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

Mitchell v. Thompson [1838] NSWSupC 29

libel, privilege - libel, publication

Supreme Court of New South Wales

Dowling C.J., 23 March 1838

Source: Sydney Herald, 26 March, 1838[ 1]

Friday. - Before the Chief Justice, and the following Special Jury; Messrs. Dawes, J. Brown, J. Barker, H. B. Bowerman, J. Betts, J. Byrnes, W. Cordeaux, G. Cox, W. Cox, H. Cox, E. Cox, and T. Chalmers.

Mitchell v. Thompson. - When this case was called on, the Attorney-General wished to know whether he was to appear in the case officially or not; he held in his hand a letter from Mr. Mitchell to the Acting Governor,[ 2] and he wished to know whether the plaintiff intended to act upon that letter; if he did not, he was entirely unprepared.  The declaration contained three counts, two of which he had been instructed to defend on behalf of the Government; the third count, which was for publication in a newspaper, he did not appear to defend.

Mr. Windeyer submitted that, when a plaintiff appeared by counsel, the other side had no right to read a letter from the party himself, which might compel him to take a course that would be contrary to counsel's advice.

The Chief Justice said that he could take no judicial notice of the case until the Jury was sworn.

The Attorney-General said it would then he too late to object; if the plaintiff did not intend to act according to that letter, he came into Court quite unprepared; he appeared on behalf of the Government, and Mr. Therry as private counsel for the defendant; if the Jury were sworn, the case must go on.

The Chief Justice said that there could be no doubt the gentlemen on the other side would, as a matter of courtesy, tell the Attorney-General what they intended to do.

Mr. Forster said they had never been applied to, or they would of course have given the information required.

A private conversation took place between the barristers, after which, the Attorney General withdrew, and the case was proceeded with.

Mr. Windeyer opened the pleadings.  The declaration contained three counts, the two first of which were abandoned.  The third count averred that the plaintiff was formerly a Colonial Surgeon, from which situation he was dismissed, and the defendant wishing to annoy and injure the plaintiff, and wishing it to be believed that the plaintiff had been guilty of certain acts of misconduct, on the 3rd of October, published a false, scandalous, and malicious libel, in a Colonial newspaper, of and concerning the said plaintiff, in the following words:-

Extract from General Orders, Sydney,

May 10th, 1837.

No. 124. - 2. Adverting to those charges brought by Colonial Surgeon Mitchell against his superior officer, for many of which there appears no adequate foundation, His Excellency thinks it sufficient on this occasion, to express his displeasure at so insubordinate and improper a proceeding, and to inform Surgeon Mitchell that if any well-founded complaint of his conduct towards the Deputy Inspector General of Hospitals shall he again brought by that officer before His Excellency, it will be visited by a measure of much greater severity.

(Signed by Command)K. SNODGRASS,

Lieut. Colonel, Major Brigade

(A true extract)     JOHN V. THOMPSON,

    Deputy Inspector General

Extract of a letter from the Assistant Military Secretary.

To the Deputy Inspector General of Hospitals,

Sydney, September 26, 1837.

Sir, I am directed by the Lieutenant-General commanding, to inform you, that having taken measures for ascertaining the correctness of the allegations contained in the charges brought by you against Colonial Surgeon Mitchell; His Excellency considers that officer to have wilfully and deliberately disobeyed the order of the Head of his Department, in refusing to attend the punishments at Hyde Park Barracks, and in omitting to sign the orderly  book when required to do so.

You will therefore inform Mr. Mitchell that His Excellency had directed his name to be removed from the list of Colonial Surgeons.


Assistant Military Secretary.

(A true extract.)JOHN V. THOMPSON,

Deputy Inspector General.

The damages were laid at £1,000.  To this declaration the defendant pleaded the general issue, not guilty.

