conscious of being wronged, to make an affidavit in order to clear himself of the imputation; I told him unless he did so I could not allow him to act with me, while his character remained under a stigma of dishonesty; he expressed some hesitation as to making an affidavit, and intimated an intention to go to law; I advised him not to think of adopting such a course without first consulting the sheriff; I had heard that various articles, such handerkerchiefs, umbrellas, &c., had been taken from the office, and that plaintiff was suspected; I used to give him the keys of the office, as he attended early in his turn, to make the fire and dust the desks &c., until Cook, another assistant informed me that a person was in the habit of opening the writ books and taking notes of the entries; he said it was of no use to take out writs, as it was impossible to execute them, the parties by this means, having been put on their guard beforehand, always got out of the way; this information made me more cautious, and I have since executed the writs myself; there is a messenger belonging to the office, named Jones, a prisoner of the crown, who is a well behaved man, and not suspected of any of these charges; I recollect a pistol being missed from the office, which I subsequently saw in the possession of the plaintiff; I asked him how he came by it, when he said he had taken it for his personal protection at night; I told him he must know it was very wrong to take any thing from the office; I have found it more easy to serve executions since I kept the keys than before; I had no doubt that things had been missed as had been represented by the gentlemen in the office; I do not believe there is one individual there who is capable of telling a falsehood.

George Fitzgerald Wilson. - I am a clerk in the Sheriff's Office; I know both plaintiff and defendant; I remember an occasion on which Mr. Pogson missed a shirt; I should think it was about six months ago, on Mr. Pogson's stating that he missed the shirt, I heard defendant ask what constable was on duty, and said hastily, it must have been White, the plaintiff, as he had often missed things out of the office when he was on duty; I understood that he meant they had been stolen of course; he gave us a caution with regard to White on that account; I had frequently missed halfpence myself, and had mentioned it to defendant, who said it was not safe to leave anything in the way; the shirt was afterwards found on the extremity of the drawer; I do not know whether the plaintiff was in the office of not at the time; I don't think he was until after the shirt had been found, after which all suspicion relative thereto was removed; I believe the shirt had been brought to the office on a wet day, by Mr. Atkin's for Mr. Pogson; it was, in answer to an enquiry of Mr. Pogson, that defendant said he supposed plaintiff had taken the shirt; suspicion would naturally fall on the constables or messenger; I concurred with defendant in attaching suspicion to plaintiff; there was another constable named Cook, who did duty at the office alternately with White, but on those days on which Cook attended nothing was ever missed; no suspicion was ever entertained of his dishonesty; when White did duty things were said to be missed; I had not been long in the office at the time; a grubbing hoe was missed out of the office, which had been taken away by plaintiff; I don't think any person in the office gave it to him; I believe these things were never reported to the Sheriff; I don't think the remarks that were made respecting the plaintiff were intended to go beyond the office; I am of opinion that they were merely intended as a friendly caution to take care of the articles we might bring to the office.

Cross-examined by Mr. S. Stephen. - The only person present were Mr. Pogson, Mr. Hitchcock, defendant, Mr. Kingsmill, and myself; I attached no importance to the words at the time.

This was the case for the plaintiff.

The Solicitor General submitted to the Court that there was nothing to go to the Jury, inasmuch as it was set forth in the declaration that defendant had imputed a direct charge of felony to the plaintiff, whereas it had been adduced in evidence that the imputation was expressed conditionally in these words - ``If the shirt is gone, White (meaning the plaintiff) must have taken it.  The learned gentleman contended, that as the direct imputation, as set forth in the declaration had not been fully proved, the variance on which he now relied was fatal, and quoted a case from an acknowledged authority, to show how strict the proof was required to be, in order to sustain the declaration.

His Honor overruled the objection, being of opinion that there was something to carry the case to the Jury, yet much to go in mitigation of damages.

It was also submitted that the words alleged in the declaration to be false and malicious slander, was a mere friendly caution, which it was the duty of the defendant to give - Starkie on Evidence, vol. 2, page 864 - a mere confidential communication by a party interested to a party also interested, and therefore no action could be maintained - Buller's Nisi Prius Reportsand Roscoe on Evidence- in which authorities it was held that words so spoken were privileged communications, and not such as the law held would sustain an action for slander.

Mr. S. Stephen observed that his learned friend must be aware that it was in evidence that the plaintiff was charged with stealing the shirt without any qualification, and also that the charge respecting the halfpence, was made a specific charge against him.

The Solicitor General in addressing the Jury said, he was not sorry that the case came under their consideration, because it would make them fully acquainted with the nature of such trumpery actions, and the means by which they were subjected to such a misapplication of their time; this was not an action in which damages were expected, the plaintiff knew that no Jury would give damages in such a case; but it was an experimental action in which a farthing damages would amply effect the object sought to be attained; they would perceive that the plaintiff was but a plaything in the hands of lawyers; he felt that it was quite unnecessary to take up their time by producing evidence in behalf of the defendant, were it not in order to shew them further, with what a bad grace the plaintiff appeared before them, to claim a compensation for injury done to his character; he would therefore call Mr. Pogson.

