"TRIAD" v. NEWBURY.

Press, Volume LVII, Issue 17111, 5 April 1921, Page 10

"TRIAD" v. NEWBURY.

appeal;. PAILS. \\ •-. Sir William Gullen (Chief Justice), Mr Justice Pring, and/Mr Justice Wade gave judgment -in . the Banco Court yesterday (says the Sydney- "Daily Tele--j graph" of March 19th) on the'appeal by,! the defendants in the case of Philip Newbury, .the well-known.tenor singer, against Triad Magazine, Ltd., of Australasia, and Samuel E. Lees, Ltd.,' printers, to recover £SOOO compensation for . alleged tlefamatofy statements which appeared concerning him in an issue of tlie •VTriad." Plaintiff alleged thai the words of which he complained had reference to a performance or "The Beatitude,?' in Melbourne; that they meant that he was a most incompetent public singer; that he was incapable of singing his .part,; that he was-unfit to be engaged to sing in public; and that ho was unfitted in judgment and skill,and generally to teacn singing and. voice production. At the trial, which took place before Mr Justice Ferguson and a jury, a verdict was given for the plaintiff for £SOO. . The defendants now appealed to set'the verdict aside on the grounds, among others, that' it was against,the evidence; that the criticism. ; was fair comment; and that the damages were excessive. •

The Chief Justice said the matter discussed in the article complained of was : admittedly one of public interest, tho performance of a well-known professional singer on a public occasion. The importance of safeguarding, not merely the rights of the publishers of news-, papers, but the equal right of all individuals with regard to the criticism of such" performances; was' long ago well expressed by Tindal, C.J., in Gregory v. The Duke of Brunswick. There -the complainant was an actor: "There is no doubt'that .the- public who go to a. theatre have the right to express their opinions of the merit of the performers who appear upon the stage, and j believe that 'no persons are more'anxious that the public, should. have the right than the actors themselves, for if it were laid down that person* who exercised their free judgment w<mld be subject to actions for damages, not only would.it be fatal to the actors on the stage, but it would prevent, persons from frequenting the theatre at all.": Such criticism, so long as it kept within the bounds, of fair comment,' could not be penalised in an action of. , defamation merely because the jury disagreed .with, the opinion expressed by the critic." The'critic's judgment might' err through some particular opinion or prejudice of his own; but, as was stated by Lord Esher in Merivale v. Carson:. '"Every latitude must be given to opinion and prejudice, and then an ordinary set of. men with'ordinary judgment must say whether any fair-minded man would have made such a comment on the work." - - Having referred, to certain other phases of the case, his Honour said that the latter part- of the matter complain-, ed of.-which contained the most offen'-. sive part of it, was couched in general terms .and in £he present tense, and was quite capable of conveying that those - qualifies in tile Wnintifr e sing-. ing which-were being so adversely discussed were hab/tual and characteristic. Tin's was'this, 'gravamen of the complaint set up in the innuendo in the' plaintiff's declaration, and this was- the character of the question left by the judge to the jury. If the jury' forme's this opinion of the meaning of the' words it was reasonably open-to them to do so, and it would follow that, in view of the ample testimony to the plaintiff's established reputation as a singer, they would be warranted in further finding that he had been defamed. On these considerations his Honour was of opinion that the verdict could not be disturbed.

Mr Justice Pring and Mr Justice Wade agreed, the latter in a separate judgment. Mr. Lamb, K.C.. and Mr Sheridan, (instructed by Messrs Gilder. McMaster, and Co.) appeared for the ."Triad Magazine." and Mr Sheridan (by Messrs Gil.der. McMaster- and Co.) for Samuel,E. Lees, Ltd. The- respondent was represented by Mr Holnian', K.C., and Mr Biyan Puller (instructed by Mr" William Aniotti.

Before many years have passed Lon-, don may be-an almost noiseless city—so far as street traffic is concerned') the wood block-* and asphalt paving which replaced the old pavings being in .turn ousted by rubber. Recent cxperiirients •;bf" paving 'iho'lJorough "High ' strcbt; with rubber sheets have proved satisfactory", and the suggestion is made that-. Westminster City ''Council should adopt a scheme for deadening sound tin the island -site on which .'stands Charing Cross Hospital and the Ophtlial'mic Hospital. According to an. expert*, although tlie initialcost is double thatof wood, rubber, lasts six to ten times as long. Rubber is already in use under the Eußton Station arches, at the •entrance to St. Pancras Station, and in' the. cburtyard'3 of Savoy and Claridg'e's hotels.