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

Cavenagh v. Wentworth [1837] NSWSupC 41

libel, privilege - W.C. Wentworth, conflict with Governor Darling, Governor Darling, conflict with W.C. Wentworth, damages, appeal against - W.C. Wentworth, character of

Supreme Court of New South Wales

Dowling A.C.J., 1 and 3 July 1837

Source: Sydney Herald, 6 July 1837[1 ]

Saturday, July 1, 1837. - Before the Acting Chief Justice and a Special Jury, composed of the following gentlemen:- Messrs. Fotheringham (foreman), How, Hallen, Kinelly, Kerr. Kinnear, Kenworthy, James, Gardner, Bilehrist, Gore and Fisher.

Cavenagh v. Wentworth. - This was an action of libel, damages laid at £500; Mr. Foster opened the case.  The plaintiff is Mr. George Cavenagh, Editor of the Sydney Gazette; and the defendant, Mr. Wentworth.  The declaration set forth, in the usual form, that defendant published, or caused to be published, a letter in the Australian newspaper, of April 4, in which the plaintiff was called a disgraced and discarded menial: the second count stated that the defendant wrote a letter to Richard Jones, Esq., in which he stated that the plaintiff had been dismissed from a subordinate situation in the Gazette Office, under a charge of embezzlement.  The defendant pleaded, firstly, the general issue, and secondly, several pleas of justification, averring that the defendant had been dismissed as was stated in the alleged libels; and on these pleas the parties joined issue.  The Attorney-General addressed the Jury for the plaintiff, but as the trial was very lengthy we shall not pretend to follow the case as it was presented to the Court, but give an historical statement of it:

On the 25th March, the following paragraph was published in the Sydney Gazette:-

``A Correspondent informs us that Mr. William Charles Wentworth, J. P., will be seen in an entirely ``new light," when the celebrated ``conspiracy" trials against Messrs. J. T. Hughes, Eales, and others, arising out of the purchase of Crown Lands, come on.  We have heard of some of the circumstances, and at a proper time we ``pledge" ourselves to give them publicity for the benefit of the ``Government House Junta," and the edification of Mr. W. C. Wentworth, in particular.  Mr. W. once ``pledged" his honor to follow up the charges against General Darling.  We inform him that it is our intention to redeem ours at an early opportunity."

Upon the paragraph being seen by Mr. Wentworth, who resided at Invermein, he wrote the following letter to R. Jones, Esq., one of the executors to the estate of the late Mr. R. Howe, and in that capacity controller of the Gazette Office:-

``Windermere, March 29, 1837.

``SIR, - My notice has just been called to a most infamous and disgusting paragraph in the Sydney Gazette of the 25th instant, penned I suppose, but at all events inserted by your Editor, Mr. Cavenagh.  As that fellow was dismissed some time ago from a subordinate office in that establishment, on a charge of embezzlement, from which, I believe, he was never able to clear his character; I consider him, of course, quite unworthy of notice; but I must apprise you, that you have no right to place a man of such degraded character in a position to stab the character of others; and I have only to add, that as the paragraph in question is most false and malicious, unless it is publicly contradicted with a proper apology before I return from Gummum, I shall hold you personally responsible for its insertion.

I am, Sir,

Your most obedient servant,

R. Jones. Esq.W. C. WENTWORTH.

Upon receiving this letter on April 3, Mr. Jones went to the Gazette Office, and upon looking at the paragraph referred to, insisted that an apology should be made, and on the next morning, the following paragraph was inserted in the Gazette:-

``Mr. W. C. Wentworth has, we are informed, taken umbrage at a paragraph in the Sydney Gazette of the 25th March, which was forwarded us by a Correspondent, for insertion, as a squib on that gentleman, as a public and political character only - at all events we gave it publicity solely as such.  We learn however, that Mr. W. views it in a different light, which we cannot but regret, having no desire to wound the private feelings of any individual, from his Excellency himself, down to the lowest individual in the community, however politically opposed we may happen to be to their principles.  It has always been our aim to steer clear of personality in any shape; still, amid the multiplicity of business which necessarily engage the conductors of the press, it is not to be wondered at, if communications from Correspondents should occasionally escape the scrutiny of an Editor.  Had we viewed the paragrph [sic] in question as Mr. W. does, it would not have been inserted.  We considered it only as alluding to him in a political sense; and we are sorry to find, on a reperusal of the article, it carries an ambiguous meaning, which, in the hurry of business, escaped our attention.  We can assure Mr. W., that we plead ``Not Guilty," of ``wilfully, knowingly, and with malice afore-thought," indulging in topics which should, by every respectable press be considered sacred."

