COUNSEL: Mr T Molomby SC - Appellant Mr R Stitt QC with Ms S Chrysanthou - Respondent
SOLICITORS: Appellant - Not applicable Dibbs Abbott Stillman - Respondent
CATCHWORDS: DEFAMATION – common law qualified privilege – reciprocity of duty and interest – matters complained of published in magazine dealing with matters concerning taxi industry – copies of magazine left for collection at places where general public had recourse – whether published on occasion of qualified privilege DEFAMATION – common law qualified privilege – whether defence referable to imputations DEFAMATION – common law qualified privilege – proof of malice – finding that publisher on campaign to publish persistent and negative statements about plaintiff – whether publisher’s ill will actuated publication of matters complained of
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Lindholdt v Hyer
Sign in free to access the full text
Details
AGLC
Lindholdt v Hyer [2008] NSWCA 264
Case
[2008] NSWCA 264
Decision Date
CaseChat Overview and Summary
The appeal concerned a defamation action brought by the respondent against the appellant. The dispute arose from the publication of articles in a magazine called "Cabbie," which dealt with matters concerning the taxi industry. The appellant contended that the publications were made on an occasion of common law qualified privilege, arguing that the magazine was distributed to individuals with a legitimate interest in the taxi industry, and that there was a corresponding duty and interest in receiving such information. The respondent, however, pleaded that the appellant was actuated by malice in publishing the articles, alleging improper motives, dislike, ill-will, and a campaign of denigration.
The central legal issues before the court were whether the publications were made on an occasion of qualified privilege at common law, and if so, whether the defence of qualified privilege was defeated by malice. Specifically, the court had to consider whether the reciprocity of duty and interest, a requirement for qualified privilege, was established, and whether the appellant's conduct, including the language used, the nature of the allegations, and the distribution of the magazine, evidenced malice. The court also had to determine if the appellant's ill-will towards the respondent was a motive foreign to the privileged occasion.
The court's reasoning focused on the issue of malice, acknowledging that a review of the primary judge's findings on this factual matter was subject to appellate restraints. The primary judge had formed an adverse impression of the appellant as a witness, and this impression influenced his conclusions on malice. The appellant did not challenge these factual findings on the grounds typically required for appellate intervention, such as incontrovertible facts or glaring improbability. Instead, the appellant argued that the primary judge erred in his application of legal principles, particularly regarding recklessness and the relevance of ill-will. The court rejected the argument that recklessness required a finding of wilful blindness, noting that the primary judge's conclusion that the appellant was actuated by ill-will was sufficient to establish malice. Furthermore, the court found no legal principle that would preclude ill-will, even if engendered by the subject matter of the publication, from being considered evidence of malice.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The jury found the February 2005 matter complained of conveyed the following defamatory imputations:(a)The plaintiff behaved in an irrational manner in that he commenced a frivolous legal action;(b)The plaintiff has sought to muzzle legitimate criticism of his conduct by resorting to a frivolous legal action;(c)The plaintiff relies on the fears of drivers of retaliation if they took a stand against him;(d)The plaintiff runs the taxi company, Premier, like a little Hitler, that is, in a dictatorial manner; and(e) The plaintiff is reacting to legitimate challenges to his hold over the taxi industry in an increasingly paranoid fashion.The primary judgment The appellant contended that the December 2004 and the February 2005 matters complained of were published on an occasion of qualified privilege at common law, in substance because:(a)each related to the behaviour of the respondent as managing director of Premier Cabs Pty Ltd;(b)“Cabbie” was a magazine directed to the affairs of the taxi industry and was distributed to taxi drivers and other persons with an interest in the affairs of the taxi industry; and(c)the matters complained of were published pursuant to a “social and moral interest and duty in publishing information about the taxi industry to those to whom the magazine was distributed who had corresponding interests and duty in receiving such information”. In his Reply, the respondent, relevantly, pleaded that the defendants were actuated by malice in publishing the matters complained of. He said they were actuated by improper motives and by their dislike of him and the ill will manifested in their publications. He relied on the “inflammatory” language used in each, the “extravagant allegations”, the “indiscriminate distribution”, the defendants’ failure to verify the accuracy of the information in the matters complained of and the allegation that information in them was false to the defendants’ knowledge. He also alleged malice in the publication of the matters complained of which he alleged constituted a campaign of denigration, demonstrating the defendants’ purpose was to injure him. In this respect he relied on the September and November 2004 articles, as well as articles published after the commencement of proceedings. After referring to the