[libel – civil procedure]

Dobson v. Young

Supreme Court of Van Diemen’s Land

Pedder C.J. and Montagu J., 11 and 14 August 1840

Source: Hobart Town Advertiser, 14 August 1840[1]

            Both plaintiff and defendant are Attornies of the Supreme Court. Some time since the plaintiff purchased an estate called Derwent Park; and part of the money was allowed to remain on mortgage. In the mortgage deed was a clause empowering the mortgage, in a default of payment of interest, to foreclose or sell by auction. Defendant was attorney for the mortgagee. Default was made in payment of two quarters’ interest, and defendant caused an advertisement to be inserted in the Transporter, announcing that the property would be sold by auction in consequence of the default. The money was however paid, and the day afterwards, the advertisement appeared, but with it a notice in the same paper that the interest having been paid late in the evening before, the sale would not take place. For these advertisement the plaintiff institutes an action of libel, and alleges in his declaration that he being at the time engaged in considerable mercantile speculations, which he has ever since continued, and by which he made gains and profits, the defendant had wickedly and maliciously of, and concerning, the said plaintiff as a person so engaged in mercantile speculations, published the said advertisements with intent to injure the credit of the plaintiff, and cause it to be believed that he was unable to liquidate his obligations, to his great detriment and injury &c.

            To this declaration the defendant pleaded - lst. The general issue not guilty - 2nd. A justification under the whole circumstances - and 3rd. That the plaintiff was not described as being a merchant, and therefore could not recover in this form of action. Upon the first of these pleas, the plaintiff joined issue, but demurred to the other two on the grounds that the second plea amounted to the general issue, and that in the third a question was introduced (i.e. whether Mr. Dobson was or was not a merchant) not put in issue by the declarations.

            The present argument was upon these demurrers in support of which appeared Mr. Attorney-General and Mr. S. Stephen. The Court however called upon the defendant to support his pleas, and Mr. Solicitor-General argued at considerable length for the purpose of establishing the validity of the pleas. The learned counsel said, that with regard to the second plea it had been anticipated it might be met by a demurrer, but he had adopted it for the purpose of bringing out the whole facts, without which justice could not be done to his client. With regard to the third plea he would ask the Court to “look at the declaration”. It was quite imperfect.

Justice Montagu. - Then why not have demurred at once?

            Solicitor-General. Because, your Honor, my client being a member of your honourable Court, we thought I best for the sake of his character to adopt the other alternative.

            Justice Montagu. - A professional man has no right to a form of action denied to another subject. You say there is an immaterial allegation in the declaration; we will take it so; but you have joined issue upon it; and what is the Court to do?

            Solicitor-General. - Under the new rules the allegation is not immaterial. The libel complained of is not actionable, unless published of the plaintiff in a particular character - that of a merchant. In his declaration he has not described himself as a merchant. By our plea we are willing to allow him that character, but he repudiates the description by demurring to our plea.

            Justice Montagu. - Still you take issue on an allegation immaterial, and therefore your plea is useless. What is the jury to try under such an issue? Whether Mr. Dobson is a merchant or not? A man who has carried on mercantile speculation is not a merchant, therefore the allegation is immaterial.

            After some further discussion the plea was abandoned.

            A long argument took place on the second plea, which was also abandoned. Mention having been made of the paper being evidence against the defendant. His Honor remarked that in this case it would be no evidence against Mr. Young. It would be against the editor or publisher, but even the name of an author at the bottom of an advertisement was not sufficient to inculpate him, unless the publisher adduced evidence that it was published by his authority.

            The Solicitor-General then turned round and attacked the validity of the declaration. The effect of a demurrer was to bring the whole pleading under the review of the Court, which was “bound” to give judgment against the party making the first error. He contended that the declaration contained two defects, either of which was fatal. 1st. That the plaintiff was not described in a special character, by which alone he would be entitled to recover in an action of this kind - the language complained of not being in itself libellous. It was mere matter of fact.

            His Honor here observed that a truth, if published with a wicked and malicious intent to injure another person, might be the most deadly of all libels.

