[libel – Berkeley Estate – auction – land sales – Gosford – Tuggerah – Wyong]

Hadd v. Peek

Supreme Court of New South Wales

Burton J., 8 November 1841

Source: Sydney Herald, 9 November 1841[1]

MONDAY, NOVEMBER 8.

            Before Mr. Justice Burton and the following Special Jury:

            John Campbell, Wm. Wright, W. J. Deloitte, Robert Crawford, Conrad Martins, John O’Brien, Thomas Gore Rawdon Hume, Robert Lambert, John Blaxland, W. J. Wilson, John Buckland.

            This was an action brought to recover damages from the defendant for a libel alleged to have been published by him on the plaintiff in the Sydney Herald. The Attorney-General, with whom were Mr. Broadhurst and Mr. Darvall, were for the plaintiff; and the Solicitor-General, with Mr. Foster and Mr. Windeyer, for the defendant.

            Mr. Darvall opened the pleadings.

            The Attorney-General stated the case; and said that the libel which had been mentioned to the Jury, had been published on the plaintiff, a Surveyor, by the defendant, who was a merchant of considerable opulence, living and carrying on business in this town. The present action arose out of litigation which had taken place respecting the property, well known as the Berkley Estate. It would be in the recollection of the jury, that this estate had been sold by the defendant, after a series of most alluring advertisements, setting forth all the usual flourishes contained in auctioneer’s productions; alluvial soil, fresh water – fish, -- and race courses, being very liberally interspersed throughout the descriptions. Most certainly a great number of flat fish had been caught on the occasion, no one he (the Attorney General) believed, having pur[c]hased any portion of this highly eulogised property, without having afterwards, most heartily repented of his bargain. The plaintiff, previously to this sale, had been engaged to go down to the property to inspect its character, with a view to his reporting what he though of it. It seemed that his opinion of it, was not nearly so favourable, as the description of the property in the advertisements would lead us to expect: and subsequently in an action brought in the Supreme Court, and which involved the consideration of the quality of the property, he gave a very different account of the land, when he was in the witness box, than had been previously given of it in the vendor’s advertisements. Upon this Mr. Peek had written, and sent to the Sydney Herald, a letter which charged Mr. Hadden, the plaintiff, with having, in his evidence alluded to, uttered the most infamous misrepresentations respecting the quality of the property, and for this libel the present action had been brought. The defendant, among his pleas, had alleged, by way of justification, that the substance of the published libel was true, and reiterating the first charges against Mr. Hadden, of which by the action he complained. In those pleas it was attempted to be shown, that the plaintiff had in his evidence wilfully misdescribed the land, and to support these pleas, it was necessary the defendant should prove these allegations substantially and unless he could do that, the pleas themselves should aggravate the damages, which the original injury required from the decision of the jury.

            Mr. Fairfax was called to produce the newspaper, and prove the publication of the libel, as the defendant’s production.

            Mr. Iceton was then called to give his opinion as to the meaning he attached to the expressions used in the alleged libel. He thought they amounted to a charge against he plaintiff of having, in his evidence committed wilful and corrupt perjury; this witness also proved the inuendos in the libel, and stated, that he recollected that Mr. Hadden, the plaintiff, had been [engaged by Mr. Cooper Tu]rner, acting for Mr. M[c]Intoch, to go to the property and insp[e]ct its qualities.

            Other witnesses were called to speak to their knowledge of the plaintiff and his professional character, and to state their opinion of the character of the letter in question. In this latter point, they concurred in opinion with Mr. Iceton, whose evidence had been heard. Evidence was then gone into, connecting the libel with the testimony of the plaintiff on the trial of the Berkley Estate cases, the libel itself being then read, closed the case for the plaintiff.

            The Solicitor-General submitted that there were no allegations in the declaration, nor had anything been proved supporting the charge of perjury. That false testimony had been uttered upon oath, supposing that to have been given, would not support such allegations. The intent must be proved. A party might make the grossest misstatements on oath, and yet be quite innocent of wilful and corrupt perjury.

            Mr. Foster and Mr. Windeyer followed up the same line of argument, contending that there was no evidence to go to the jury.

            The Judge having overruled the objection;