Mr. Foster addressed the Jury for the plaintiff; he said that the plaintiff was well-known to most of the Jury; after nine years active service as a surgeon in the 48th Regiment, during which he visited the greater part of the globe, he was appointed a surgeon I the Colonial Medical Department, and in 1823 he was attached to the Sydney Civil Hospital, the most important medical establishment in the Colony, which in the year 1825 was placed under his special charge.  In those days the head of the department was satisfied with giving plain orders to officers under his charge, and did not consider it necessary to give orders in the style of a military proclamation; nor would it have been considered necessary to consult the convenience of a subordinate officer at the expense of the comfort of a higher.  At that time there was an immensity of public business performed in a manner highly satisfactory to the public, and this continued to be the case until the defendant arrived in the Colony as head of the department.  From that day there was a great change; instead of the unanimity which had prevailed among the different officers of the department there was the greatest discord, and the circumstances occurred which ended in the dismissal of the plaintiff.  If the defendant had done what he ought to have been prepared to have done, before he made the charge, for he was bound to be prepared to prove the charge before he made it; if he had put a justification in the record, then he (Mr. F.) would have been prepared on the part of the plaintiff to have produced evidence to shew that there was no ground for any of the charges, but as he had flinched from doing that, the plaintiff was precluded from giving evidence that he was most anxious to give.  It was not the plaintiff's wish to impute any blame to the government here, and therefore the two first counts which charged the defendants with libels, that the defendant said had been published under the colour of his office, were withdrawn.  The decision which dismissed Mr. Mitchell had been referred to the proper authorities, and no doubt justice will at last be done.  With regard to the libel charged in the third count, however, it was clear that was not done under the colour of his official situation; after the case was disposed of by the government, the defendant thought and under pretence of curing the ignorance of a writer in that paper, transmitted a supposed extract from a general order, in which the plaintiff was accused of acting insubordinately, and of bringing unfounded charges against his superior officer.  There could scarcely be graver charges than there against a person in the plaintiff's situation in life, and if the defendant was not prepared to justify he must be prepared to pay such damages as the Jury awarded.  He (Mr. F.) had no doubt that there would be some quibbling defence set upon the other side that the defendant did not send it intending that it should be published in the newspaper, but if a party sends a letter to the Editor of a newspaper, and does not restrain him from publishing it, and it is afterwards published, the party sending it is guilty of the publication, but, besides this, the mere sending it to the newspaper was sufficient proof of publication.  Even had the libel been a real extract from a public order, instead of a supposed one, which was denied (for if a party suppresses part of the truth, he is equally guilty with him who denies the truth), it was no justification for turning it over to a newspaper for publication.  There are many things which are privileged in particular places that are no privileged elsewhere.  If a Member of Parliament, who may say what he likes in the house, and is protected by the privilege of Parliament, publishes his speech, and it contains a libel on anybody, he is punishable not only civilly but criminally; nor will it avail him to say that an incorrect report of his speech had been published, and he published a correct one in order to stand fair with his constituents; nay, it has been lately held that the whole body of the House of Commons cannot authorise the publication of libellous matter.  If the character of the defendant had been injured in the Colonist he had his remedy by action, but he must not injure another for the purpose of setting himself right.

The first witness called was -

Mr. D. A. C. G. Thomas Walker. - I know the plaintiff and defendant; I pay the staff officers; the plaintiff was a Colonial Surgeon; the defendant is Deputy Inspector General of Hospitals; Dr. Mitchell was dismissed by His Excellency the late Governor; he ceased to receive pay on the 26th September.

Mr. James Spilsbury, printer. - I am printer of the "Colonist" newspaper; I produce a letter which was received at the "Colonist" office in October last, Mr. Bull to whom the letter is addressed was at that time Editor of the "Colonist"; he is now dead; Mr. Bull was then at Paterson's River, and I was managing for him; I suppose the writer sent them; I cannot say how they came into my hand; I opened it under the authority I held from Mr. Bull; they were inserted in the "Colonist."

Cross-examined. - they came for insertion, one part of it says it is to be inserted; (introductory matter read) I consider this an authority to publish; I cannot say whether it was enveloped; if the word private have been on it, I should not have opened it; if Mr. Bull had been in town I should not have published it without referring to him; I had seen the paragraph to which this refers; it was not written by the plaintiff, nor inserted by his request; (letter containing libel read) -

To the Editor of the Colonist.

