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

Lamb v. Nichols [1841] NSWSupC 56

libel - damages, contemptuous

Supreme Court of New South Wales

Stephen J., 9 June 1841

Source: Sydney Herald, 10 June 1841[1]



Mr. WINDEYER opened the pleading, and stated that this was an action on the case for two libels which were published in the defendant's newspaper, in the following terms:- "We should be glad to be certified of the truth of the following on dit:- It is stated that a certain director of the Commercial Bank did immediately after the failures of Messrs Barker and Halien and Messrs. Dodds, Blackett, and Aird, in the result of which failures he was largely concerned, manage to have appropriated to his own convenience no less a sum than £17,000 in cash of the weekly money available for discount in the Bank, and that in effecting this purpose he took advantage of the temporary absence of certain of the Directors. If this be the case, and we are assured of the truth of the circumstance, it is perfectly scandalous. How many of the middling merchants and community were made to suffer to gratify the selfish rapacity of the man. Such proceedings tend to throw odium and discredit upon the Banks generally, and demonstrate more than any other argument that can be used, the pressing necessity for some reform." The second libel was published on the 19th of the same month, and was in these terms:- "In general reference to the foregoing remarks, and for the purpose of shewing the natural influence of such merchant-directors in cases of insolvency, we shall remind our readers of the peculiar circumstances arising out of the management of the trustees in the recent and important failures in the flour business, namely, those of Messrs. Barker and Hallen, and Messrs. Dodds, Blackett, and Aird. Trustees were appointed for each estate respectively, and it so happened that both estates were deeply involved with a well known firm who are large importers of wheat and flour. One partner in this firm became a Trustee in Barker and Hallen's estate, and the other in the estate of Dodds, Blackett, and Aird. Now this last mentioned estate was supposed to be able to pay 14s. in the pound, but the dividend upon the other was a mystery, nobody venturing to announce to the world the available assets. To the utter surprise of every body, the trustees of Barker and Hallen became the purchasers of the stock in hand of Dodds and Co. And what will be the result? Dodds and Co.'s estate, originally an excellent one, will now yield but a comparatively small dividend; while for reasons best known to the trustee partners, the estate of Barker and Hallen, originally in a very inadequate state, as to the probabilities of dividend, will, by having the stock of Dodds and Co. secured to it, pay the creditors more in the pound than was expected. There must be some good reason why the several trustees, being elsewhere co-partners, should have pursued this course. And they are enabled to keep their affairs in a state of mystery, inasmuch as the extensive money operations requisite are facilitated by the connexion of one of them with a well known Bank. He has a very large command of the discount moneys of that Bank, and is thus enabled, at the extensive inconvenience and loss of the middling man, to carry on the joint money concerns of the said firms, without the creditors knowing anything of the real details of the matters. Such things ought not to be: they involve matters of much suspicion, and certainly confer anything but credit on the character of the Sydney merchants. Why, in the name of common sense, are not the creditors of Dodds and Co. up and doing? Why do they allow all this to go on? Why will they be overruled by the pompous assurance of one man? We shall be glad to hear that even now this matter is properly sifted; and if any sort of collusion be proved, let the obvious remedy be had recourse to by the injured creditors. We may have more to say on these matters anon."

            The ATTORNEY-GENERAL stated the case, and said, that as they had heard this was an action for two libels, published on the 14th and 19th of January last, by the defendant, the sole proprietor of the Australian newspaper, and which reflected upon the character of the plaintiff in the grossest terms. The plaintiff was a most respectable merchant in Sydney, and the partner of the firm of Lamb and Parbury, and the defendant was an eminent solicitor, practising in the colony. And if the libel had merely reflected upon the plaintiff personally he would have passed it over in contempt; but as it reflected upon others also, with whom he was nearly connected, he was compelled to notice it: for as most readers in the colony were entirely and exclusively newspaper readers, the sting of the libels acquired additional venom. The libel began with an on dit, and there [was nothing] like an on dit to spice a libel with deadly poison and to render it attractive to the lovers of scandal. The libels charged the plaintiff with frauds and misconduct, and which, if true, would be more than sufficient to cause him to be scouted from society. It was true that the plaintiff's name was not expressly announced, but yet the libels were so pointed that there could be no mistake in their application. Although the defendant had not pleaded any justification, the plaintiff would now permit the defendant in every way to justify the libels, if he could justify them in the least; and, indeed, the plaintiff most anxiously invited the defendant to adopt such a course as far as ever he could adopt it. The defendant boasted of having his law cheap, and no doubt he would act cheaper for himself than for others, still perhaps he might find that notwithstanding this advantage of which he was possessed, it was impossible for any man to libel others in this community without paying something for such conduct. No doubt the counsel for the defendant would rely upon the liberty of the Press as being sufficient apology for these libels; but though the Press was called "the palladium of liberty," and though it was a mighty engine for good, yet it was also an equally mighty engine for evil, capable of destroying all social privileges, and, therefore, the jury would unhesitatingly and fairly give the plaintiff such damages as in their opinion would be sufficient to retrain the defendant from the future publication of such libels.

            The learned gentleman went through the alleged libels, commenting upon them with great power and humour, for the purpose of shewing their application and malice; we have merely given an outline of his eloquent speech.

            The plaintiff having proved the several publications and the proprietorship of the defendant, and having given evidence of the application and effects of the alleged libels, closed his case.

            The SOLICITOR GENERAL then addressed the Jury for the defendant at great length, and with great ingenuity. He said that there were two kinds of imposition in the world, that which was practised upon us by others, and that which we practised upon ourselves, and that it must be obvious that the plaintiff in this case was labouring under one of these impositions, for when he entered the sacred temple of justice, we expected to hear or to find something worthy of its great purposes, but in this case no one could find anything deserving of the consequences which were sought to be inflicted upon the defendant for the alleged libels; and it was clear that the plaintiff himself felt in no way aggrieved by them, and was brought into court by the Directors of the Commercial Bank, who were the sole originators of this action. Besides the libel did not clearly apply to the plaintiff, and even if it did apply to him, it was clearly never intended to reflect seriously upon him, but was only designed to expose a general system of business which the defendant believed deserving of exposure.

            The learned counsel read through the libels and dwelt upon them at some length, commenting upon the several passages which the counsel for the plaintiff had insisted upon as being libellous.

            Mr. JUSTICE STEPHEN then charged the Jury, and laid down the law in reference to the questions which they had to decide; he said they had to determine the publications were libellous, and whether they reflected upon the plaintiff personally, or upon a system alone, without in any way reflecting upon the plaintiff; and if the Jury believed that the publications were libellous according to their fair and ordinary interpretation, and reflected upon the plaintiff personally, they were bound to give the plaintiff damages for the injuries which he was calculated to sustain through the publications, either in his character or feelings. The defendant upon the pleadings admitted the untruth of all the imputations in the alleged libel, and therefore there could be no question upon that point.

            The Jury retired for about half an hour, and returned a verdict for the plaintiff, damages one farthing.

The ATTORNEY-GENERAL, Mr. FOSTER, and Mr. WINDEYER for the plaintiff.

            The SOLICITOR GENERAL for the defendant.


[1]              See also Australian, 10 and 12 June 1841.


Published by the Division of Law, Macquarie University