On the same morning, the following letter appeared in the Australian:-

``To the Editor of the Australian.

``My Dear Sir - Have the goodness to give insertion to the subjoined letter in your first number.

Your's faithfully,

W. C. Wentworth.

Windermere, 29th March, 1827.

``To the Editor of the Sydney Gazette.

``Sir - Let my name be erased from the list of subscribers to your pestilent publication.  In reference to the paragraph concerning me in your publication of the 25th instant, I defy you to publish anything to my disparagement, if you only publish the truth; if you publish a lie I will indict you for it.  This is the only notice I shall think it worth while to take of a discarded and disgraced menial like yourself.  But your employer has no right to place such a fellow in an office of public trust and responsibility, I shall therefore hold him personally answerable for your acts.

As to my alleged pledge about prosecuting General Darling - whoever will take the trouble of referring to my letter of impeachment, instead of placing their faith on such veracious informants as you, will perceive I made no pledge which ministers have yet enabled me to redeem.

I am, Sir,

W. C. WENTWORTH.

Windermere, 29th March, 1837."

Upon seeing this letter, Mr. Jones handed the letter he had received to Mr. Cavenagh, and the present action was commenced.

The Attorney General's address was very lengthy, and he called on the Jury to give the full amount of damages if the defendant did not prove his justification.  The plaintiff was a highly respectable man; the son of the late Major Cavenagh, and had two brothers in the army, and one in the navy, and it was incumbent on him to bring the present action to clear his character from the aspersions which had been cast on him by the defendant.

Mr. Cohen, the printer of the Australian, proved the publication of the letter in the Australian.

R. Jones, Esq., said that he received the letter from Mr. Wentworth by post, and in less than half an hour afterwards he went to the Gazette Office, where he saw Mr. Cavenagh.  Mr. C. told him that he had received the information, from which the paragraph was written, from one of the parties concerned in the conspiracy case, and he (Mr. Jones) insisted that an apology should be made, which Mr. Cavenagh was willing to do.  The same evening he wrote to Mr. Wentworth, stating that he considered the paragraph referred to Mr. Wentworth's political, and not to his personal character, and was entirely below the notice of a person moving in the station of life Mr. Wentworth was.  The following morning he saw the apology, and the letter in the Australian; and had he been aware that such a letter would have appeared, he would neither have written the letter to Mr. Wentworth, nor caused the apology to have been inserted.  He recollected Mr. Cavenagh leaving the Gazette Office in 1834, and afterwards he heard from Mrs. Howe that there was some trumpery charge of embezzlement, to which he paid no credence.  In 1836, he (Mr. Jones) obtained an injunction to restrain Mrs. Howe from interfering in the management of the Gazette Office, and shortly afterwards he appointed Mr. Cavenagh Editor of the Gazette, and had he believed him to be guilty of the charge laid to him by Mrs. Howe, of course he would not have appointed him.  Mr. Jones was cross-examined at considerable length, but no new point arose.  He admitted that he had received the letter as controller of the Gazette Office, and had acted on it in that capacity; he never heard of the embezzlement from any one but Mrs. Howe, but always considered Mr. C. a very honorable man.

This was the plaintiff's case.  A lengthy argument now took place; Mr. Wentworth and Mr. Windeyer contended that the letter to Mr. Jones must be withdrawn, being a privileged communication, and one on which a charge of libel could not be laid.  The three counsel on the other side opposed the withdrawal of the letter, and His Honor ruled that the whole of the letter could not be considered as a privileged communication, but it must be left to the Jury to say whether the letter was written with a bona fide intention.  The defendant had no right to volunteer statements no concerning the case complained of.

