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

Brady v Cavenagh (1839) 1 Legge 107; [1839] NSWSupC 54

libel, apology - Catholics, prejudice against - Penrith - costs - damages, contemptuous

Supreme Court of New South Wales

Dowling C.J.,  11 July 1839

Source: Sydney Herald, 12 July 1839[1] 

Thursday. -- Before the Chief Justice and a Special Jury.

Brady v. Cavenagh -- This was an action brought by the Rev. John Brady, Roman Catholic Clergyman at Penrith, to recover compensation for a libel published in the Sydney Gazette newspaper.

The Attorney-General stated the case to the Jury.  Three days after the libel appeared in the Colonist, for which Mr. Brady obtained damages on Tuesday, it was copied into the Sydney Gazette, with the following prefatory remark: -- ``We copy the subjoined detail of Roman Catholic trafficking in the forgiveness of sins from the Colonist of Saturday.  When the article first met our eyes we were inclined to suspect that our contemporary had been imposed upon, but from subsequent enquiries we have reason to believe in the accuracy of the statement.  We should however be happy to learn that we have been deceived."  If the article had only appeared as being copied from the Colonist, Mr. Brady would not have brought this action, he would only have attacked the source.  Mr. Cavenagh being a respectable gentleman, his vouching for the truth of the statement gives it greater weight, and many persons who would pay no attention to it when it appeared in the Colonist, would pay attention to it with Mr. Cavenagh's voucher.  On the 13th October, after the preliminaries for commencing an action had been gone through, Mr. Cavenagh published the following article: -- ``the Confessional. -- Under the above heading some weeks ago we gave insertion to a paragraph which appeared originally in the columns of our contemporary the Colonist, and which had reference to an alleged abuse of the power assumed by Roman Catholic Clergymen of charging fees for the forgiveness of sins, on confession, stated to have occurred `not quite a hundred miles from the district of Penrith.'  Previous to giving the paragraph insertion we made enquiry touching its truth at a gentleman connected with the journal in which it originally appeared, and finding that he, from the respectability of the source from which the information had reached the Colonist office, had no doubt whatever of its truth, we gave it insertion, and expressed (upon the authority above mentioned, and not from any personal knowledge of the matter) our belief in the truth of the report.  Our attention however having been more particularly called to the subject by a gentleman who acted on behalf of the Rev. Mr. Brady, the Roman Catholic Clergyman of Penrith, we have thought it necessary to make a still closer enquiry into the subject, the result of which has been, that finding the information came only at second hand to the Colonist office, we think it but due to Mr. Brady that we should at once retract the p[a]ragraph, and apologise for having given it insertion; we do so the more readily because having latterly had occasion to come in contact with the same reverend gentleman, and having more than once handled his Reverence rather roughly, we would not willingly have it supposed that we would utter a syllable derogatory to his character except on the best [possible authority.  We shall be happy at all times [?]] to make the amende honorable whenever we find that we have inflicted a wound in error or unintentionally."  This the Jury would perceive was not a denial of the truth of the statement, but merely asserted that it came second hand, thus leaving it for the public to believe that there was actually some authority for publishing it.

The publication having been proved, the only witness called to prove the allegations contained in the declaration was Bishop Polding, whose evidence was similar to that given by him on Tuesday; but upon being questioned upon the validity of an absolution given by a priest improperly, the Right Reverend gentleman appealed to the Court as to the propriety of discussing such questions in a Court of Justice, when the Judge interfered and the matter dropped.