October 3rd, 1837.

Sir, - Having seen a paragraph in last week's "Colonist."  In which my name is mixed up in no very courteous manner, arising, no doubt, from a total ignorance of the real facts of the case and of the characters of the persons implicated.  I beg to submit to your notice the following extracts from public documents, by which you will perceive the propriety of exercising more caution in future if you wish to maintain the character of your paper as an advocate for truth and justice,

I am, &c. &c,


Deputy Inspector General

Mr. Walker recalled. - The signature to this letter is that of Dr. John Vaughan Thompson; his signature is to each sheet; (the witness here went through the libel, proving that the different inuendoes [sic] applied to the plaintiff and defendant.)

Mr. George Cavenagh, Editor of the "Sydney Gazette." - In October last I received a written communication from the defendant; it was left in the office for me; I did not receive it from the defendant's hand; I published the documents that were inclosed (copies of the libellous matter; admitted to be in the defendant's handwriting.)

Cross-examined. - I did not consider myself authorised to publish the extracts as they were forwarded for perusal only; I wrote to Mr. Thompson for leave, and he sent me word that he had no objection personally, but thought it might be disagreeable to the Governor; seeing it in the "Colonist" I published it in the "Gazette;" had I not seen them in the "Colonist" I should have written to Dr. Thompson, again before I published them.

This was the plaintiff's case.

Messrs. Therry and a'Beckett moved for a nonsuit on the ground that there was no the slightest proof of the defendant intending the letter for publication.  The evidence of Mr. Cavenagh in fact negativing such an intent.

His Honor overruled the objection, being of opinion that the delivery of the letter either to Mr. Spilsbury or Mr. Cavenagh was sufficient proof of publication.

Mr Therry addressed the jury for the defendant.  He said he found himself in an unexpected situation as the Attorney General had come into Court prepared to conduct the case, and he felt that his client was unfortunate in losing not only the advantage of the talents of his learned friend, but also the influence and weight attached to his name and character.  By the abandonment of the two first counts many topics had been abandoned which he felt confident had better have been abandoned.  Mr. Foster in his address had introduced many topics that would have been better left out.  He had talked about the discord and disuaion [sic] that existed among the officers of the medical department, not one word of which had been proved, nor was the proper tribunal to try it; it had been decided upon by several boards of enquiry, and the jurors were not the arbitrations to sit in judgment on the decision of those counts; no evidence of this harmonious union between the of the medical department had been given, but with the conduct of the hospital of the gentlemen connected with it he had nothing to do; it was sufficient for him to know that Dr. Thompson was here, bearing a commission and acting as heard of the department.  With respect to the gentleman who was formerly head of the department, he had the honor of his friendship and could bear testimony to the zeal and ability with which he filled the duties of his station, but with Dr. Bowman he had nothing to do; he was entirely out of the case.  Of the plaintiff he had no wish to say one harsh word, and if he did wish to do so he could not; he stood too high both in his official and professional character, and the resources he had within himself made him rank too high, and be too much respected for any thing that he could say to affect him.  The counsel for the plaintiff; appeared quite disappointed at not finding a justification upon the record, but he was well aware that a justification could not be pleaded, as the matter had been before a court of enquiry which was the proper tribunal.  He had no doubt that the jury would see that there was not the slightest proof of malice, indeed it was evident that his only object could have been to have relieved himself from aspersions, and if a party has been misrepresented he has a right to vindicate himself.  Besides there was not the slightest proof of intention to publish; if Mr. Bull had been in town, or had the person left in his charge been a man of education or a man of the world, instead of the printer Spilsbury, in all probability it would not have been published.  Mr. Cavenagh who had more experience in conducting a newspaper at once said that he did not consider Dr. Thompson's letter authorised him to publish the extracts, and he particularly called the attention of the Jury to this gentleman's evidence as clearly disproving any intention of publishing.  The Jury would see that Dr. Thompson alluded to as article in the last Colonist, which article he would read.  (The learned gentleman here read an article from the Colonist of November. 29th, accusing Dr. Thompson of breeding discord in his department, and speaking in high terms of Mr. Mitchell.)  He did not believe that the plaintiff wrote this article - he gave him credit for too much sense but it was evidently written by a friend who took a warm interest in his welfare.  It was quite impossible that Dr. Thompson could sit down quietly under such an article as this; it was perfectly necessary he should vindicate his character in some way.  The article charged him with being a perfect firebrand, with introducing discord and disorder where nothing but harmony and union had existed before: the conduct of the defendant on this occasion was quite natural; he sent a letter to the paper to set himself right with the editor, and was it not perfectly laudable for him to do so.  Mr. Foster had treated the matter as if the extracts were fabrications; if they were fabrications, if the defendant had so imposed upon the editor of the newspaper, and damages could be too heavy; but he should be able to shew that they were true extracts from privileged orders, and that if the plaintiff had not abandoned the two first counts, they would have been prohibited.  When the Jury considered the object with which the defendant transmitted the alleged libel to the editor of the paper, merely so satisfy his mind that misrepresentations had occurred in his last paper, he  would ask the Jury could they find the plaintiff guilty of malice.  In cases where the defendant had a prima facie right to publish, and there was not proof of malice, the jury never gave damages.  Here the defendant was accused of promoting discord and insubordination, and the plaintiff was praised, he would not say beyond his deserts, but at any rate in every thing that was said Mitchell was right and Thompson was wrong; they were not the critical remarks of an impartial editor, but evidently of a warm partisan.  The learned gentleman concluded by observing that he was confident of a verdict, as it was evident the defendant had not been actuated by malicious motives, but merely to vindicate himself from misrepresentation.

