Kallios v Yellow Cab Group Pty Ltd No. Scciv-02-800

KALLIOS v YELLOW CAB GROUP PTY LTD
[2002] SASC 357
Magistrates Appeal: Civil

MULLIGHAN J The appellant brought an action in the civil jurisdiction of the Magistrates Court for damages for defamation of him by an employee of the respondent. The action was dismissed and the appellant appeals against that judgment.
The respondent was a company which operated taxi cabs. The appellant was an accredited person driving taxi cabs under s 28 of the Passenger Transport Act 1994. He worked as a taxi driver for a taxi licence holder. Section 28 of the Act provides that a person must not drive a public passenger vehicle, which includes a taxi cab, for the purposes of a passenger transport service unless the person holds an appropriate accreditation under the Act. A breach of the section is an offence punishable by a Division 6 fine which is a fine not exceeding $4,000. Section 28(2) of the Act relates to the purpose of accreditation:
“28(2)The purpose of accreditation under this Division is -
(a)to attest -
(i)that the accredited person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle to which the accreditation relates; and
(ii)that the accredited person is considered to have sufficient responsibility, skills and aptitude to drive the vehicle or vehicles to which the accreditation relates -
(A)in accordance with the conditions under which a passenger transport service is operated; and
(B)in accordance with law; and
(b)to provide a scheme to facilitate the observance of appropriate standards by the drivers of public passenger vehicles; and
(c)to provide for any other matter prescribed by the regulations for the purposes of this section.
(3) The accreditation must specify the kind or kinds of vehicles and services for which it is appropriate.”
It may be seen that good repute and character are essential requirements for accreditation.
The appellant had been driving taxi cabs since 1981. In April 2000 he was driving a taxi cab in association with the Independent Group of taxis. His taxi, like many others, was fitted with a screen which printed messages from the Independent Group about matters relating to the operation of the taxi as well as personal messages for the driver.
On 13^th April 2000 the appellant was charged with a criminal offence and on the next day he received a letter from the Passenger Transport Board, set up under the Act, informing him that his accreditation as a driver had been suspended. On the same day the Board sent a message to the respondent as follows:
“On 14^th April 2000 the Passenger Transport Board suspended the driver accreditation of John Kallios.
I would be pleased if you would take steps to ensure that John Kallios does not drive a vehicle in your .........et [indecipherable] until further notice and to immediately inform me if there is reason to believe that John Kallios has not observed the suspension of his accreditation.
..............
Signed for Chris Melvin
Manager, Compliance Enforcement & Prosecutions Unit.”
At 1.18 pm and 5.01 pm on 14^th April 2000 the respondent broadcast a message to all taxi cabs operated throughout its agency as follows:
“PTB [Passenger Transport Board] notice:
accreditation for a John Kallios has been suspended; it is suspected he is still driving so please ensure he is not driving your car.”
The appellant pleaded that this notice was defamatory in that it inferred that the appellant was driving taxis when his accreditation to do so had been suspended. He further pleaded that it was reasonable to infer that he was contemptuous of his legal obligations and that the Passenger Transport Board, the accrediting authority, had reasonable grounds to suspect that he was so driving. He claimed $10,000 in damages.
The respondent denied that the notice was defamatory and that the pleaded inferences could be drawn from the notice.
The appellant also pleaded that he was not driving a taxi cab in breach of the suspension and there were no grounds to suspect that he had been driving. That allegation was also denied by the respondent.
The appellant was the only witness in his case. The respondent called Mr Sievers, who is the manager of the respondent and Ms Brown, who sent out the notice to the drivers of the taxi cabs associated with the respondent. The learned Magistrate found each of the witnesses to have been truthful. Apart from the factual matters which I have mentioned thus far, the learned Magistrate made the following findings. The appellant was not a driver in the respondent’s fleet and he was well known in the taxi industry in Adelaide. Mr Sievers received the message from the Passenger Transport Board and gave it to Ms Brown. She sent out the notice to taxi drivers associated with the respondent on two occasions on 14^th April which went to the respondent’s fleet of about 300 taxi cabs and probably a greater number of drivers but not to any other vehicles. Ms Brown made an honest mistake in compiling the text of the messages. These messages came to the attention of the appellant and other drivers. The appellant was distressed by the messages having been sent and seen by taxi drivers because they revealed that he was in trouble of some kind which attracted curiosity and gossip and also because he believed that the messages informed that he was driving in contravention of the suspension.
The learned Magistrate identified two questions for determination, namely whether messages sent by the respondent were defamatory and, if so, whether the respondent was protected by qualified privilege. The respondent did not plead qualified privilege but the learned Magistrate said that both parties agreed that it was a primary issue in the case and the trial was conducted as if qualified privilege had been pleaded. He approached the matter on that basis.
He found that the appellant had not been driving in breach of the suspension and that the statement that he was suspected of driving was untrue. The messages were defamatory of the appellant. He concluded that the assertion that it was “suspected he is still driving” carried the imputation that the appellant was driving in defiance of the suspension and that it would have diminished the appellant’s reputation in the minds of reasonable members of the taxi driving community. He also found that the messages excited curiosity and some controversy within that community and some associated embarrassment to the appellant, but he said that he suspected that the main cause of the curiosity was why the appellant had been suspended, rather than the possibility that he was disregarding the suspension. He said that he agreed with the categorisation by the respondent’s counsel of the messages as a “slight defamation”. The learned Magistrate found publication had occurred and that it was limited to the taxi cab drivers associated with the respondent and “at worst for the [respondent], the taxi driving community”, that the appellant had been engaged in that community for much of his working life and that his reputation in this community is important to him. The learned Magistrate also found that the compilation and the publication of the messages was due to an honest mistake and was not malicious.