Mr. Wentworth, in a speech of an hour and a half, addressed the jury in his defence.  The learned gentlemen, after some introductory matter, said, that upon looking at his letter of impeachment, it would be seen that he had pledged himself to impeach General Darling when he was enabled to do so before a competent authority, and was enabled to procure and arrange all the evidence that his country afforded; and whenever Ministers enabled him to do so, he was willing to fulfil his pledge.  After avowing his approbation of the present Governor, he said, that so far from belonging to the government-house junta, he had had but three private audiences with His Excellency.  At one of them, when he was having a conversation with the Governor on the state of the currency, he incidentally mentioned the case of the land conspirators as an instance, shewing what a state the currency was in, and he said that he considered they had been guilty of a conspiracy.  The following day one of the accused parties asked him if it was true that he had been recommending the Governor to prosecute them, to which he replied no - at the same time telling the party what had really taken place.  He had hardly returned to his home when the paragraph was inserted in the Gazette, and knowing the source whence it had emanated, and the attendant circumstances, he felt very indignant as he considered that he was in fact called a spy and an informer, and under those feelings, having heard Cavenagh accused of embezzlement, in a court of justice, he considered he was justified by the ``sex [sic] talionis" in stating it, in order that the public might know who was his accuser.  Under the plea of justification which he had entered, he was not bound to prove that Cavenagh was guilty of embezzlement, but merely that he had left the office under that charge.

In support of the justification, the first witness called was Mrs. Ann Watt, late Howe, whose examination lasted upwards of three hours.  She stated, that in 1834, Mr. Watt, at that time overseer of the job printers at the Gazette Office, asked her how much petty cash Mr. Cavenagh had handed her, when she replied fifteen shillings, which Mr. Watt said was not enough, and pointed out some advertisements that had been paid for and not placed in the petty cash book.  She said nothing for two or three days, in order to allow time for Mr. Cavenagh to find out his mistake, but as he did not, she mentioned it to him when he was much confused, and said that he had mixed his money with the office money, and handed her seven shillings, about half the sum that was short.  She was afraid Mr. Cavenagh would injure Mr. Watt, and therefore looked over the matter, besides which, she did not wish to prosecute a man whose family she was intimate with; but in consequence of a quarrel between Mr. Watt and Mr. Cavenagh, she sent a message to Mr. Cavenagh by Mr. Greenfield, who was aware of the circumstances respecting the embezzlement, requesting that he would leave the office in a week, to which Mr. Cavenagh returned for an answer, that he had intended to leave on the 1st January following.

In cross-examination, Mrs. Watt admitted that she never told Mr. Jones what Cavenagh had been dismissed for until he commenced prosecuting Watt; she denied having called at Mr. Cavenagh's house more than once after he left the office.  When Mr. Cavenagh took her before the magistrates for assaulting him, she then told Mr. Cavenagh that he had been dismissed for embezzlement.

Joseph Williams, overseer at the Gazette Office, was examined, but his evidence was not material.

Colonel Wilson was then called to prove that when Watt was being tried at the Police office he accused Mr. Cavenagh of having been guilty of embezzlement, in order to prevent his evidence from being taken, but after a lengthy argument the judge decided that this was not admissable [sic] evidence.

W. B. Halden, who was at that time reporter to the Gazette, stated that he heard of the charges while Mr. Cavenagh was in the Gazette Office; that shortly after Mr. Cavenagh left he met him one day, and asked for some information respecting a woman that Watt had been living with, saying ``you know Watt has injured me, and I am determined to be revenged if I move heaven and earth."  By the injury, he considered he meant the charge of embezzlement which Watt had made against him.

This was the defendant's case.  In reply, the plaintiff called

Mr. Jones, who said, that when Mrs. Howe told him she had dismissed Cavenagh for embezzlement he did not believe her, because she is so much in the habit of saying what is not correct respecting any one she had taken a dislike to, and he would hardly believe her on her oath in any case where she had any feeling; Mrs. Watt had often spoken to him highly of Mr. Cavenagh, and after he had obtained the injunction, Mrs. Howe had written him a letter in which she spoke well of Mr. C., and said she was glad Cavenagh had acted so promptly as regarded an apprentice.

