Peter John Hyer v Cabbie Pty Limited and Another

[2007] NSWSC 795

CITATION:	Peter John Hyer v Cabbie Pty Limited and Another [2007] NSWSC 795
HEARING DATE(S):	10 April 2007 - 18 April 2007
JUDGMENT DATE :	27 July 2007
JUDGMENT OF:	Barr J at 1
DECISION:	Verdict and judgment for the plaintiff against the defendants in the sum of $107,500.00. Defendants to pay the plaintiff’s costs, including the costs of the hearing before the jury, in an amount to be agreed or assessed. Grant liberty to the parties to restore the matter to the list on 7 days notice should material emerge which, in the opinion of any party, justifies a reconsideration of the costs order made.
CATCHWORDS:	DEFAMATION - defences - justification - whether defamatory imputations true - DEFAMATION - defences - whether defamatory imputations published on occasions of qualified privilege - DEFAMATION - defences - whether defamatory imputations published on occasions of qualified privilege - whether publications malicious - DEFAMATION - damages - interest.
LEGISLATION CITED:	Trade Practices Act 1974
CASES CITED:	Adam v Ward [1917] AC 309 Bashford v Information Australia [2004] HCA 5 Roberts v Bass [2002] HCA 57 Toogood v Spyring (1834) 1 CM & R 182 Triggell v Pheeney (1951) 82 CLR 497
PARTIES:	P: Peter John Hyer D1: Cabbie Pty Limited D2: Peer Lindholdt
FILE NUMBER(S):	SC 20455/2004
COUNSEL:	P: T Blackburn SC and S Chrysanthou D1 & D2: T Molomby SC/ R Rasmussen
SOLICITORS:	P: Dibbs Abbott Stillman D1 & D2: Not applicable

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

27 JULY 2007

20455/2004 PETER JOHN HYER v CABBIE PTY LIMITED AND PEER LINDHOLDT

JUDGMENT

1 HIS HONOUR: Following a trial by jury it was determined that the defendants had published material about the plaintiff that conveyed a number of defamatory imputations. I am to determine the issues raised by the defence and assess the plaintiff’s damages.

2 The second defendant, Peer Lindholdt, is a former taxi driver who in April 1999 began writing, designing and publishing a magazine called “Cabbie”. The magazine deals with matters touching the taxicab industry and is distributed free to taxi drivers and other interested persons. The business derives income from advertisements placed in the magazine. In 2003 Mr Lindholdt incorporated the first defendant, Cabbie Pty Limited, to publish the magazine, and it has done so ever since. For present purposes there is no significant difference between the defendants. Mr Lindholdt is the first defendant’s employee and does the work of the business. Although the defamatory publications were all made by the first defendant it did so because Mr Lindholdt controlled it and intended it to do so.

3 The plaintiff, Peter John Hyer, is a director of Cumberland Cabs Pty Limited, a company which operates a network of taxis in Sydney, and of Premier Cabs Pty Limited, which operates a radio call network for taxis. Cumberland Cabs manages taxi plates or licences. Those taxis ply under the name Premier Cabs. As well, Cumberland Cabs is an insurance agent, assists drivers or operators with finance and the fitting out of cars for use as taxis and is merchant for a system of credit called “Cabcharge”. Cumberland Cabs and Premier Cabs are owned and controlled by Adelhill Pty Limited. Mr Hyer owns, directly or indirectly, some eighteen per cent of the shares in Adelhill. He is a director of Cabcharge Pty Limited.

The matter complained of

4 When Mr Hyer brought his claim to this Court he was complaining about four articles published by the defendants. He was not completely successful before the jury, however. In September 2004 there was this article -

Hyer loses the Plot

Premier taxi king Peter Hyer finally lost the plot when he refused an operator a plate lease because he had in­sured his cab with Taxi Care Club.

When the operator showed him QBE authorised documentation as proof of in­surance Mr Hyer blew his cool claiming that it did not comply with Premier re­quirements.

Following the antics of Premier man­agement in recent weeks of derogatory comments and MDT warnings against shonky insurance offers, Taxi Care Club has finally had enough and is threatening Mr Hyer and Premier with legal action for "third line forcing", a formal complaint to the NSW Ministry of Transport and the ACCC.