fact that reciprocity of duty and interest was an essential element of common law qualified privilege, the primary judge made the following findings:“66 The evidence shows that substantial changes have taken place in the taxi industry over the past twenty years. Whereas the taxi networks which provide services like motor vehicle conversion and maintenance and radio call facilities used to be co-operative societies whose members were the owners and operators of taxi plates, such networks these days tend to be incorporated. Those who operate taxis may not own shares in these corporations. Whereas years ago a person wishing to operate a taxi would first need to purchase a plate, these days a person may do so by renting a plate. Whereas co-operative networks used to comprise a small number of plate-owning members, they have become larger. Since it incorporated, Cumberland Cabs has increased the number of taxis it manages from two or three hundred to about nine hundred. Of all its plates, about two-thirds are owned by investors who neither operate nor drive the taxis to which the plates are affixed, but who procure Cumberland Cabs to manage the plates by letting them to operators. There are now about ten taxi networks in New South Wales. The number of radio call networks is about four, including agencies of Macquarie Bank, which have recently entered the market. One important effect of these changes is that whereas operators used generally to have an investment in the plate and, as members of a co-operative, in the body that provided the services they had to have, nowadays operators more often than not lack such a financial interest. Operators leasing plates from Cumberland Cabs have no more substantial interest than a lease terminable on twenty-eight days’ notice. Since operators have a less secure financial interest than formerly, the position of drivers who are not operators is likely to be correspondingly less secure than formerly. The industry has changed from one in which investor-operators co-operate to further their common interests to one in which investors and networks have some interests and objects in common with operators and some interests and objects which may compete with those of the operators. The trends I have described are true of Cumberland Cabs. The position is unlikely to be different in other networks. 67 Operators have substantial overheads. They must pay rent for the plates they lease. They must pay their networks fees for providing facilities for work on and management of motor vehicles and for radio call facilities. Insurance is dear. Overheads are likely to be at least $850 per week for a taxi.”
Ratio Decidendi
Legal Principle Established
That conclusion is sufficient to dispose of the appeal. However, against the possibility this conclusion may be incorrect, I consider the issue of malice.Consideration: malice Reviewing the primary judge’s conclusions on malice involves a review of a fact-finding exercise and, accordingly is subject to the restraints which govern appellate review in that context. There was substantial cross-examination of the appellant and it is clear the primary judge formed an adverse impression of him as a witness. His conclusions are influenced by those impressions and difficult to disturb absent identification of incontrovertible facts or uncontested testimony to the contrary, or a conclusion that the primary judge’s findings were glaringly improbable or contrary to compelling inferences: Fox v Percy (at [28] – [29]). The appellant does not challenge any of the primary judge’s findings on malice on any of these bases, merely his application of legal principles to his findings. Once it is recalled that his Honour concluded the appellant was actuated by ill-will in publishing the matters complained of, and that conclusion is not challenged, a challenge to his application of the law in my view is particularly difficult. Mr Molomby of Senior Counsel, who appeared for the appellant, first submitted that the primary judge’s finding of improper motive was erroneous because his Honour relied on recklessness and ill-will. He argued that recklessness requires a finding of wilful blindness, relying on Roberts v Bass. He noted that the primary judge found that the appellant had failed to make reasonable enquiry. He argued this constituted carelessness, not wilful blindness. He also argued that the primary judge’s finding that the appellant believed in the truth of the assertions was incompatible with wilful blindness. On my reading of his Honour’s judgment, he concluded the appellant’s ill-will was the principal state of mind actuating the publications. This conclusion was sufficient to found a conclusion of malice: Roberts v Bass (at [76]). His Honour’s observations about recklessness were made in relation to the earlier two articles. Secondly, Mr Molomby submitted that the primary judge erred in finding that the appellant’s dislike of the respondent was a motive or purpose foreign to the occasion of common law qualified privilege. He submitted that the appellant’s dislike of the respondent (that being the ill-will the primary judge identified) was incidental to the occasion conferring qualified privilege and could not therefore be evidence of malice. He was unaware of any authority which supported this proposition. In my view it should be rejected. Often the best, and only evidence of the publisher’s state of mind towards the subject of a publication will be found in the publication itself. There is no principle of law, in my view, which supports the proposition that because the conduct described in the publication has engendered the ill-will towards its subject, that state of mind should be ignored on the issue of malice.