PHILLIP NEWBURY CASE

Dominion, Volume 14, Issue 160, 2 April 1921, Page 8

PHILLIP NEWBURY CASE

NEW TRIAL REFUSED

In December last Phillip Newbury, the well-known singer, who sought to recover 415090, was awarded J 3500 compensation in respect of alleged libel, from the "Triad” Magazine, Ltd., of Australasia. The defendants applies 'to the Full Court, consisting of the Chief Justice (Sir AVilliam Cullen), Mr. Justice Pring, and Mr. Justice AVade, for a new trial. Judgment was delivered a few days ago. The Chief Justice- (Sir AVilliam Cullen),, in delivering the unanimous judgment of the Court, said the right of the individual to a free expression of his genuine opinion on all matters of public interest was well recognised by law, subject to certain equally well recognised safeguards against its abuse. In the present case the matter discussed m the article complained of was admittedly one of public interest, the performance by a well-known professional singer on a public occasion. Tho importance of safeguarding not merely the rights of the publishers of newspapers, but the equal rights of all individuals in regard to tho criticism of such performance, was lopg ago well expressed by Chief Justice Jindal. "Criticism,” added the Chief Justice "so long as it keeps within the bounds of fair comment, cannot be penalised in an action of defamation meiely because the jury disagrees with the opinion expressed by the critic.” On tho question of malice. Sir AV ilham Cullen saw no evidence on which, it could be reasonably concluded that the Tight of criticism had been abused in this instance through any improper motive, though the language used was scathing and seemingly extravagant. He thought that the only ground upon which it could be considered an abuse of the legal ”ghts of the writer would arise if it could he seen to convey an incorrect statement ot fact in some other respect to the prejudice of the plaintiff. Sir AVilliam Cullen further said that it had been argued on behalf of the defendants tha; the article did not purport to be anything more than a statement of the writer s impression of the quality of the plaintiff s singing on a particular occasion Hit were plain on the face of it that the article merely had reference to the occasion he (Sir AVilliam Cullen) would have difficultv in holding that the verdict could stand, because no ono who had been present at the concert was called on the palintiff’s behalf to supply the jury with the necessary data to- enable them to judge of the veracity «nd fairness of the critic’s description. there was a large, body of evidence in commendation of the plaintiff’s previously existing reputation and merit as a public singer but that wduld not entitle them to conclude that his singing in this instance must have been good because he bad always sung well before. "In die case of a professional singer or actor,”' added the Chief Justice “there must he. from the nature of things, some difficulty in the way of proving that the critic has abused his right of fair comment, of a kind not usually present in oilier cases. If a Ixiok or picture happens Io be the subject of criticism it would generally be beyond the jury to speak for itself, but a criiicisin passed ' upon n singer or player of a musical instrument has reference to something which cannot be so easily verified. Every"variation in the degree of musical culture, of taste, of correctness rtf ear. or even of bodily health, may tell upon the impression that is produced. The latter part of the matter coniplained of. which contained the most offensive part of it. was corrected in general terms, and in the present tense, and was quite capable of conveying that these qualities in the plaintiff’s respect which were being so adversely discussed were habitual and characteristic. That was the gravamen of the, complaint set up in the inuendo in tho plaintiff s declaration. and that was the cliariicter of Iho question left by the Judge to the jury. If tho jury formed Hint opinion of the meaning of the words, it was reasonably open to them to do so, and it would follow (hat, in view of the ample testimony to Hie plaintiff’s established reputation as a singer, they would be warranted in. finding that’he had been defamed. On these considerations he wac of the opinion that the verdict could not be disturbed.” The application for a new trial was dismissed with costs.