Skip to Content

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

Watt v. Duncan [1842] NSWSupC 63

land law, fraudulent sale - libel - Wollongong

Supreme Court of New South Wales

Burton J., 19 February 1842

Source: Sydney Herald, 22 February 1842 [1]

This was an action for a libel alleged to have been published by the defendant, concerning the plaintiff, in the Australasian Chronicle.

            Mr. Foster and Mr. Windeyer appeared for the plaintiff, and the Attorney-General, with whom was Mr. Broadhurst, for the defendant.

            Mr. WINDEYER opened the pleadings.

            Mr. FOSTER stated the case, and said, that the libel which formed the subject of the present action had been written respecting some land of the plaintiff, which at the time of the publication he was about selling, and which, several parties who had previously intended to purchase, had refused to have any thing to do with , in consequence of that publication: the libel complained of was as follows:

            "Whereas Mr. Watts, tanner, of Wollongong, having lately purchased that land at Illawarra, formerly known as Miss Riddell's grant, and finding his purchase worthless, but thinking to deceive the land jobbers of Sydney, has divided it into allotments, some of which take in a quantity of my land; and whereas, he is now offering the same for sale, the public is hereby cautioned against purchasing such of the allotments as include my land, as I am determined to prosecute any persons trespassing on my property. THOMAS FAREUGHER.

            Such had been the effect of this advertisement , that when the land was put up at auction, parties had been afraid to bid, and the learned counsel would put parties in the box, who would satisfy the jury that they, but for this publication, had intended to give such sums of money for the property as would have afforded to the plaintiff a very handsome profit, on what he had originally given for it. If he, Mr. Foster, did this, the plaintiff would be entitled on damages equal to the loss, consequential on the libel complained of.

            Mr. Newcombe, examined by Mr. Mr. WINDEYER, said he was a clerk in the Colonial Secretary's Office, and that the defendants were the registered proprietors of the paper in question. He produced the paper of the 7th July containing the libel ; and the paper of 11th containing an apology.

            Francis Kelk, examined by Mr. FOSTER, said he knew the plaintiff and was about to purchase the Crown Estate in the Illawarra, for £3,500, when the publication came out.

            Cross-examined by Mr. BROADHURST: Was a boot and shoemaker; did not now carry on business in his own name ; carried on his business in the name of John Watt, the son of the plaintiff. This was because he had been in difficulties; had taken the benefit of the Insolvent Act; had failed for something about a thousand; Mr. Charles Wentworth had married witness's daughter, and the property in question being the neighborhood of Mr. Wentworth's land, he had instructed witness to buy for him, at as low a rate, and for as long bills a s possible. When examined before the Judge in the Insolvent Court , he had been committed to gaol. Was committed for 14 days for filing a sham plea; had never filed sham pleas since. (A laugh.)

            Peter Ford said he was a landholder, and he proved that it was the land of the plaintiff, about which the libel had been published.

            Mr. Goodall, the surveyor, proved that he had been employed to survey the Crown Estate; and had divided into different farms. The land was good, and was worth altogether between three and four thousand pounds, at the rate of between three and four pounds an acre; he had afterwards attended the sale; there were no bidders; thought it must be attributable to the publication complained of, and was not aware of any other cause.

            Mr. Smith, the solicitor, was called, who proved the sum paid by the plaintiff, when he purchased the land in question. It was £ 2000. Half was paid in cash, and half in bills. This was the plaintiff's case.

            The ATTORNEY-GENERAL, for the defence, said, he had hoped that petty forgoing actions were matter of history in the Supreme Court, but he saw that still they were occasionally brought, and that this particular action was one of them. By whom was the damage of the plaintiff proved in the present case ? By Kelk, a journeyman shoemaker, proved to be an insolvent, and who forsooth, when in this condition was about, if he might be believed, to purchase a property for such a sum of money as £3500. With respect to the plaintiff himself, the learned gentleman could easily conceive, that the libel complained of, had been very annoying ; but the plaintiff, as well as every one else, knew it had been unwittingly inserted by the Editor among his other advertisements, and that he could not at any time be supposed to have published it with a bad intent. This, indeed, was satisfactorily shown by the sequel; for Watt knowing full well that the defendant had merely inserted the advertisement in the way of business, went to him, and promised that if the name and residence of the writer were given up, the plaintiff as far as the Editor was concerned, would feel perfectly satisfied. An apology was afterwards made by the Editor, in the most conspicuous part of his paper, the name and residence of the offender were communicated to the plaintiff, and yet in defiance of good faith and of his express contract, this action against the editor is subsequently brought, - and why ? The jury would not be a little astonished when he , the Attorney-General , told them, from a blunder in the pleadings, the plaintiff, on afterwards referring his case to arbitrators, had failed in recovering what he considered to be a sufficient compensation form the author; and then his attorney, as an excuse for his conduct, puts forward this very blunder as the circumstance which compels them to break faith with the editor by bringing the present action , in order to recover that from the editor which they had failed in recovering from the author. He, the Attorney-General, trusted the jury would justly characterize this dishonourable proceeding by returning a verdict for the defendant, and thus contributing by the result of that case to the repression of such actions for the future.

            Mr. WANT proved the letter of Mr. Hayward to the Editor of the paper threatening the action.

            Mr. Elyard produced the order of reference; and Mr. Cheeke, one of the arbitrators, proved the proceeding on the reference, and that the damages awarded were £25.

            Mr. HAYWARD proved that he had called at the office of the Australian Chronicle, and informed the Editor that an action was intended to be brought against the author of the libel. He had gone to the office under the instructions of Watt. He told Mr. Duncan that he had instructions to bring an action against the paper, unless the name of the author was given up, so that the plaintiff might sue him. The name was given up, and he believed that the apology was inserted . Had never intended that the giving up the name of the author, by the Editor,   was to be in accord and satisfaction of the plaintiff as against the Editor.

            Mr. FOSTER replied and contended, that all that had passed between Mr. Hayward and the Editor amounted only to this, that the plaintiff had no particular desire to sue the Editor if he could procure satisfaction of the author; but that it had never been intended to relieve the Editor from the responsibility of inserting the libelous publication in question.

            His HONOR summed up, taking the same view as to the accord and satisfaction as Mr. Foster, but depreciating the manner in which the action had been brought. After which the jury returned a verdict for the defendant.

            Attorney for the plaintiff, Hayward; for the defendant, Want.          

[1] See also Australian, 24 February 1842.

Published by the Division of Law, Macquarie University