[libel - Launceston]

Cookney v. Brodie

Supreme Court of Van Diemen's Land

Montagu J., 17 December 1833

Source: Tasmanian, 20 December 1833[1]

Assessors - P Murdoch, Esq., J .P. and W. Wilson, Esq., J. P.

The information charged the defendant with printing and publishing a gross and malicious libel, in the Independent newspaper, in the shape of an advertisement, to the effect, that the plaintiff had clandestinely left his residence, having previously forwarded his goods, &c., in a bullock cart on the road to Hobart Town, concluding with the words, "an honest man is the noblest work of God."

The defendant pleaded the general issue, without justification.

Mr. Gellibrand for the plaintiff. - "Mr and Mrs. Cookney left Launceston on the 25th June, sending before them a bullock cart, which contained nothing more than two chairs for them to sit upon in the cart. The conclusion to be drawn from such an article as this, is, that Mr. Cookney had left without paying his just debts. The article, he believed, was not written by the defendant, but by Captain Goodwin, of the ship Kains. Mr. Tremlett refused to insert the advertisement, without some good authority, when Mr. Brodie wrote upon the advertisement, "insert this once;" upon which authority, the advertisement was inserted. I should tell you, Gentlemen, that the Independent newspaper, at this time, belonged to Mr. H Melville. I shall prove to you, that this advertisement was afterwards paid for by Mr. Brodie. It is infamous, said the Learned Gentleman, that any individual should thus have this character branded in a Journal, which circulates largely on the other side of the Island. The defendant in this case does not come forward to justify, but, indeed, by his plea, admits, that the libel is false; and if, under His Honor’s direction, you shall be of opinion that it is so, let me ask you, what compensation he ought to receive for an article like this, which is calculated to destroy not only his own peace of mind, but that of his wife?"

Mr. William Tremlett examined by Mr. Gellibrand. - Resides at Launceston; did so in the month of June last; the paper I hold in my hand was published on the 29th June last; knows both plaintiff and defendant in this action; received the manuscript of this advertisement from a person named Dudgale; has been paid for its insertion by Mr. Brodie; the manuscript is not the same as when he received it; there was an order to insert it at the bottom, in Mr. Brodie’s hand-writing; saw the manuscript a month or six weeks after the advertisement was inserted; looked for it, in consequence of receiving a letter from Mr. Melville, the Proprietor of he paper; the order was then torn off; does not know how it became so; the circulation of the paper is extensive.

Cross-examined by the Solicitor General. - Refused to insert the advertisement until paid for; cannot say Mr. Brodie ever read the advertisement in question; the advertisement appeared two years after the plaintiff’s arrival in Launceston; there were rumours afloat, that the plaintiff was considerably in debt at the time; does not know that he was insolvent; knows nothing of the shipment of his piano-forte; plaintiff’s character, according to rumour was very indifferent.

Re-examined. - Has never heard of a man running away from his creditors in a bullock cart; understood the advertisement to apply to Mr. F Cookney.

Dr. Ross examined by Mr. Gellibrand. - Considers the advertisement imputes to Mr. F. Cookney, a desire not to pay his debts; should consider after reading it, that Mr. Cookney was not worthy of being trusted; considers it imputes to him that he is a swindler.

Cross-examined by the Solicitor General. - As far as a witness’s own knowledge goes, the imputation is not warranted; has no particular acquaintance with plaintiff.

The Solicitor General submitted, that the plaintiff must be non-suited. Mr. Tremlett says that he refused to insert the advertisement until paid for - and Mr. Brodies pays for it, but the advertisement is not in Mr. Brodie’s hand-writing. Mr. Brodie merely says, if you insert this advertisement, I will be answerable for payment; but he does not say, I will be responsible for the consequences, and, therefore, he is not liable.

His Honor decided, that Mr. Brodied, by directing the insertion of the advertisement, rendered himself liable for the consequences.

The Solicitor General for the defendant:- "Gentlemen Assessors, the plaintiff has complained not only of the injury he has himself sustained, but for the injury his wife has sustained also. It is for you, Gentlemen, to say what damages are proper, for, as His Honor has decided that the defendant is liable, I am aware that a verdict must be given against him I hope, Gentlemen, you will be satisfied before you give a verdict, whether or not the plaintiff really, at the time the advertisement appeared, had any character to lose. The only witness that has been produced of any consequence, to-day, has said, that rumours were afloat injurious to the plaintiff’s character; the very smallest amount of damages then will, you must be satisfied, be quite sufficient. [The Learned Counsel here read an extract from Starkie’s Law of Slander.] They have, today, named the individual who wrote the advertisement; they do not prosecute him, but a man who might not have even known the contents of it. It you are not, therefore, satisfied that the plaintiff had a character to lose, you cannot give anything more than the very smallest amount of damages."

His Honor shortly addressed the Assessors:- "The first witness, Gentlemen, certainly has not given the plaintiff a very excellent character, nor has Dr. Ross done much to remove any bad impression, which the first witness’s evidence may have made - the whole of the case is contained in a nut shell. It certainly appears to me that Mr. Brodie’s conduct, although not proper, is still not particularly bad- for it might have happened that the advertisement had never been read by him. I shall, however, now, Gentlemen, leave you to return what verdict may seem to you necessary."

His Honor and the Assessors retired for about ten minutes, and then returned a verdict for the plaintiff - damages, £20.

Notes

[1] See also Colonist, 24 December 1833.