NEWBURY v. THE TRIAD.

Sun (Christchurch), Volume VII, Issue 2143, 28 December 1920, Page 7

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, McMaster and Co.) for the "Triad"; and Mr Sheridan for the defendants, Samuel E. Lees, Ltd. r The plaintiff complained of this portion of the "Triad's" comment on his singing in "The Beatitude" at the ■ Melbourne Town Hall, last July:— "But the heavy 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, land yet to be actively engaged in voice (production of an excruciating and persistent nature." I Invited to Dinner.

Fritz Hart, musician and composer, was recalled at the request of Mr Holman. Mr Holman: Yon invited Mr Newbury to dinner on Saturday nightf— Yes. Did you say to him, in the course of conversation, that a settlement of this case could be arrived at!— No. Or anything like that! —I said I personally wisKed a settlement, in order to save a well-known tenor's name from being published broadcast in connection with this case. Did you say that Mr Baeyertz was sorry, that he himself was not person-, ally 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 be made? His Honour asked counsel how this would tend to show bias, and Mr Holman did not persist in the matter. This closed the evidence. / "No Sense of Injury." \ ' Dr Brissenden addressed the jury on behalf of the defence. He submitted that 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 Pullers' Theatre to engage him for a tour in New Zealand was the only instance furnished of any consequence resulting from the "Triad's" criticism. No single persen 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 slightest degree prejudiced by what appeared in the "Triad."

Counsel pointed 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 Feeding.

. 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 qftestion as unmusical and harsh, and that Mr Newbury and Mr Hart were friendly Jiad been shown by the fact that they dined together o'n 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 not 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 tlje 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 Mr Now/ bury's voice and its singing qualities which 'were not true. Had plaintiff's voiee 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 'MJaractacUs^'? His Honour, in summing up, said the critic'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 ]ftoceedirigs. Plaintiff, he submitted, could not have suffered the damage awarded by the jury within the short space of three mouths. He suggested that £IOO might be handed to Mr Newbury, and the balance retained by the Court pond-, ingan appeal. Afr Fuller pointed out that Mr Jjcir bury was noing to America and ought j not, to be deprived of his verdict. His Honour: 1 grant the usual stay on condition that the defendants pay! to the plaintiff's solicitor £IOO within eight days, and give security to the satisfaction of the Prßthonotary for judgment and costs on or before January I 14. " I