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Brotherly Love

A brotherly dispute leads to libel action in 1890s Masterton.

Case reviewed: Campbell v Payton, Supreme Court, Wellington
(1899) 17 NZLR 91


In 1897, Wairarapa farmers John and Jane Campbell sued Mr Campbell’s brother, Hugh, in the Masterton District Court.  This was to recover damages after Hugh lit a fire that spread onto and damaged their property.

Hugh successfully defended the claim before Judge Kettle and a jury.  Three months later, the Campbells sought an order for a new trial, which was granted by Judge Kettle.

The Wairarapa Daily Times, which covered the application for a new trial, purported to report certain observations made by Judge Kettle during the course of the hearing.  These were reported in the following terms:

Before leaving the bench his Honour said that he had stated that this case should never have come before the Court.  An offer of settlement had been made by the defendant which should have been accepted by the plaintiff.  He still had very strong feelings that the parties should come to some settlement without again bringing the case before the Court.  The proposals for a settlement should have been adopted that were originally made.

The Campbells’ solicitor sent a writ to the newspaper proprietor, complaining that Judge Kettle’s reported remarks were inaccurate.  The newspaper agreed to make a “satisfactory retraction” if Judge Kettle confirmed the report was unfair.

Upon application to the District Court, Judge Kettle stated, through the Registrar (at that time called the Clerk), that:

  • the report was in some respects inaccurate;

  • he had simply expressed a hope that, because the parties were brothers and neighbours, they would endeavour to settle their disputes out of Court;

  • he had not said “an offer of settlement had been made by the defendant which should have been accepted by the plaintiff”; and

  • nor had he said “the proposals for a settlement should have been adopted”.

Following this advice, the newspaper published a statement, which referred to Judge Kettle’s reply.  However, the Campbells did not believe this amounted to the “satisfactory retraction” promised and, the newspaper declining to do any more, they sued the newspaper for defamation (or libel, as it then was).


On 29 September 1897, the case was tried in the Supreme Court at Wellington (the equivalent of the modern High Court) before Justice Edmonds and a special jury of 12.

The jury found that the words complained of were taken to mean that “the plaintiffs were improperly and vexatiously prosecuting their action against the said Hugh Campbell, and unconscionably trying to extort by means of such action more than they were in justice entitled to”.

The jury further found that this meaning was defamatory (“libellous”), and that the newspaper had not published a sufficient retraction.  Accordingly, the jury awarded the Campbells £20 in damages (approximately $3,700 in 2016).

After the jury’s verdict was taken, the case was reserved for further judicial consideration, the newspaper having applied at the close of the plaintiffs’ case for a “nonsuit” – i.e. that the plaintiffs’ claim was not made out as a matter of law. (Incidentally, provision for “nonsuit” applications were repealed by r 14(b) of the High Court Amendment Rules (No 2) 2002.)

Proving that in 1898 the wheels of justice moved as slowly as the front wheel of a penny-farthing, the application was not heard until 10 August 1898 – some 11 months later.

Issues in nonsuit application

The newspaper’s counsel, Mr Gully—inevitably one of the founders of modern leading law firm Bell Gully—argued the words complained of were not capable of a defamatory meaning.  He said no imputation of bad character could be found in the words, and it was in fact a reflection on both parties—the Campbells and John’s brother, Hugh—that no settlement had been reached.

The Campbells’ lawyer, Sir Robert Stout (who somehow found time to take the case between standing down in 1898 from 23 years of politics—including 3 years as Premier of New Zealand—and his appointment as Chief Justice in 1899), argued that the Court could not disturb the finding of the jury.  He submitted the words clearly bore the meaning of “harassing litigation against a brother”.


Justice Edwards heard the application alongside Chief Justice Prendergast.  The Chief Justice, leading the way, agreed with the plaintiffs’ case.  He noted all the court had to decide “is the abstract question whether the words are capable of a defamatory sense”.  He ruled the words were so capable:

It seems to me that to call a brother unbrotherly is defamatory.  The judgment as reported [i.e. the newspaper’s report of the property dispute] might well have meant that it was not creditable for one brother to bring such an action against another.  But it was capable of more, and the jury thought that it meant that the action was, under the circumstances, vexatious.

Justice Edwards sensibly leant on the Chief Justice’s views with simply:  “I am of the same opinion.”

Accordingly, the jury’s verdict was upheld.


The headnote of the judgment might be construed as recording ratio that it is defamatory “to say of any one that his conduct towards his brother has been unbrotherly”.  But on closer inspection, the Chief Justice’s comment in this respect was probably only obiter, given the fundamental issue was whether the words were simply capable of bearing a defamatory meaning.  And of course, the meaning to be drawn from a particular statement has to be looked at in its full context; while a particular word or phrase might be held defamatory in one case, it might not be in another.

It is also noted the jury found that the defendant was not “actuated by malice”.  It is unclear why the jury even needed to make such a finding: qualified privilege did not appear to have been raised.  More likely, this issue arose from the plaintiffs’ pleading that the defendant “falsely and maliciously” published the impugned report.  Then and now, such a pleading really just confuses matters.  By definition, a defamatory publication is malicious in law.  This is to be contrasted with a finding that a defendant was malicious as a matter of fact, which a plaintiff must still establish (effectively) in order to defeat/rebut a defendant’s claim of qualified privilege.  Some say that it was because of such ambiguous terminology that Parliament, when it enacted the Defamation Act 1992, removed the requirement to prove “malice”, preferring instead to require plaintiffs who seek to defeat/rebut a defence of qualified privilege to establish the defendant was “predominantly motivated by ill will towards the plaintiff, or otherwise took advantage of the occasion of publication”.

The short point is that there is no need to aver in a statement of claim that the words complained of “were published falsely and maliciously”.  Yet we see this in many statements of claim by those who are more ‘occasional’ defamation lawyers.  Section 37(1) of the Defamation Act simply requires a plaintiff to “give particulars specifying every statement that the plaintiff alleges to be defamatory and untrue”.  Therefore, all one needs to do is simply allege that the words complained of are “defamatory and untrue”; rather than alleging they were “published falsely and maliciously”.