Maybe finally the selfish greed of the NSW Mafia will be exposed for all to see. It has been a long time coming but it sure was worth waiting for.

5 The jury were not satisfied that the article conveyed any of the defamatory imputations pleaded.

6 In November 2004 there was this article -

Premiums finally crash in NSW

NSW's exorbitant cab Insurance premi­ums have been a contentious issue for many years. Why were we paying nearly twice as much as operators in other states?

When you decide to become a taxi owner you invariably need advice and guidance. Who better to rely on than your network? After all it has the exper­tise and knowledge. Well, that was 10 to 15 years ago when networks were co­ops and their mission was to look after their members. You didn't just join a network, you became part of a family. Bar a few minor exceptions this is all history. Today’s taxi owner is a source of rev­enue and profit, someone to be exploit­ed to the max. And, nothing has illustrat­ed this more than the insurance premiums charged by the brokerages owned by the major networks. In association with Zurich Insurance they set the outra­geous rates that other brokers followed. This cozy (sic) arrangement finally fell apart when the Taxi Care Club of Victoria only a few months ago entered the NSW mar­ket offering much cheaper rates.

Following a short but nasty campaign, especially by Premier Cabs, to discredit the Taxi Care Club, the two major play­ers, Cabsure and Transguard, were final­ly forced to adopt a different strategy to stay in business. They lowered their pre­miums, and considerably.

Henry, in 2001/02 paid Cabsure $4,730 for 'comprehensive' on a cab with a set­tlement value of $12,500. Last month, after getting a quote from the Taxi Care Club, he was offered a premium for a similar car of only $3,430 by Cabsure, a drop of $1,300. In a world where every­thing seems to be going up, this is quite remarkable. You could be forgiven for thinking that Henry had been screwed for years.

Never before has it been more important to shop around when buying insurance ­for your cab. You could save thousands, and only because a small taxi club from Victoria had the guts to challenge the Mafia in NSW. Isn't it nice for once to be a winner? There must be a lesson in here somewhere.

7 The jury were not satisfied that the article conveyed any of the defamatory imputations pleaded.

8 Those articles upon which Mr Hyer did succeed are as follows. After each of the articles published I shall set out the defamatory imputations found by the jury to have been conveyed.

In the December 2004 issue -

Publication
Peter Hyer going feral

The little "Hitler" running Premier Cabs in Sydney is not only losing the plot, he is also losing cabs by the score. It’s about time the bloke had an attitude transplant.
Monday morning 29 November 2004 Premier Cabs flashed a message on the MDTs to its fleet. It read something like “$1.45 booking fee reduced back to $1.10 by Ministerial order, effective immediately."
When we rang the Minister's office it knew nothing about it, other networks also didn't know. Maybe Peter Hyer has a private direct line to the Acting Director General Mark Duffy's office?
Booking fees were increased from $1.10 to $1.45 in April when the trial of "No Desto" commenced. The chief ad­vocate of "No Desto" was Peter Hyer, the Chairman of Premier.
When the Allan Cook Report suggested that the trial had been an abject fiasco and should be scrapped immediately, it is al­leged that Mr Hyer stated that he would defy any ministerial direction to do so.
When Minister Michael Costa an­nounced the end to the trial and that "No Desto" would be a matter for the networks to decide, Mr Hyer was elated. That is, we are informed, until a delega­tion of Premier operators confronted and told him that if he kept it on they would take their cabs elsewhere. Premier consequently was the first network to bring back "Destination".
Like a woman scorned Premier man­agement with glee announced the re­versal of the booking fee knowing it would cost its operators up to $150 to have another meter adjustment only four weeks after they had paid for one for the paltry 2.34% fare increase.
Why wasn't the change left for IPART to determine. Who organised to have it announced with such lightening (sic) speed when it took six month to approve the fare increase? Who really runs the MoT? Surely not Mr Hyer.