Mr. James Spilsbury. - This is the Colonist of October 5th. (The defendant wished to put in evidence the article which called forth the publication of the libel, but his Honor held that unless it could be proved that the articles was written by the plaintiff, it could not be admitted as evidence.)

Captain William Hunter, Military Secretary.  (The Colonist was put into the witness's hand, but his Honor held that he letters written by the witness in his official character could not be proved that way.

After a few minutes consultation, Mr. Therry said that if his Honor prevented his proving the correctness of the extracts that way, he must close his case.

Mr. Foster in reply, said that he had great respect for the talents of his learned friend, but he certainly did not expect the admission that the name or official weight of any one was to have any influence in Court.  The publication to Spilsbury, he contended had been clearly proved, and to shew how anxious the defendant was to propagate the slander, he handed it over another Editor.  This was quite sufficient proof of publication, but in addition to that it had been proved that he handed it to the Editor in such a way as to induce him to publish it; indeed he had done every thing he could to get the matter published, and then did every thing he could to avoid being answerable for the publication.  But if the libels were not intended for publication, so much the worse, for he was then attempting to stab the plaintiff behind his back, and to instill the poisonous matter into the ears of the Editors of the newspaper, whose duty it would be to lay a fair statement of the case before the public.  Mr. Therry had complained very much at the libels being called false extracts, but so he (Mr. Foster) believed them to be, and that opinion was strengthened, when the other side had the gentlemen in the box who could prove whether they were false or not, and they dared not ask him a question, and he therefore felt quite justified in calling them false and garbled extracts.  As to the proof of malice, he submitted under the correction of His Honor, that every unauthorised publication defamatory of any person is presumed in law to be malicious.  If the plaintiff had published an article in the newspaper that produced the reply, it might have been proved in mitigation, but because another party libelled Dr. Thompson, was Dr. Thompson to libel Dr. Mitchell; as well might A hit B a slap in the face, and say he was authorised to do so because C hit him.  The libel he had no hesitation in saying, contained as grave charges as could be made against a gentleman of the plaintiff's rank; if the aspersions contained in the libel were true, the defendant could have justified and proved them, but as he had not done so, the Jury were bound to consider they were false and estimate their damages accordingly.

