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

Brenan v. Jones [1840] NSWSupC 71

libel, elements of, damages, exemplary

Supreme Court of New South Wales

Stephen J., 30 October 1840

Source: Sydney Herald, 31 October 1840[1]

BRENAN v. JONES. - This was an action brought by Mr. John Ryan Brenan, attorney, coroner, and third police magistrate of Sydney, against the defendant, the printer, proprietor, and publisher of the Commercial Journal, for an alledged scandalous and malicious libel, published in that Journal on the 10th of June, 1840, which the plaintiff alledged imputed to him.  First, having left his native country (Ireland) without paying his just and lawful debts, and secondly, with having in his possession and using a carriage which he had not paid for.

            Previous to the jury being sworn in, his Honor enquired whether it was not possible for the parties to arrange the matter out of court, on which Mr. Therry, for the defendant, stated that his client had all along disavowed any intention of doing the lerst injury to the character of the plaintiff, and now he was authorized by him to disclaim any intention whatever of having any such object in view by the publication of the article in question.  Mr. a'Beckett for the plaintiff was happy to hear that the defendant had disavowed any such intention, and he believed that if the apology tendered was coupled with the costs of the proceedings so far as they had gone, his client would be satisfied, as he had not come into court to seek for damages, but to have his character set right.  The defendant having refused to pay the costs, the case went to trial.

            Mr. Darvall stated the case, and Mr. a'Beckett addressed the Jury, and read the article complained of as well as extracts from nine different publications of the Commercial Journal which had appeared previous to the 10th of June, in all of which the plaintiff was made the subject of animadversion, and which he contended were evidence of the animus with which the plaintiff had been assailed and annoyed.  The publication having been proved, the Attorney general was called as a witness, and deposed, that the article in question alluded to the plaintiff and was an insinuation of a very serious charge against the plaintiff of being one of the parties concerned in ousting Colonel Wilson from being the first police magistrate, nor had he ever officially heard that the plaintiff was remiss in the performance of his duties as a coroner or as a police magistrate.

            Mr. Therry for the defendant addressed the jury, contending that as it had not been shown that the defendant had written or published the article in question, with a malicious intention, and had by his council disavowed any such design, therefore his client was entitled to a verdict; he thought the whole case had originated in Mr. Brenan's sensitiveness, for the superior reputation of his carriage, for it was one of the charges in the declaration, that the defendant had not only libelled Mr. Brenan, but libelled his carriage; now the libelling of Mr. Brenan's carriage, was what showed the writer of the article in question, who ever he might be, a most consumate ass; but for the attack on the carriage, the case never would have came into court. - He was sorry Mr Brenan had not turned the attention of his counsel to that part of the article before the court, in which it was insinuated that he had been concerned in overturning the first police magistrate, this was really a grave charge, and ought to have been refuted.  He was sorry to see Mr. Brenan so sensitive on minor points and yet pass over this which really affected his reputation as a gentleman and a magistrate, he did not for a moment believe that Mr. B. had been concerned in ousting the Colonel, but then it would have been satisfactory for his friends to have seen the insinuation refuted.  He thought that Mr. B. was too sensitive on the score of remarks made concerning him in the newspapers.  Mr. Therry had been assailed far more by them, than even Mr. Brenan had been, but he never had brought an action for libel, nor did he think he should, as it was some time since he had been assailed.  One ground on which Mr. Brenan had been assailed, was that of being a pluralist, and any remarks on such a subject coming from (Mr. Therry) might be said to come with a bad grace, but still he held that being a pluralist was a legitimate subject for the animadversons of the public press, and he must confess that pluralists are bad things for the public, and like other evils of a similar kind are only to be tolerated uutil[sic] the means of remedying them are obtained.  With regard to the press censuring the private character of public men, if we looked at the press of the mother country of late years, and see how Mr. Wakefield, Kean the actor, and others had been assailed, the opinion appeared to be gaining ground, that public men in their private characters were legitimate subjects for the public press to censure or applaud, and this was consonant with the doctrine of morality.  In conclusion he remarked that the article in question was to be regarded more in the light of a squib published for the purpose of giving Mr. Brenan a little wholesome chastisement for his vanity respecting his carriage, which he had brought with him from Ireland, than any dark premeditated attempt to injure him in the eyes of the world, and with respect to the extensive circulation of the "Commercial Journal" which his friend relied on as giving him as claim for exemplary damages, the jury wonld see that the weekly circulation was stated at twenty-five hundred, but then there were two publications.

            His Honor in putting the case to the jury left it to them either to find a general verdict or if they thought proper they might distinguish between the inuendos, and say on which they found for the plaintiff and on which they found for the defendant.  They were also to form their opinion of the intent from the act and the circumstances, and if no intent to injure could be arrived at, then they were to enquire what injury had been sustained, and if neither intent nor injury were made out, then they would find for the defendant.  It was also to be borne in mind that they were entirely to abstain from allowing any thing that had been read from the other publications going farther with them than to show the animus, and stated that although they had heard the opinion of the Attorney-General, or more properly of Mr. Plunkett, who acts as the Attorney-General, respecting the tendency of the article in question, yet they were not bound by that opinion except in so far as it was consonant with a fair and impartial construction of the words in tha article in question.  The jury retired about half an hour when the Crier of the court brought in word that they had stated to him, that they were not likely to agree, while another party of them had told him they would agree in a short time; about a quarter of an hour afterwards they came into court, and returned a general verdict for the plaintiff.  Damages £100,  His Honor certified for a Special Jury.

            Counsel for the plaintiff, Messrs Darvall, a'Beckett, and Foster, Attorney, Mr. E. D. O'Reilly.  Counsel for the defendant, Messrs Therry, Windeyer, and Broadhurst.  Attorney, Mr. Clark.


[1]              See also Australian, 31 October 1840.


Published by the Division of Law, Macquarie University