Imputations
(a) The plaintiff was running Premier Cabs Pty Ltd ("Premier Cabs") like a "little Hitler", that is, in a wild, unpleasant and dictatorial manner.
(b) The plaintiff was becoming increasingly irrational, in his management of Premier Cabs.
(c) The plaintiff in his management of Premier Cabs was becoming so irrational, that the company was losing cabs by the score.
(d) The plaintiff was an appalling manager of Premier Cabs in that he supported the "No Desto" trial even after it turned out to be an abject fiasco, and only ceased support for the scheme when a delegation of cab operators confronted him and told him that if he retained the scheme, they would take their cabs elsewhere.
(e) The plaintiff took spiteful pleasure in announcing the reversal of the booking fee, knowing that it would cost drivers up to $150 a to have another meter adjustment just four weeks after the drivers had had to pay for a meter adjustment for a paltry fare increase.

In the February 2005 issue -

Publication

Taxi Boss sues for Defamation

My Christmas present from Peter Hyer, managing director of Premier Cabs in Sydney and a director of both the NSW Taxi Council and Cabcharge, received on 22 December 2004, was a Supreme Court writ claiming he had been defamed in a number of articles in Cabbie, one titled "Peter Hyer going feral", another "Hyer loses the Plot" and finally "Premiums finally crash in NSW".

by Peer Lindholdt

In September 2004 Cabbie published a small article headed "Hyer loses the Plot” about allegations that Mr Hyer had refused to accept insurance covers from the new Taxi Care Club Ltd. The allegations were based on reports from a number of operators that Mr Hyer had threatened not to renew their plate leases if they insured with Taxi Care Club Ltd. They were not made by Cabbie. We simply reported them. We also reported that Taxi Care Club Ltd was considering suing Premier, which operates its own Insurance brokerage, for 'third line forcing' which is an illegal busi­ness practice.
But that's not all. Mr Hyer is also claiming aggravated damages for Cabbie's references to him as "going feral", "losing the plot" being a "little Hitler". He claims these refer­ences suggest he is becoming increasingly irrational, unpleasant and dictatorial in the way he runs his companies.
Cabbie never claimed he was 'becoming increasingly irrational". What is however irrational is his blatant attempt to, through frivolous legal action, prevent Cabbie from exposing the truth about the methods employed by the taxi industry mafia of which he is a high ranking member.
As for referring to him as "a little Hitler", which suggests he is running Premier like a dictator, there is plenty of evidence to support such an imputation.
Mr Hyer and his ilk in the Industry have for years relied on the fears by drivers, op­erators and staff of retaliation if they took a stand against their treatment. They knew their livelihood would be on the line. Cabbie, for the same reason, has in the past published a number of "apologies" to avoid defamation proceedings. Not this time.
That Mr Hyer and others on the NSW Taxi Council are becoming increasingly paranoid about the threats to their hold over the industry is well justified. Taxi drivers and operators have had enough of some the methods used by the mafla and they are beginning to take affirmative action and fighting back.
Dictator types, big or small, never know when to quit. Their egos won't let them. They hang in there until their 'empires' crumble, and crumble they always do.
The NSW Taxi Driver Association didn't emerge by accident. It was a long time coming, but as an association representing the grassroots of the industry it has already achieved what the mafia has always feared most, the acceptance and respect by Government ministers, leading bureau­crats and the media. The clean-up has commenced and soon the old slogan "Proud to be a cabbie" may again have a ring of truth about it.
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.
(e) The plaintiff is reacting to legitimate challenges to his hold over the taxi industry in an increasingly paranoid fashion.

9 The defendants have set up defences of Justification and Qualified Privilege. They assert that imputations (a) in the publication of December 2004 and (d) in the publication of February 2005 were substantially true, related to matters of public interest and were published on occasions of qualified privilege, and that the other imputations were contextually true and did not further injure Mr Hyer.

Justification

10 The defence of Justification, however formulated, depends on proof of the substantial truth of the imputations. Those which the defendants have undertaken to prove true are that Mr Hyer was running Premier Cabs “like a little Hitler”, meaning in a wild, unpleasant and dictatorial manner or in a dictatorial manner. There is, I think, no substantial difference between these imputations. There are three ways in which the defendants set out to prove truth, namely Mr Hyer’s conduct towards the operators of taxis in relation to the credit system called Cabcharge, his attitude towards operators who wished to insure with Taxi Care Club and his conduct in supporting the ”no destination” scheme of booking.

