[slander – magistrate, action against – Moruya – limits of location]

Hall v. Hawdon

Supreme Court of New South Wales

Dowling C.J., 15 October 1840

Source: Sydney Herald, 16 October 1840[1]

Hall v. Hawdon. – This was an action brought by the plaintiff to recover compensation for a number of slanderous expressions alleged to have been uttered by the defendant to the injury of the plaintiff, Mr. E. S. Hall, jun., who is the son of E. S. Hall, Esq., the late Editor of the Sydney Monitor, the defendant being John Hawdon, Esq., a magistrate of the territory.  Mr. Darvall opened the case, and Mr. Windeyer followed on the same side and gave a detail of the circumstances of the case and stated that his client had preferred coming to court instead of horse whipping or shooting the defendant and called –

            Joshua Pomphrey, superintendent for Mr. Morris of Gundarra on the Marouya River, beyond the boundaries of location, he knew the parties, and had some conversation with defendant at his house in Balgatta about the plaintiff; he went in consequence of what defendant had said about plaintiff, and said “I understand you have an objection to my supplying Mr. Hall with rations;” it was before dinner time; the defendant said he had great objections to his being supplied with rations as he believed he was a cattle stealer and gully raker, and [h]e had heard he had cheated every person where he had been, and had come to cheat them; he said witness should not give him rations and that he had encroached on defendant’s run.  The witness then said he should be sorry to encourage a cattle stealer, but unless he had the authority of defendant’s knowledge on the subject, he would continue to supply him, which was all that passed about the plaintiff, on which defendant flew in a passion and abused the witness.  The witness believed that a gully raker is one who goes into the back gullies and collects other persons’ cattle with his own, in order to steal them; it means a cattle stealer; the defendant positively asserted that the plaintiff was a cattle stealer and a swindler.  The defendant spoke in temper at first, but towards the close he spoke very loud.  The defendant is a magistrate of large property, and the plaintiff is a respectable grazier.  Mr. Hawdon called the plaintiff a d—d cattle-stealing scoundrel.

            Cross-examined. – It was yesterday that the witness spoke to plaintiff’s attorney about the case, he did not know the words in the declaration.  The witness’ employer is a very respectable grazier, and before the conversation the witness was in the habit of supplying Hall with rations, and went to defendants in order to learn on what authority he had raised the report of plaintiff being a cattle stealer, and to know whether he (the witness) would be safe in supplying him in time to come; as Mr. Hawdon did not make his statement on his own knowledge, he did not act on it.

            Re-examined. – He went to the defendant, in consequence of what a person named Alexander had told him Mr. Hawdon had said about Mr. Hall, and told him that Alexander had said Mr. Hawdon had been to Gundaroo, and told Alexander not to supply the plaintiff with rations, as he was a cattle stealer and a gully raker, and defendant said that Alexander was perfectly right, as Hall was what he stated him to be.

            James Large, assigned to plaintiff, recollected his master, going to the coast on the banks of the Marouya about the 15th April, 1839; they went there to settle with cattle, and they encamped at a water hole, from which the defendants men were in the habit of drawing water, and as the water became[?] the plaintiff ordered them not to draw any more, and the teams went away without it; a few days after defendant came with his superintendant named Foster, and a new-made constable, when the defendant enquired if plaintiff was at home, and was told he was, and while Mr. Hall was coming from the tent, he enquired if they were his government men, and, on being told they were, he said, “If I catch any of you on my land I shall flog you without any ceremony;” and Mr. Hall said he had given orders to that effect; he then enquired how it was that he had prevented his men from getting water, on which he said he required it for his own men, on which the defendant asked how he dared to come and sit down under his very nose?

            That when plaintiff was down there last they did not know who he was, or if they had Mr. Foster never would have admitted them to his table; he then broke out in a great passion, called him a “gully raker” and a cattle stealer, and said he had been raking the gullies in Argyle, and had, he supposed, came there to steal his cattle.  The plaintiff told him to go along for a “low bully,” on which the defendant, who was going away, turned round and called out “thief! thief! thief! – you are going about through the country swindling people!”

            Cross-examined. – The term “Gully raker is applied to cattle-stealers.”  Had been sent to the Colony on a sentence of seven years; the defendant appeared to be in a great passion about the water-hole, and when plaintiff told him to go along for a low bully, he said it in a low tone of voice, they had arrived a few days before from Lake Bathurst, and afterwards formed the station by building huts on it, the water-hole was on the opposite side of the river from Mr. Hawdon’s house, the witness had been down in March and June last about the present trial.

            Re-examined. – Had been three years and nine months in his service, and never had been punished; the defendants men merely took water for their cattle, from the hole.

            Mr. A’Beckett addressed the court for the defence, and contended that the plaintiff’s Counsel had injured his case, by overlooking the declaration, that he had not shown by evidence that he had been in any way injured by the slanders, and that even the first witness had not cut his company, nor ceased to supply rations, and therefore as he had shown no special damage he had failed to make out his case, and concluded by calling on them, that if they should give the plaintiff damages, to give him the smallest coin current in the Colony.

            In putting the case to the Jury, His Honor held that the epithet “cattle stealing scoundrel” was actionable, also that what may not be actionable as verbal slander might become so when written; he also left it to them to say whether the plaintiff had made out the utterance of the slander by the defendant.  He also pointed out that the defendant alleged that his communication to the witness Pomphrey was a priveliged or confidential communication, and not uttered for the purpose of being put into circulation, He stated the law respecting priveliged communications which are only not actionable when honestly put forward.  He also instructed the Jury, that they were to look at the circumstances under which the slander was uttered, and whether they were the ebullitions of anger, or the effects of deliberate malice; also to take into account the place where it was uttered and to consider the rank and station of the parties; when the Jury were about to withdraw the plaintiff’s counsel requested them to find their verdict on the second count only. – Verdict for the plaintiff – damages, £200.

            Counsel for the plaintiff, Messrs. Windeyer and Darvall, Attorney Mr. Rodd. – Counsel for the defendant, Messrs. Foster and A’Beckett, Attorneys, Messrs. Chambers and Thurlow.