Mr. Pogson. - I am Under Sheriff; I have often heard the clerks complain of missing halfpence from the office; copper coin is frequently required for the payment of Jurors who attend at certain times for the payment of their fees; there is no place in the office where anything can be locked up; I recollect hearing it remarked by the clerks in the office that the plaintiff's conduct was suspicious; I remember a hoe which had been forfeited as a deodand as having been the instrument with which a man named McDonald was murdered at Norfolk Island; it was missed from the office, and was traced to White, who when first taxed with having taken it, denied having it, but subsequently gave it up; I remember also a box of articles which had been forfeited as the effects of a prisoner under sentence of transportation, which when taken to be sold, were discovered to have been nearly all taken away, in comparing the articles remaining with the list that had benefit in the office by a former clerk; the deficiency was laid to White's charge.

Cross-examined - I did not make the list of the articles, nor did I compare them, which when I went into the office, other persons besides the plaintiff had access to the box; there was another constable, a messenger, and the bailiff; I don't go to the office so early as these persons do in general; I did not mention these circumstance to the Sheriff at that tie, because I could not bring it home to him, but I subsequently informed the Sheriff of his conduct in order that he might be discharged; but the Sheriff would not discharge him for fear it might be thought that it was for the purpose of intimidating him from bringing this action; I always took care to put my money into my drawer, which was the only one in the office that locked; I don't know that plaintiff had a garden for which purpose he simply took the hoe by way of loan; I know that he had no right to do so; he had no previous authority; he had no liberty from Mr. Atkins to take it; it was there after Mr. Atkins left the office.

A Mr. Stephenson formerly a clerk in the Sheriff's office, deposed to having lost a handkerchief from the office, and a handkerchief resembling it was subsequently traced to the possession of the plaintiff.  It appeared, however, to be a mere duster in which plaintiff had had frequently carried chips to light the fire, having found it laying about and much stained with ink.

This being the case for the defence. - Mr. S. Stephen again addressed the Jury on behalf of the plaintiff, setting forth his claim for damages for the violence done to his character, which up to that time had been irreproachable, he had suffered in mind and was likely to suffer still farther by the loss of his situation as the effect of the slanders of the defendant, and might be unemployed for a considerable time before he got another situation; this was a matter which in the consideration of damages they should not lose sight of; plaintiff was a poor man whose prospects were solely dependant on his fair fame and reputation, and his claims therefore for compensation were paramount with those of the most exalted individual; his humble station in life was not their province to consider; had he been injured in his character as an honest man, and to what extent?  He came before them in order by their verdict, to rescue his reputation from the odium which had been cast upon it by the defendant, by imputing to him acts of dishonesty, which if believed, would brand him with infamy.

His Honor in putting the case to the Jury, observed that in order to sustain an action at law for offensive expressions, it was necessary that they should be such as to convey to the minds of the hearers, a sense of some imputation of crime which would render the party slandered, liable to the punishment of the law, such as telling a man he had been guilty of a theft; were they satisfied that the defendant had imputed such crime to the plaintiff; a circumstance which they should bear in mind in the consideration of that question was, that at the time the words were spoken, there were, according to evidence, no strangers present.  It was contended that the words were a mere friendly caution to the gentlemen in the office, for the protection of their property from peculation, and such as the law held to be a privileged communication; but he would tell them that such expressions could not be justified, if they were satisfied they had been spoken falsely and maliciously, with a view to injuring the character of the plaintiff.  What the law recognized as a privileged communication, was in the nature of a history by a master, of the character of a former servant, who in answer to the enquiries of a person about to engage him says, ``I would not recommend you to have any thing to do with that fellow, for he is both a rogue and a thief," but it is also provided, that in making such statement, the master shall be guided strictly by the truth, and not go out of his way, to do an injury to the man's character by highly colored statements, or malicious misrepresentations.  In coming into a Court of Justice to claim from the laws a reparation in damages for an injury done to a man's character, the law requires that such an individual shall come with clean hands; that is, that he shall have so conducted himself in the eyes of the world as to be free from reproach.  Were they satisfied that the plaintiff stood in that situation; or did he come to demand a restitution of that which he had never lost.  They had heard in evidence that a person had been charged with a serious breach of trust in the execution of the duties of his office, which gave him access to the Sheriff's Department; in violation of that serious trust which necessarily devolved upon him, he had made himself acquainted with the names of persons against whom process of law had been taken out, but who in consequence of being forwarned had got out of the way; this was a serious matter, and rendered the business of the civil law a mere farce; this however was not now brought forward as a charge; but it was matter for their consideration if they believed it, in mitigation of damages.

The main question for their consideration was whether the defendant had falsely and maliciously charged the plaintiff with the crime of stealing, with a view to destroy his character.  If they were satisfied of that fact, the plaintiff was entitled to their verdict, and such temperate damages as would meet the justice of the case.  The jury retired for a few minutes and returned a verdict for the defendant.

Messrs. Sydney Stephen and E. D. O'Reilly, for plaintiff.

The Solicitor General and Mr. Chambers, for defendants.



[1 ] See also Australian, 20 March 1835.

Published by the Division of Law, Macquarie University