Mr. a'Beckett then addressed the Jury for the defendant, asserting that he should be able to show that his client had acted a meritorious part, highly conciliatory toward Mr. Brady, and that this action was not brought bona fide for the purpose of recovering compensation for injury done to Mr. Brady's character.  The action, he contended, was vindictive, and he stigmatised the conduct of Mr. C. H. Chambers, the plaintiff's attorney, for bringing the action, after Mr. Cavenagh had offered to make any apology that might be dictated; but the action must be carried on because Mr. Cavenagh refused to pay £18 2s. 2d. for costs, incurred he was at a loss to know how, before any writ was taken out.  The Attorney-General had alluded to some former persecution of the Rev. Mr. Brady, and he (Mr. a'B.) would therefore read an extract from a Sydney Gazette of a previous date (Mr. a'Beckett here read an article in which a very ungrammatical and inelegant letter purporting to be written by Mr. Brady to a gentleman at Penrith was inserted).  Notwithstanding that the working of the pois[o]n was described by the Attorney-General to be so very active, Mr. Brady, who could allow himself to be charged with writing such a letter without taking any notice of it, allowed months to elapse before he commenced the action for libel.  The article appeared in the Gazette on the 18th September, and on the 8th October Mr. Cavenagh received a letter from Messrs. Chambers and Thurlow requesting to know the writer of the article.  Before any further correspondence, Mr. Cavenagh made further enquiry, and finding that he could not substantiate what was charged in the article, on the 13th of October, he inserted the apology which the Attorney-General had read.  Not hearing any more of the matter, Mr. Cavenagh thought that the apology was considered satisfactory, but hearing that proceedings were about to be commenced, on the 23rd November, Messrs. Rogers and Young wrote to Messrs. Chambers and Thurlow, stating that Mr. Cavenagh had heard that proceedings were about being commenced, and drawing their attention to the apology which was made before any proceedings were commenced; that Mr. Cavenagh thought that Mr. Brady was satisfied with the apology, and if he were not satisfied, that Mr. Cavenagh would either repeat the apology or insert any other that Mr. Brady might think necessary.  On the 11th December Mr. Chambers wrote to Mr. Rogers, stating that the paragraph called an apology was inserted after proceedings had been threatened, and without Mr. Brady's knowledge, and Mr. B. was not aware how Mr. Cavenagh could suppose that he considered the apology sufficient, and feeling that no apology could be adequate to the injury, and feeling that nothing could be done to set him right but an action at law, he must proceed.  On the 13th of December Mr. Rogers wrote, drawing the attention of Messrs. Chambers and Thurlow to his former letter, and stating that Mr. Cavenagh had never justified the assertions in the paragraph, and that he again offered to insert any paragraph that might be dictated, and if this offer was not accepted he would submit his case to a jury with confidence.  On the 2nd February Mr. Rogers receive a letter from Mr. Chambers dated 2nd January, in which it was stated that proceedings would be dropped, if, in the first instance, £18 2s. 2d. was paid for costs incurred, and the enclosed apology inserted; the apology regretted that the paragraph had been inserted, and concluded with the following words -- ``we are now perfectly satisfied that it was and is wholly without foundation, and that neither Mr. Brady nor any other Roman Catholic Clergyman ever extorted or attempted to extort money either from this woman or any other person for forgiveness of sins or any other purpose."  This the learned Counsel contended, shewed that the action was not so much a matter of obtaining personal redress, as for the purpose of vindicating the system from the imputations cast upon it.  On the 14th February Mr. Rogers wrote that Mr. Cavenagh declined paying one farthing costs, and asked whether the latter part of the paragraph forwarded for insertion could be considered to be within the spirit of an apology.  On the 22nd February Mr. Chambers wrote that Mr. Brady would have been inclined to vary the latter part of the proposed apology so as to suit Mr. Cavenagh, had he not declined to have paid the £18s 2. 2d. costs, the particulars of which could be forwarded if desired.  Under these circumstances Mr. a'Beckett contended that it was evident that the action was only brought for costs; that the original £18 2. 2d. was the foundation of the action.  If the Jury thought that the article was a commentary upon a doctrine, and not an attack upon an individual, they would find for the defendant.  Under all the circumstances he trusted that the Jury would find a verdict for the defendant, as any verdict however small would damnify his client to a considerable amount.

Mr. Rogers was called and examined at considerable length, respecting the correspondence alluded to by Mr. a'Beckett, which he put in.  He said that in his opinion Mr. Cavenagh was not bound to pay any costs incurred before action was commenced.  On Wednesday afternoon an offer was made to settle the matter, if Mr. Cavenagh would pay all costs between attorney and client, but he declined.

The Attorney-General contended in reply, that the line of defence which had been adopted, aggravated his original offence, by having shewn that he was actuated by malicious feeling. The allusion to the article containing a letter sent by Mr. Brady shewed the feeling, and, although only one article had been received by the defendant's counsel, it was only one of a series of libels by Mr. Cavenagh, and shewed that for some reason he wished to attack and injure Mr. Brady.

The Chief Justice said that if the article was considered a libel, the defendant having pleaded the general issue acknowledged the falsehood of it.  By the law of the land, Catholic Priests have the same standing in Courts of Justice as others of Her Majesty's subjects.  The first question for the Jury to determine was whether the defendant published the libel, which had been proved in the ordinary manner.  The second question was whether the publication was a libel, and had the tendency alleged in the declaration.  The counsel for the defendant had asserted that the Jury were [not bound to take the] law from the Judge, but he must disabuse their mind on this point, and declare to them from the Bench, that if they believed the publication had a tendency to bring the plaintiff into hatred, scandal, and contempt, and asserted that he perverted his holy office, they must deal with it as a libel.  In mitigation, the Jury were to enquire whether, when the defendant became aware that he had been misled, he bona fide and promptly endeavoured to do away with the effect of it, and relieve the plaintiff from the imputations contained in the article.  If the Jury, considered that the article was a fair discussion upon a matter, for the purpose of doing away with ignorance or enlightening the public, they must give the defendant the benefit of it, and find a verdict for him.

The Jury retired about ten minutes, and found a verdict for the plaintiff -- damages, One farthing.

Mr. a'Beckett applied to the Judge to certify to deprive the plaintiff of costs.  His Honor said he would consider.

Counsel for the plaintiff, the Attorney-General and Mr. Windeyer; for the defendant, Messrs. a'Beckett and Foster.