Cabcharge

11 The particulars of truth are pleaded as follows -

(a) at the time of publication of the first matter complained of, and for some considerable time previously, Premier Cabs Pty Ltd had Network by-laws in the following terms:

(i) "All Taxis must accept Cabcharge hirings, or any other form of credit/charge card as approved by Cabcharge Australia Limited or the Company from time to time. Each card has certain limits. Any fare over this amount must be authorised through the Query Operator or the payment will be rejected. All Taxis must have a fully operative EFTPOS terminal, logged on when plying for hire and conduct all credit/charge transactions via the EFTPOS terminal. Green emergency dockets must be carried and used only with prior permission of the Query Channel Operator."

(ii) "The PDC (Premier Disciplinary Committee) shall have the power, in relation to any breach of the regulations, to impose a fine of up to $1,500 upon, and/or to suspend or expel from the Network, a Member or Taxi Driver. "

(b) Premier Cabs Pty Ltd required as a condition of belonging to its network that operators agree to comply with the above Network by-laws.

(c) the imposition of the obligation to agree to comply with the above Network by-law (i) was third line forcing, and contrary to Sections 47(6) and 47(7) of the Trade Practices Act 1974 (Cth).

12 In about 1983 or 1984, before Mr Hyer joined Cumberland Cabs, a credit system called Cabcharge Pty Limited was established. Mr Hyer was not then associated with Cabcharge. Mr Hyer joined Cumberland Cabs, which was then a co-operative society and part-owner of a system of credit for patrons of its services called Taxi Credit. The Cabcharge system grew and attracted a substantial number of corporate clients and eventually Cumberland Cabs joined Cabcharge, which took over the existing Taxi Credit account. It is probable that Cumberland Cabs had by that time become incorporated. An agreement was made between Cumberland Cabs and Cabcharge that Cumberland Cabs would permit patrons who wished to pay by the Cabcharge system to do so. The term “Cabcharge” became incorporated in the livery of Cumberland Cabs’ taxis. Mr Hyer could not remember whether Cumberland Cabs became contractually bound to Cabcharge to permit payment by that means, but I think that there must have been some such firm arrangement or understanding. Speaking of the requirements between Cumberland Cabs and its own operators, Mr Hyer said this in chief -

Q. At the time Cumberland Cabs Cooperative started to accept Cabcharge was a rule put in place, an operational rule put in place about the acceptance or any requirement to accept Cabcharge in the cabs?
A. At the time there was, yes.

Q. And what in substance was the requirement of the cooperative?
A. That it was part of their network or their agreement with the cooperative in those days that they would accept Cabcharge because the Cabcharge logo was part of Cumberland Cabs on the side, part of the Cumberland Cabs logo, and also became part of the Premier Cabs logo as part of the Cabcharge.

and this in cross-examination -


Q. And you answered some questions I think from Mr Blackburn just before lunch about one aspect of this in your evidence. One such condition relates to a requirement by the operator to accept Cabcharge; is that correct?
A. That's correct.

Q. Is that condition part of a written contract with the lessee of the plate?
A. No.

Q. How then does Cumberland Cabs make the lessee of the plate aware of that condition if it is not in writing?
A. There is a rules book or a book of expected conduct, and that rule has been in there for many years.

…
Q. Is it a fact that for a very long period, more than 10 years, Cumberland Cabs has required of drivers, I'm sorry, of operators who lease a plate from that company, that they use Cabcharge?
A. It was a requirement in their rules, network rules which applied to everyone at that particular time, the rule was put in there that they accept the Cabcharge system.

13 Mr Hyer was uncertain about the respective dates of Cumberland Cabs’ incorporation and conversion to the use of Cabcharge. His final position was that incorporation came first.