Mr. J. Greenfield, formerly collector at the Gazette Office, was confident he was not sent with a message as was described by Mrs. Howe; a short time before Mr. Cavenagh left the office he told him that he had a few shillings more than he should have, and if, when he was collecting, he found that a few shillings had been paid, to tell him (Mr. C.) and he would repay it; had heard Mrs. Howe speak in the highest terms of Mr. Cavenagh, and never heard her accuse him of embezzlement until Cavenagh had commenced his proceedings against Watt.

Francis O'Brien, the present collector at the Gazette Office, had heard Mrs. Howe speak in the most contradictory terms of Mr. Cavenagh, sometimes praising him and sometimes abusing him; after Mr. Cavenagh had been appointed Editor, she said she was glad of it, for he had always given her satisfaction, and she was sorry he had ever left the office, and that she had driven to his house at New Town three times in one day to induce him to return; from circumstances which had come to his knowledge, he would not believe Mrs. Watt on her oath where she had an interest or a prejudice.

Mr. Rodd, plaintiff's attorney, proved that he had served several notices on defendant's attorney to produce certain papers.

Mr. Hazard, sister-in-law to the plaintiff, stated, that for two or three months after Mr. Cavenagh left the Gazette Office, Mrs. Howe was in the habit of frequently visiting Mr. Cavenagh' house, and Mr. Cavenagh's family were in the habit of returning the visits at Mrs. Howe's residence at Bunker's Hill.

This being the close of the plaintiff's reply, Mr. Wentworth addressed the Jury, contending that by Mrs. Watt's evidence he had fully established his case, which was, that the plaintiff had been dismissed under the charge of embezzlement, and that the Jury must return a verdict for the defendant.

The Attorney-General replied on the whole case, commenting on the evidence, to shew that Mrs. Watt was contradicted to so many points that she was not to be believed, and that the fair inference to be drawn was that she had never thought of the accusation until Mr. Cavenagh commenced his charges against Watt.

It being half-past twelve o'clock when the Attorney-General concluded his speech, the Court was adjourned to Monday morning for the Judge's summing up.

Monday. - His Honor in the course of a laborious summing up, which lasted upwards of three hours, observed, that there could be no doubt that the defendant had published the libels complained of, and he was at liberty to shew, in mitigation, that the plaintiff was the aggressor by first attacking him.  In this view of the case it was for the Jury to consider whether or not the defendant had said more than was necessary for the vindication of himself from the insinuations contained in the paragraph, which although occult to the  Jury, might be perfectly intelligible to the defendant under the circumstances he had stated.  If under the sense of wrong he had published a libel, allowance must be made for human nature.  It was sufficient to satisfy the plea of justification, if the Jury considered he had proved that the plaintiff was dismissed under a charge of embezzlement; it was not necessary that he should, under the plea of the general issue, prove he was guilty of it.  It was competent for the Jury to consider whether the occasion had justified defendant in writing the letters complained of; if so, the defendant was entitled to their verdict; if they considered he had been guilty of excess they must return a verdict in proportion to that excess.  Under the plea of justification, if the defendant had failed in completely justifying the libel, they must return a verdict for the plaintiff, and then it was simply a question of amount of damages.  The Jury were absent about half an hour, and returned a verdict for the plaintiff, damages £225.  His Honor certified that this was a fit case for a Special Jury and three Counsel.

Counsel for the plaintiff, the Attorney-General, and Messrs. Therry and Foster; the defendant appeared in person, assisted by Mr. Windeyer.

 

Dowling A.C.J., and Burton and Kinchela JJ, 12 July 1837

Source: Australian, 14 July 1837[ 2]

Cavenagh v. Wentworth. - This was a motion for a new trial on eight specific grounds of objection.  The argument lasted for two days, and the Conrt was unanimously of opinion that there was nothing shewn for disturbing the verdict.  With respect to the last ground of objection, as to the irregular calculation of the damages awarded, their honors held that the affidavit respecting the declared statement of one of the Jurors could not be received.  The affidavit of the Juror himself could not have been received on that point; still less and affidavit shewing what he had said.  It would be unjust to receive an affidavit from one juror criminating not only himself, but the other eleven, and that too in their absence.  To make such testimony legal, there must be some extrinsic evidence offered of the fact, when the Jury was actually assembled; such as their being overheard or overseen in the Jury-room. - Motion for New Trial refused.