            The Solicitor-General then stated the case for the defendant, and said that one circumstance must strike the jury; the long interval of time between the commission of the alleged injury on the plaintiff and his attempt at seeking reparation for it, being a space of nearly six months. One circumstance the Attorney-General had introduced which had nothing to do with their present enquiry, this was the alleged deception originally committed by Mr. Peek, the defendant, respecting the Berkley estate. With this matter, however it stood, they had nothing to do. The only question which they, the jury, had to try, was, had Mr. Hadden been guilty of perjury in the course of his evidence, given on the trials which had been mentioned? the Court had decided that the contents of the defendant’s letter were upon the face of them libellous, and therefore all that his counsel had to do, was to enquire whether the defendant could be justified in having made use of the language contained in the letter. It was clear that Mr. Peek had written the letter when he was in a state of great excitement, arising out of the injury his property and reputation had received from the evidence of Mr. Hadden (on the trial) of which [t]he defendant complained. In writing whilst he was in this state of mind, he was not likely very carefully or courteously to pick his expressions; and although he had made use of the words falsely and infamously, or he did not intend to charge Mr. Hadden with wilful and corrupt perjury. In his answer to Mr. Turner’s letter written on behalf of the plaintiff, Peek had distinctly denied, that he intended any such imputation, but averred that he was prepared to prove that the evidence of the plaintiff on the trial, did convey a manifest misstatement and misrepresentation, respecting the quality of the property. Some stress might be laid by the other side on the refusal of the defendant to make an apology to the plaintiff for writing the letter complained of. But why was Mr. Peek, if satisfied of the fact of the mistatements made by the plaintiff respecting the land, why was he to apologise for that, of the truth of which he was perfectly satisfied? Why was Mr. Peek to acknowledge that he had attempted to defraud the public in selling the Berkley Estate? Why was he to accuse himself of fraud? Now it had been proved that the plaintiff had been sent to the land in question by one of it purchasers, in order that he (the plaintiff) should afterwards give evidence as to its asserted bad quality, in behalf of the purchaser sending him. It was clear that the plaintiff, from that circumstance, would go to the land with a prepossession against the interest of Peek, and without making the slightest imputation against the plaintiff, it was perfectly reasonable, that unconsciously almost to himself his evidence would take a colour somewhat favorable to the party employing him, wishing to get rid of his purchase. On the trial alluded to, much stress had been laid on an alleged misrepresentation of Peek’s, that the land was within a short distance of East Gosford. Many witnesses had been examined on that point, and although no other witness except the plaintiff had said the land was more than twelve miles from Brisbane Water; the plaintiff had said the distance was full twenty miles. Again, the other witnesses had only partially condemned the land as to its fruitful character, but the plaintiff had averred that not a single inch of the land was, or could by any sort of manuring process be, made profitably productive. In addition to these, (by his client) asserted misrepresentations, the plaintiff had sworn there were neither timber nor fresh water in the property, both of which assertions could be positively contradicted by witnesses, whom he the Solicitor-General would call on behalf of the defendant, to contradict the testimony given by the plaintiff on the trial alluded to. If he, the Solicitor-General could show these matters, he trusted that he should then have made out a case, which would discharge the defendant from any liability to answer such a charge, as had been brought against him that day.

The Judge’s notes were then read of Hadden’s evidence on the trial of Lyons v. Reynolds. He said that he had been five and a half hours going to the property in question, in a steam boat at the usual rate. The property was about twenty miles from East Gosford, which consisted only of three or four houses, and could not be called a flourishing town. It seemed generally mere bush. Saw no vessels in Tuggerah Beach lakes. The whole country was flooded, and was a mere swamp. The evidence of plaintiff in Lyons v. Isler, was then read. He said he had been sent down to inspect the land; that on the plan there was a road delineated from East Gosford and Brisbane Water to Wyong, which had no existence in fact.

            The nearest road was five or six miles, from the estate in question. There was no water access to the estate, but by way of Tuggerah Beach. The Berkley Estate from East Gosford by the ordinary road is about nineteen miles; with the aid of a guide the way would be nearer. Witness saw no crops of bananas whatsoever; but saw the general character of the country, which generally speaking was very bad land. There was little timber on it, fit for any thing else but firewood.

            After reading the above evidence, which did not support the defendant’s plea of justification, the Solicitor-General applied to be allowed to enter a retraxit of these pleas, but His Honor doubting whether there was any authority for such a cause, it was disallowed.

            The defendant’s counsel then called one of the Reporters of the Australian Chronicle, who reported the case of Lyons against Isler, and who was about to give his evidence, when the plaintiff’s counsel objected to his being examined, as this would only perhaps be attempting to justify one libel, by using another as evidence. The defendant’s counsel then endeavoured to show that the defendant derived the information, upon which he wrote the libel complained of, from the report of the case of Lyons v. Reynolds in the Sydney Herald; but failing satisfactorily to connect the defendant’s knowledge with the newspaper report, as the exclusive source of it, the newspaper evidence was rejected altogether.

            Mr. John Want being then called and examined to this matter, shewed that the plaintiff had, on the trial alluded to, given such evidence respecting the quality of the property as we have above set forth in the Solicitor-General’s address.

            Other witnesses afterwards said, that the distance of the Berkley Estate from Brisbane Water, by the common road, was about eight or nine miles; and that if any party had sworn that the distance was nineteen miles he had sworn falsely. Much of the land, also, was very good; and if any one had said that not an inch was fit for cultivation, he had sworn falsely on this point also. A considerable quantity of timer also grew on the land; and if it had been described otherwise, such description had been a false one. Black butt, blue gum, cabbage and cherry trees were common; some of the gum trees being very large, and well fitted for sawing purposes.