The Chief Justice after reciting the pleadings, said that it was quite competent for the defendant to have pleaded a justification, and if he had done so, and proved that the charges in the libel were true, he would doubtless have been entitled to a verdict, the first point for you to consider said His Honor, is whether the defendant published the libel, and if you believe the evidence, I am bound to tell you that the delivery of the letter to Messrs. Spilsbury and Cavenagh is a publication in law.  Then we have the further evidence that it was printed in the newspapers, and here we must ask ourselves, was the defendant the cause and means of having it printed, and I think you may say that he was, for all probability if the defendant had not sent it, it would never have been published.  The defendant imposes no restraint upon the editors, but leaves it in their power to use their own discretion, and you may naturally ask for what cause did he send it, if not for publication.  He knew that they were editors and conductors of newspapers, he left it to their discretion and must be answerable for the publication.

The second point is, is the matter as charged in the declaration, libellous of and concerning the plaintiff, as a private gentleman, as a surgeon, and of his conduct as a surgeon, now I hold it to be prima facie a libel, to say that a gentleman was insubordinate ad disobeyed his superior officer; it is of the last importance that a government officer should obey the proper orders of his superior, and it is highly libellous to say that he has not done so.  There are also several other expressions, such as His Excellency considers that officer to have wilfully disobeyed, &c., which unless justified, are highly injurious to the plaintiff.

The third point for your consideration is, is the matter privileged, which I hold it is not, as it is not called forth by any occasion, making it necessary.  If the Editor of a newspaper were a judge or head of department capable of judging between the parties, then the matter might have been privileged.  It does not as it not present stands fall within any of the cases quoted on the subject.  In the case of Fairman v. Hythe, the defendant was a tailor, and wrote to the Commander-in-Chief, that the plaintiff who was a Captain in the army, had given him a false bill of exchange with the view of swindling him out of some clothes, in which it was held that the paper being bona fide an endeavour to obtain justice was a privileged communication.  So of a member of the House of Commons is privileged to say in his seat in the house a vast number of thing that may be injurious to a party, but if he afterwards publishes it, his privilege cease and he is liable.  So, if in conducting a case in Court, a barrister say any thing that is libellous or defamatory, he is not responsible, but if he afterwards venture to print it, or any body else prints it, he has no privilege and is liable to punishment.  The true test of ascertaining whether a publication is privileged, is whether it was written with a view of obtaining justice from a party capable of granting it.  It has been contended that the defendant was privileged to vindicate his character; this would have been legitimate if the matter which superinduced the libel was proved to have been written by the plaintiff, which has not been proved, and therefore I hold that the publication was wholly unauthorised, and that the plaintiff is entitled to your verdict.

This brings the case to a mere matter of damages.  The alleged libels on the face of them only pretend to be extracts, and if they were really published for the vindication of the defendant's character, why did he not publish the whole of the orders and as he has not done so, he is certainly open to the suspicion of having given garbled extracts.  We must suppose that, in giving a decision in the matter, the Governor or a Judge would take all the circumstances into consideration, and publish his reasons for coming to the decision, and we may fairly suppose that the facts that are not published contain something admonitory respecting the defendant, who has taken good care to set forth everything that may harrass [sic] and oppress the plaintiff.

Mr. Therry asked his Honor whether he would not leave it to the Jury to say whether they considered that to state that the plaintiff would not attend punishment was libellous; at present he understood the Judge to say that the plaintiff must have a verdict.

The Chief Justice said that he held the publication to be unauthorised, and prima facie malicious.

The Jury returned a verdict for the plaintiff - Damages, £100.

On the application of Mr. Windeyer, his Honor certified for two Counsel and a Special Jury.

Counsel for the plaintiff, Messrs. Foster and Windeyer - for the defendant, Messrs. Therry and a'Beckett.



[ 1]See also Australian, 27 March 1838; Sydney Gazette, 27 March 1838; Dowling, Proceedings of the Supreme Court, Vol. 148, State Records of New South Wales, 2/3333, p. 171.

[ 2]Colonel Snodgrass.

Published by the Division of Law, Macquarie University