Judgment was entered for the respondent because the learned Magistrate found that the publication of the defamatory statements was covered by qualified privilege. He concluded that the part of the messages which stated that the appellant had been suspended was covered by qualified privilege as the respondent was duty bound to take steps to ensure that drivers, whose accreditation had been suspended, not drive taxi cabs associated with the respondent. Section 29 of the Act provides for the accreditation of centralised booking services. The respondent is such a service and had received accreditation under the Act. Section 31 provides that accreditation is subject, inter alia, to conditions prescribed by regulations made under the Act. These regulations are the Passenger Transport (General) Regulations 1994. Reg 7 provides that the accredited person will ensure that a vehicle used for the purposes of a service (which includes a taxi service) is not driven in contravention of Division 2 of Part 4 of the Act which relates to the accreditation of drivers, including taxi cab drivers. The learned Magistrate referred to these provisions in his reasons for judgment and no doubt had them in mind when he concluded that the respondent was duty bound to take steps to ensure that taxi cab drivers, whose accreditation had been suspended, not drive any taxi cabs associated with it.
He went on to say that a message which informed taxi cab drivers of the appellant’s suspension and warned them that he was “not employed in their cabs”, clearly attracted qualified privilege. The learned Magistrate then identified the issue as to whether the remainder of the messages, including that it was suspected that the appellant was still driving, was also protected by qualified privilege. He concluded that it was not so irrelevant to the occasion of privilege that it loses its privileged character.
The grounds of the appeal are that the Court erred in concluding that the defamatory statement was protected by qualified privilege.
The first submission is that the messages should be considered in two parts, that which is in relation to the suspension of the appellant’s accreditation and that which relates to the suspicion that he is still driving. The first statement did not need to rely on its privileged character on account of it being true. The second statement is not covered by qualified privilege because it was not referrable or appropriate to the relevant duty which attracts the privilege: Adam v Ward [1917] AC 309 per Dunedin LJ at 329.
I do not think it is appropriate to separate the messages in this way. They were sent in consequence of the message received from the Passenger Transport Board. The respondent was obliged to inform the taxi operators associated with it of that message in its own interests and in the interests of the owners and the drivers. The owners could not permit a driver whose accreditation was suspended to drive their taxis. The respondent, in order to comply with s 31 and Reg 7, could not give work to such a driver. Clearly the messages were sent out by the respondent on an occasion of qualified privilege. The first part of the message could be regarded as defamatory, although true as it tends to lower the plaintiff in the estimation of right-thinking members of society generally: Sim v Stretch [1936] 2 All ER 1237 per Lord Atkin at 1240. To have accreditation suspended could have that effect. If the first part is to be regarded as defamatory, the respondent would have the defence of truth or justification as well as the defence of publication on an occasion of qualified privilege. I mention these matters for two reasons. The first is to show that the two parts cannot be regarded in isolation and secondly to show that the publication of each message was on an occasion of qualified privilege.
I follow the observation of Lord Dunedin in Adam v Ward at 328:
“Strictly speaking, it is the occasion on which a statement is made that is privileged, and the phrase that such and such a statement is privileged would be more accurately, though perhaps, more clumsily, expressed by saying that, the statement having been made on a privileged occasion, malice cannot be implied from defamatory expressions therein, but must be proved as a real fact. The malice to be proved must be real malice, and is generally called ‘express malice’ to distinguish it from the malice which is implied from the defamatory words themselves.”
In my view both parts of the message were given on an occasion of qualified privilege.
The second submission relates to malice. It is submitted that Ms Brown could not have formed an honest belief in the truth of the second part of the statement.
The question is then whether malice is established. The finding by the learned Magistrate that Ms Brown compiled the second part of the message by an honest mistake, presumably refers to its accuracy. He saw and heard her give evidence. As has been mentioned, he accepted her as a truthful witness. Although she was not inclined to accept that she had made a mistake, that is a matter which does not affect the learned Magistrate’s finding as to her credibility. She had misread or misinterpreted the “inform me if there is reason to believe that John Kallios has not observed the suspension of his accreditation” set out in the message from the Passenger Transport Board to the respondent by compiling the second part of the messages as “it is suspected he is still driving”.
In her evidence Ms Brown spoke of the need to condense messages received by the respondent, such as the subject message from the Passenger Transport Board into a version which would fit on to the driver’s screen in a taxi cab, which is limited in space. That is what she did when she prepared the impugned messages. In her evidence she maintained, incorrectly, that the impugned message was a fair reflection of the message from the Board.
There is no reason to doubt the finding of the learned Magistrate that Ms Brown had made an honest mistake. She had no reason to compile the message differently from how she understood it. The finding of the learned Magistrate was justified in the circumstances. She did not know the appellant and had never met him.
The appellant was not associated with the respondent and the respondent had no direct interest in him or whether he drove contrary to the suspension of his accreditation. Mr Sievers did not tell Ms Brown what to put in the messages. He told the learned Magistrate he did not know the appellant but he recognised his face in Court.
The evidence could not establish express malice on the part of the respondent. In Horrocks v Lowe [1975] AC 135, Lord Diplock, in discussing malice which results in the loss of qualified privilege, said at 149 that the maker of a statement:
“....... is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. ‘Express malice’ is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.
The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another .......”
He went on to say that what is required is positive belief in the truth of what is published, generally known as “honest belief” and then said at 150:
“If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true.”
The findings of the learned Magistrate prevent a finding of malice.
As I have mentioned, he found that the second part of the message had been compiled by an honest mistake. This finding establishes that there was no malice on the part of Ms Brown. The evidence of Ms Brown, which was accepted by the learned Magistrate, could not justify a conclusion that she was reckless in compiling the message. The learned Magistrate was correct in his conclusion that the publication was made without malice.
The appeal is dismissed.

[2002] SASC 357

26 November 2002