NEWBURY v. THE TRIAD.

Sun (Christchurch), Volume VII, Issue 2143, 28 December 1920, Page 19 (Supplement)

NEWBURY v. THE TRIAD.

PLAINTIFF AWARDED £SOO DAMAGES. "DETERMINED AND APPALLING SOUND." The action brought by Philip Newbury, -professional singer, to recover £SOOO damages for alleged defamatory statements appearing in the "Triad," resulted in the plaintiff being awarded £SOO damages. Mr Holman, K.C., and Mr Bryan Fuller (instructed by Mr William Arnott), appeared for'the plaintiff; Dr Brissenden, K.C., and Mr Sheridan (instructed by Messrs Gilder, MeMaster and Co.) for the v Triad"; and Mr Sheridan for the defendants, Samuel E. Lees, Titd.

The plaintiff complained of this portion of the "Triad's" comment on his 'singing in "The* Beatitude" at the .Melbourne Tiwn.Hall, last July:— "But the Jieavy artillery of blame should be reserved for Mr Philip Newbury. ■ He was the first solo voice heard in ' The Beatitude' at the opening of the prologue. Here a determined and appalling sound suddenly broke upon the affrighted air with the words, 'Night brooded then o'er the land.' The peculiar "trussed-turkey quality of his 'squawk is somewhat difficult of analysis. At times his throat appears to possess,the real ''rigor, mortis' rigidity, i and yet to be actively engaged in voice (production of an excruciating and persistent nature."

Invited to Dinner. -- Fritz Harfjxniusician and composer, was~ recalled at the request of Mr HoK man. £ Mr Holman: You invited Mr l Newbury to dinner on Saturday \ night f Yes. Did' you say to him, in the course oi w conversation, that a settlement of this' case could be arrived at?— No.' Or anything like tnatf —I said I personally wished a settlement, in order to save a well-known tenor's name from being published broadcast in cdnriection with this case. Did you say that Mr Baeyertz -ftas sorry, that he himself was not .personally responsible, that you '- thought a settlement could be arrived at, and Mr Newbury said to you a settlement could be arrived at on a certain payment, and you then said that you knew no payment would bo nTadef , His Honour asked counsel how this wpuld* tend to show bias, and Mr man did not persist in the matter. This closed the evidence. "No Sense of Dijury.", Dr Brissenden addressed the jury onbehalf of the defence. He submitted thaH plaintiff, in bringing his suit, was* actuated by no sense of genuine injury, either financially or; by way of general' repute, but solely by a feeling of wounded vanity. The refusal of Fullers' Theatre to engage him for a tour in New Zealand was the only instance furnished of any consequence resulting from tbe "Triad's" criticism. No single person of prominence in the musical world had been called to say that they would not engage the plaintiff, or that they would regard his reputation as a singer in the slightess,degree praj«dieed by what appeared'-in the "Triad."

'Counsel pointe'd out that, the plaintiff had failed to show that the newspaper was actuated by malice. At the time criticism appeared the defendants were unaware of the fact that plaintiff sung under the disability of a sore throat, and once the fact became known the newspaper voluntarily published an explanatory statement mitigating its previous criticism. •. Absence of Reeling. . As for the criticism itself, continued counsel, Mr Newbury admitted that he was not in his best voice. Mr Fritz Hart, director of the Conservatorium in Melbourne, a critic himself, ' had described plaintiff's singing on the occasion in question as unmusical and harsh, and that Mr Newbury and Mr Hart were friendly had been shown by the fact that they dined together on Saturday night. Indeed, a surprising feature in the case was the absence of ill-feel-ing between the parties to it. Counsel said he did nofr pretend that phrasing of the criticism was dignified —the use of the word "squawk" meant no'more than "harsh or unmusical"— but he claimed that the vigour of its terms did not deprive it of the right of fair criticism. Mr Sheridan, addressing the jury on behalf of the publishers of the' '' Triad,'' said there was no evidence to show that Mrs Scott (wife of a Melbourne University professor), who wrote the criticism, had ever met Mr Newbury, or bore him any ill-will. Mr Holman, replying on behalf of the plaintiff, said his complaint was not that the "Triad's" criticism was unfair, but that the newspaper made general statements regarding Mr Newbury's voice and its singing qualities which were not true. Had plaintiff's voice been the "squawk" described by the paper, would a musical body like the Melbourne Philharmonic Society have engaged him three weeks later to sing in its performance of "Caracitacus"? .

His Honour, in summing up, said the jpitic's work was sometimes difficult, and it. was easier to say pleasant things than disagreeable. Mr Hart's criticism (which appeared in a Melbourne paper) was marked by good taste, restraint and dignity. Could one say as much for the "Triad's" paragraph? Still that circumstance alone did not make the paragraph actionable. It was for the jury to say whether what was written amounted to fair criticism. The jury, after an hour's deliberation, returned a verdict for the plaintiff with £SOO damages. Mr Sheridan asked for a stay of proceedings. Plaintiff, he submitted, could not have suffered the damage awarded by the jury within tho short space of three months. He suggested that £IOO might be handed to Mr Newbury, and -the balance retained by the Court pending an appeal. Mr Fuller pointed out that Mr Newbury was going to America and ought not to be deprived of his verdict. His Honour: I grant the usual stay on condition that Ihe defendants pay to the plaintiff's solicitor £11)0 within eight days, and give security to tho satisfaction of the Prothonotary for judgment and costs on or before January 11.