14 Mr Hyer identified a document called “Premier Cabs Driver’s Handbook”, dated April 2004. It contains what are called Network By-laws, including these -

1 (a) The Regulations shall bind every Member who uses, or whose Taxi uses, and every Taxi Driver who uses the Radio Network.
(b) It shall be the responsibility of each member to comply with regulations at all times and to ensure compliance by each Taxi Driver who drives the Member’s Taxi. Ignorance of the regulations by any Member or Taxi Driver shall be no excuse.
(c) The Regulations shall operate from 1 April 2004.
(d) The Regulations may be amended by the Company from time to time.
…
9. All Taxis must accept Cabcharge hirings, or any other form of credit/charge card as approved by Cabcharge Australia Ltd or the Company from time to time. Each card has certain limits. Any fare over this amount must be authorised through the Query Operator or the payment will be rejected. All Taxis must have a fully operative EFTPOS terminal, logged on when plying for hire and conduct all credit/charge transactions via the EFTPOS terminal. Green emergency dockets should be carried and used only with prior permission of the Query Channel Operator.

…
17. The PDC shall have the power, in relation to any one breach of the regulations, to impose a fine of up to $1,500.00 upon, and/or to suspend or expel from the Network, a Member or Taxi Driver.

(PDC is elsewhere defined as Premier Disciplinary Committee)

15 Mr Hyer said that drivers were given the book at their induction course. There was this evidence -

Q. Despite the fact that the booklet says "published by Premier Cabs Pty Limited", you say that the contract was with Cumberland Cabs; is that right?
A. In relation to the lessee, yes.

Q. In relation to the lessee. And was the lessee told as part of that contract that any drivers that he got would be required to comply with the same conditions?
A. No, he is not.

Q. But the conditions that were given to the lessee as part of the lessee's contract were the conditions in this book that I am holding?
A. He was never given that book. He was given that book at induction when he became a driver. We have quite a few lessees who do not drive cabs, they just operate cabs.

…

Q. Anyone who drove had to do the course at which you say this handbook was provided to them; is that right?
A. That's what they get when they go to the course, yes.

Q. That was a course conducted at the company premises at Granville; is that right?
A. That's correct, yes.
…

Q. … but from around about 1990 when Cabcharge came from, from when Cabcharge came in have you said this rule was in the book?
A. Approximately to the best of my knowledge it would be there about that time.

Q. And you also said it would have been required of any driver who signed a lease last week?
A. Well, we go back to the driver that signed the lease would never have had that obligation in his lease. That's what I am saying. It is not in his lease. It was in a handbook handed to drivers.

Q. And it was required to be observed by all drivers, including lessee drivers?
A. Again yes …

16 Mr Hyer was asked whether he was familiar with something called “third line forcing” and there was this evidence -

Q. Do you have some understanding of what that means?
A. Yes, certainly.

Q. It means, doesn't it, to make a, it includes making a contract with somebody by which you require of the person as a condition of them getting what they are to get from you under the contract that they also get certain services from somebody else?
A. That's correct.

…

Q. Do you know in fact it is an offence under the Trade Practices Act to engage in that sort of conduct?
A. Yes, I would think it would be.

Q. For how long have you known that?
A. Probably several years, without going into it too much. Unless someone raises it I never raise it with anybody else.
…

Q. You said today before lunch that you knew that some companies had applied to the Trade Practices Commission for an authorisation to engage in that sort of practice?
A. That's correct.

Q. And you gave the names of Deluxe Red as it once was, Legion and RSL?
A. Yes.

Q. Deluxe Red later came to be called Combined, didn't it?
A. That's right.

…

Q. Was it your understanding then that without such an authorisation they were not entitled to engage in that practice?
A. No, it was not.

Q. Why did you think they needed the authorisation then?
A. My understanding was provided the authorisation was given, it was taken for granted, and quite a few other cab groups did the same thing, that it was common sense to let it run and it was never applied for on our behalf. It was accepted that it would be okay.

Q. I think you might have mistaken my question. My question was your understanding of the other companies' position, not your own. Are you with me? I will go back on it. It was your understanding then, was it not, that those companies, the ones you understood to have applied for and obtained the authorisation, were not entitled to engage in that practice unless they obtained the authorisation?
A. It was not my belief, no.