            The 2nd objection to the declaration was that if the Court should rule the plaintiff had a special character assigned to him in the declaration, there was no special damage laid, which was absolutely necessary under the circumstances.

            Mr. Horne followed on the same side.

            The Attorney-General for the plaintiff replied the pleas were altogether bad.

Mr. Justice Montagu. - Quite Bad.

The Attorney-General. continued. It puts in issue a fact not raised by the declaration. The declaration stated that the plaintiff carried on considerable mercantile speculations - the 3rd plea that he was “not a merchant in manner and form,” &c. As respected the other plea the learned gentlemen condemned the policy pursued by the defendant, for the honest purpose it might be admitted of bringing the whole facts before the public, in deliberately putting a plea on the file which he knew to be bad at the time - a plea which he shrewdly suspected would be met by a demurrer. As respected the declaration itself he contended it was quite sufficient. He could not say that Mr. Dobson was a merchant, as he well knew he could not were he to put fifty witnesses in the box get one to say so; but he would put twice fifty in the box who would at once say that Mr. Dobson carried on mercantile speculations. It was difficult to say what constituted a merchant, in this colony a special idea was attached to the term, as meaning an importer, or a person who sold wholesale.

Mr. Justice Montagu observed that every man who lived by buying and selling for profit was a merchant. The term was synonymous with the French “marchand”.

The Attorney-General believed few persons would coincide with His Honor. Was there an advantage to be given to a man who dealt in a small way because he sought his living by it, and to be denied to another who carried on similar speculations to a much greater extent because he did not make a living by them, surely the occasional speculator had the same right to protection. His credit was liable to be injured by the same means.

Mr. Stephen followed at great length, and contended that the declaration was quite sufficient. The plaintiff had sufficiently and truly described himself. Why then should he be narrowed in his limits on the one hand, or compelled to prove his allegation on a larger scale. Any dealer, even a private gentleman, might bring an action where damage had resulted to his credit.

Mr. Justice Montagu said that five minutes would enable him to express all the opinions he had to offer. After recapitulating the case, His Honor said he was asked to look at the declaration and what did he see there? Not the usual allegations that the plaintiff made a living as a merchant. The description is varied to suit the circumstances of the case. The law was open to all men for protection against a publication calculated to injure them; but to limit the number of actions for libel and slander, rules of law had been established limiting the remedy to persons who were libelled in their trade or calling. A man might be an attorney - and a merchant at the same time. It was evident from some feeling between the parties this action had been brought, and it was one of those cases powerfully showing the pernicious consequences of special pleading. The plaintiff had alleged so much as to put the defendant in a position of difficulty. He does not know what to do. The inconvenience and injury resulting from such a system was most baneful. Here was a mere allegation - no proposition cited - nor did he consider it possible to cite one. He should therefore exercise his common sense in every case where a party by a continuance of special pleading attempted to get a right - a privilege - a benefit denied to others of the Queen’s subjects. His Honour’s opinion was that the judgment of the Court should be for the defendant. If His Honor the Chief Justice should dissent he would feel it his duty to record his opinion, but otherwise his impression was so strong that he did not consider it necessary to pause for a moment.

The Chief Justice concurred with most of what had fallen from Mr. Justice Montagu, but wished to postpone his opinion till the next Court day. If the declaration was good, the plea is good that denies it. If otherwise, the pleas is bad also.

…

His Honor the Chief Justice gave his judgment in this case, in concurrence with Mr. Justice Montagu’s previously expressed opinion, that the objections to the proceedings raised on the hearing of the demurrers should be allowed.

Pedder C.J. and Montagu J., 25 August 1840

Source: Hobart Town Advertiser, 28 August 1840

            In this case the Chief Justice said that he was decidedly of the same opinion as Mr. Justice Montagu (given in our journal of the 14th inst) and discharged the demurrer. Mr. Horne then applied, on behalf of Mr. Young, to be released from the payment of costs, on the ground that a party placing an illegal demurrer on the file of the Court ought to pay them. Mr. Justice Montagu said Mr. Horne’s observations amounted to a distinct motion, which, as notice had been given, could not be entertained.