            That was the defendant’s case.

            The Attorney-General now rose to reply: he said, that whatever confidence in the commencement of his case, he might have felt in its strength, that confidence was increased tenfold, now that it was fully developed by the evidence they had heard in Court. In opening the case he had called the attention of the Jury to the sham p[l]eas of justification which by the defendant had been placed on the record, and certainly his evidence had entirely corresponded with his pleas. His friend the Solicitor General had not evinced his usual happiness in this case, for it was such a one as entirely defied his powers. The Solicitor-General had said, that it had not been the intention of the defendant to impute perjury to the plaintiff. What distinction or difference, he (the Attorney-General) would ask, could they, the Jury, find between the meaning of the expression of the defendant, “base and infamous falsehood,” and the meaning contained in the charge of wilful and corrupt perjury? The defendant had said that he had only written the letter in vindication of his own character, and as a protection to his own interests; but he (the Attorney-General) would say to him, that he must not think he could be allowed to effect this purpose at the expense of other people’s interests. Could they, the Jury, believe that so many actions against the present defendant, respecting the estate in question, could ever have been brought, had not the purchasers of land at this sham auction, felt themselves deceived and cheated in the contracts they had made, whilst, relying on the defendant’s description of the property? What had been the course of the present defence? So soon as the Judges’ notes taken in the former trials – Lyons v. Isler, and Lyons v. Reynolds – had been read and found insufficient to support the defendant’s case, the counsel for the defendant attempted to enter a retraxit of the special pleas, and, on not being allowed to do this, they resort to other evidence, to support the pleas they are compelled to keep to, for better, for worse. Now it was important to compare this last evidence with that of Mr. Hadden the plaintiff. The witnesses for the defendant, it was true, had said that the land was fit for cultivation; this might be so, and yet it was no contradiction of Mr. Hadden; for the latter had said, that not an inch of the land was cultivatable by the ordinary processes of agriculturists. Well, then, covered with bush as it was, what could be more self evident than the fact of the land being from this circumstance, precisely as described by Mr. Hadden. Then as to the time it would take to go from Sydney to the property by water: The plaintiff’s evidence was, that it took five hours and a half by the Maitland steam-boat, and was this an unreasonable time by such a conveyance as they knew that to be, with perhaps it might be a strong north wind blowing in their teeth. The plaintiff had said too, that the Maitland Road was at least two or three miles from the estate, and that it was not practicable to make any road between these two places. In these assertions of his, he remained entirely uncontradicted by any evidence heard on behalf of the defendant; and although in respect to some of the circumstances respecting the quality of the land, the plaintiff had been contradicted, yet the Jury must bear in mind, that the plaintiff spoke of the property not as an agriculturist, but as a surveyor. The surface, and not the substance of the land, was all such a character could be expected to depose to. And yet, from such little discripencies as these, had the defendant dared to draw the material for manufacturing his foul charge against the plaintiff of perjury; a charge which was of the very last consequence to such an individual as the plaintiff, whose profession he could alone practice whilst sustained by high character, with which the bare suspicion of such an offence as the one then charged on him was utterly inconsistent. If the jury were to give the plaintiff all the damages laid in his declaration, they would not give more than the measure of the compensation due to the plaintiff for the injury he had sustained, or than would be fairly warranted by the delinquency of the defendant.

            Mr. Justice Burton, in summing up, said, that the case they had heard was an extremely important one, for, from the nature of the evidence, it was clear on the one side there was a distinct charge of perjury, and on the other there was an imputation of perjury. In every situation in social life truth was of the utmost importance, but in some it became even peculiarly so in respect to its consequences to society. Untruth in such a character as the plaintiff was for instance, of vital importance to all with whom he might have dealings. In such a character as a surveyor, for instance, falsehood, such as that which had been imputed to the plaintiff, if it could be brought home to him, - what was the effect of it?  It was like “removing his neighbour’s landmark,” for men’s properties might be most seriously affected by such a character as a surveyor who could commit perjury. His Honor then summed up the evidence with great care and clearness, commenting on those parts which peculiarly required the careful consideration of the Jury, telling them that if they were satisfied that the defendant intended to impute perjury to the plaintiff, and the defendant had not in their opinion sustained any one of his pleas of justification, they would have to give the plaintiff damages correspondent to the enormity of the defendant’s offence. If however, on the other hand, they believed that he had not intended to commit perjury, then the defendant would be entitled to their verdict, as the plaintiff was bound by his declaration, to fully make out this charge against the defendant. His Honor then left the case to the jury, who retired from Court about seven o’clock, and after an absence of one hour returned into Court with a verdict for the plaintiff.  Damages £250.

            Before the delivery of the verdict an attempt at an amicable arrangement was made, but proved abortive in consequence of the plaintiff’s refusal to take the defendant’s terms.

            Attorney for the plaintiff, G. Cooper Turner; for the defendant, Chambers and Thurlow.

Notes