Dowling C.J.,  16 July 1839

Source: Sydney Herald, 19 July 1839[2] 

The following is a copy of the decision of the Chief Justice upon an application made to him in the case of Brady v. Cavenagh, to certify to deprive the defendant of costs:--

This was an action for libel, and the Jury found a verdict for the plaintiff, with one farthing damages.  The case was tried before me, and an application was made for a certificate under the Statute 43, Eliz. c. 6, to restrain the plaintiff from recovering greater costs than the amount of the damages.  Not remembering any instance of there being any case in which such a certificate was ever granted under that Statute in an action on the case for libel, and my general impression being that such a certificate could not be granted under that Statute, I doubted my power and reserved the point for consideration.  I am now of opinion that I have no power to grant such a certificate.  It is true that is a personal action, but in order to determine whether this is one of the personal actions contemplated by the Statute, recourse must be had to the declared object of the Statute.  The title is ``An Act to avoid trifling and frivolous suits at law, in Her Majesty's Courts at Westminster;" an[d] the preamble states, that it was passed ``for avoiding the infinite number of small and trifling suits commenced or prosecuted in the Courts at Westminster, which by the due course of the laws of this realm ought to be determined in the inferior Courts of the country, to the intolerable vexation and charge of Her Highness' subjects;" and then by c. 4, it enacts, that, ``if upon any action personal brought in any of Her Majesty's Courts of Westminster, not being for any title or interest of land, nor concerning the freehold or inheritance of any lands, nor for any battery, it shall appear to the Judges of the same Court, or so signified or set down by t[h]e Justices before whom the same shall be tried, that the debt or damages to be recovered therein in the same Court shall not amount to the sum of 40s. or above, that in every such case the Judges or Justices before whom any such action shall be pursued, shall not award the plaintiff any more or greater costs than the sum of the debt or damages so recovered shall amount unto, but less at their discretion."  There is no doubt that the avowed object of the Legislature in passing that Statute was to confine all personal actions of small value, not being for any title of lands, nor for any battery, to the Courts Baron, and other inferior Courts in the country, and prevent litigation by litigious plaintiffs.  No instance of a certificate upon the Statute is to be met with in the books earlier than the middle of the reign of George the Second; until that time certificates were uniformly refused; the reasons for such refusal being perhaps that as causes were injudiciously tried in inferior jurisdictions in the country; the Courts of Westminster Hall would not so far prevent a plaintiff prosecuting therein as to deprive him of his costs by certifying under the Statute.  Almost all the decisions upon the Statute have reference to actions for injuries to the person or injuries to personal or real property.  I can find no instance of a certificate being granted in action for libel, and after some experience of the Courts at home, I may venture to say that such an instance never occurred.  It has been my lot to try many actions for libel in this Court, in some of which the damages recovered were under 40s., and no application for such a certificate has ever been made, notwithstanding the very natural repugnance to pay costs, which often forms the most grievous visitation upon an unsuccessful suitor.  This may be regarded as a practical interpretation of the Statute adverse to the power now sought to vest the Judges with, and looking at the obvious intention of the Statute, I cannot say that an action for a libel is one ``which by the due course of the laws of this realm ought to be determined in any inferior Court of the Colony;" however intolerable or vexatious one of the parties to the record may regard such an action.  The only inferior Court in this Colony that could take cognizance of such an action is the Court of Requests, and then only where the damages were laid at £10, and probably neither party, however upright or learned the Commissioner of the Court may be, would choose to submit the case to his decision without the intervention of a Jury.  I think the necessity for passing the Statute 21 Jac 1, c. 16, s. 6, [is] a strong commentary to shew that an action for libel was not contemplated by the Legislature in passing the 43rd Elizabeth.  The action for verbal slander is personal, and if such an action were within the operation of the Statute of Elizabeth, there would have been no occasion for enacting by the 21 Jac 1, ``that in all actions upon the case for slanderous words, to be used or prosecuted by any person or persons in any of the Courts of Record at Westminster, or in any Court whatsoever that hath power to hold plea of the same, if the Jury upon trial of the issue in such action, or the Jury that shall enquire of the damages do find or assess the damages under 40s., then the plaintiff or plaintiffs in such action shall have and recover only so much costs as the damages so given or assessed shall amount unto, without further increase of the same; any law, statute, custom, or usage to the contrary in any wise notwithstanding."  Now, it has been adjudged in the case of Greaves v. Warner, B. H. T. 24 George III. cited in Hullock, Costs p. 8, and in Tidd p. 997, that this Statute in its operation is confined to actions for slanderous words spoken of the person, and does not extend to an action for libel; therefore, if the plaintiff upon the execution of any writ of enquiry after judgment by default in an action for a libel, obtain only one shilling damages, he will be entitled to full costs.  On full consideration however desirable it may be to vest the presiding Judge with the power of depriving a party of his costs in a case of this description, I am bound to decide that I have no such power, and consequently abstain from intimating what my opinion would have been, had I been in a situation to exercise it.


[1] See also Sydney Gazette, 13 July 1839; Australian, 13 and 16 July 1839.  The Australian provides the longest report.  See also Brady v. McEachern, 1839. This is one of the few cases of this period to be reported.  See (1839) 1 Legge 107, though only on the costs point, on which judgment was delivered on 11 July 1839 (below).

[2] See also Sydney Gazette, 18 July 1839.

Published by the Division of Law, Macquarie University