 

Dowling A.C.J., and Burton and Kinchela JJ, 13 July 1837[ 3]

Source: Sydney Herald, 17 July 1837[ 4]

Thursday, July 23. - In Banco.  Before the three Judges.

Cavenagh v. Wentworth. - The argument for a new trial was resumed this morning.  After the arguments of counsel were concluded, Mr. Justice Burton said, that he was of opinion that the objection respecting the admission of Mr. Jones' letter was not fatal.  With respect to the refusal to admit the evidence that was tendered by the defendant, he quite agreed with the reasons assigned by the learned Judge who tried the cause for refusing it - it would have been lawful under the plea of the general issue to have given evidence of general rumours, but evidence of rumours of a specific fact, which, by the pleas of justification, the defendant had said he could prove, were certainly inadmissible.  On the third ground, that evidence contradicting Mrs. Watt on collateral points had been admitted, he thought nothing illegal had been admitted; the letter written by Mrs. Watt to Mr. Jones was put in to contradict her on certain points, and although some facts of the letter were irrelevant, yet, as part of it was relevant, its being admitted formed no ground of objection to the verdict.  With regard to the adoption of the expression made use of by the Attorney-General that the verdict must be for the plaintiff, if all the pleas of justification had not been proved; he certainly thought that the manner in which the learned Judge had laid down the law on that point could not be found fault with, and he entirely agreed with him.  He was of opinion that the verdict was not contrary to evidence; there was evidence to both sides, and it was for the Jury to say which side had the most weight.  Mrs. Watt certainly swore positively, that, on the representation of Watt, she had accused Mr. Cavenagh of not handing her all the petty cash, and that he seemed perturbed and on the following morning handed her seven shillings, saying that  a mistake had occurred through his mixing the office money with his private cash.  Now, even if this was true, he (Mr. Justice Burton) did not consider it amounted to anything like embezzlement, but with the evidence of Mrs. Hazard and Greenfield, who contradicted Mrs. Watt on direct points, and the evidence of Mr. Jones and Mr. O'Brien; which went to throw discredit on her, he thought the Jury could easily arrive at the conclusion that she was not worthy of credit.  As to the verdict being contrary to the charge, and opinion of the learned Judge, he was of opinion that was no ground of objection; if it had been contrary to a direct principle of law as laid down by the Judge, it would have been an objection, but it was certainly no objection, in an action for libel where the Jurors are to return their verdict on a consideration of the facts and the law as laid down by the Judge, that the verdict was contrary to the opinion of the Judge.  He did not consider the Court competent to interfere on the ground of excessive damages, unless they were palpably outrageous, but he never knew an instance of a verdict in a case of libel being disturbed where damages were only £200, he was therefore of opinion that the verdict must stand.

Mr. Justice Kinchela - I entirely concur in the opinions expressed by my Brother Burton.

The Acting Chief Justice said, that it always gave him great pleasure when his proceedings were brought under the review of his brother Judges, to find that they concurred with him in opinion.  His Honour then went through the different points laid down by him at the the [sic] trial, and concluded by observing that after mature deliberation, he was of opinion that he was right in the positions he had assumed at the trial. - New trial refused.

Notes

[1 ] See also Sydney Gazette, 6 July 1837; Australian, 4 July 1837; Dowling, Proceedings of the Supreme Court,  Vol. 139, State Records of New South Wales, 2/3324, p. 97, and see Vol. 140, 2/3325, p. 1.  For commentary, see Sydney Gazette, 4, 6, and 8 July 1837; and see the Gazette's further disparaging comment on Wentworth on 8 July 1837.

[ 2] See also Sydney Herald, 13 July 1837

[ 3] The Sydney Herald states the date as Thursday, 23 July when it must have been 13 July.

[4 ] See also Sydney Gazette, 15 July 1837.

Published by the Division of Law, Macquarie University