Q. It was not your belief?
A. I believed that it was quite in order to do what we were doing with the exemptions granted to the various other companies throughout Australia.
…
Q. You believed, didn't you, that those three companies, if they hadn't received those authorisations, would not have been entitled to require that of their operators?
A. In a sense, but can I just explain one thing because we are labouring here. I never in all the years I have been involved in the taxi industry at Granville had anybody say they didn't want to accept Cabcharge except one gentleman, so it was a system that was automatically taken for granted and the rule was left there under the assumption that the rule was granted to one organisation, granted to two and it was purely a rubber stamp facility, and quite obviously was an oversight. We probably could have done it but at the end of the day it wasn't going to make any difference. It was never used.

17 In asking these questions counsel was referring to s47 Trade Practices Act 1974 which, relevantly, is as follows -

(1) Subject to this section, a corporation shall not, in trade or commerce, engage in the practice of exclusive dealing.

…

(6) A corporation also engages in the practice of exclusive dealing if the corporation:

(a) supplies, or offers to supply, goods or services;

(b) supplies, or offers to supply, goods or services at a particular price; or

(c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the corporation;
on the condition that the person to whom the corporation supplies or offers or proposes to supply the goods or services or, if that person is a body corporate, a body corporate related to that body corporate will acquire goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the corporation.

(7) A corporation also engages in the practice of exclusive dealing if the corporation refuses:

(a) to supply goods or services to a person;

(b) to supply goods or services at a particular price to a person; or

(c) to give or allow a discount, allowance, rebate or credit in relation to the supply of goods or services to a person;

for the reason that the person or, if the person is a body corporate, a body corporate related to that body corporate has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the corporation.

18 The authorisations referred to had been obtained from the Trade Practices Commission or perhaps the Australian Competition and Consumer Commission under s88 of the Act.

19 There followed attempts by interested persons to have the authorisations set aside. On 11 March 2005 the Australian Competition and Consumer Commission refused to do so but on 27 June 2006 the Australian Competition Tribunal did so. The judgments of those bodies are exhibits U and V respectively.

20 It was common ground that Cumberland Cabs had not obtained any authorisation permitting activity that would otherwise be in breach of s47. When asked, Mr Hyer explained the reason why there had been no application in these words -

A. The only thing I could suggest was the secretary manager of the day would have thought that it would be okay to go with the other groups as if it had been approved for one it would be approved for all.

21 Later in his evidence, having apparently come to the view that Cumberland Cabs had been incorporated by the time it converted to Cabcharge, he gave the evidence extracted above, justifying the by-law by his belief that it was in order to do what Cumberland Cabs was doing because of the authorisations granted to those networks that had applied for them.

22 Mr Hyer also said that when the other networks made their applications they were of a substantial size and Cumberland Cabs was fairly small, also that there were other networks that did not apply for authorisation though they maintained rules like by-law 9. Mr Hyer said that the network never actively tried to enforce by-law 9, whether by the use of by-law 17 or otherwise. He said that only one driver had objected to accepting Cabcharge patrons and that Cumberland Cabs had not made an issue of it but had permitted him to act as he wished. Mr Hyer said that credit patrons amounted to about forty per cent of taxicab users and cash patrons to about sixty per cent. He said that it was uneconomic for any driver to refuse to accept credit passengers. The evidence established that a driver received the amount on the meter regardless of whether the patron paid in cash or credit. Patrons paying by credit were charged a loading for that service, of course. In recent times drivers have been receiving a small surcharge where patrons have paid by credit.

23 Mr Molomby criticised the evidence and motives of Mr Hyer, who first explained the absence of an application for authorisation by reference to the probable belief of the secretary/manager of the co-operative at the time and then, having realised that Cumberland Cabs must by then have been incorporated, by reference to his own belief. The existence of the belief itself was challenged as not rationally consistent and cavalier. Then Mr Molomby drew attention to the form of by-law 9 which was still in existence at the time of the hearing in April 2007, even though the Australian Competition Tribunal had set aside the authorisations in June 2006. Given the importance of the matter, it was submitted, the continued existence of a rule nearly a year after revocation, especially, as was the case, where Cumberland Cabs had itself made a submission to the Australian Competition Tribunal, was indicative of someone who had a disregard for the law and was used to getting away with things.

24 Mr Molomby also drew attention to changes in the sizes and composition of the various taxi networks in Sydney from time to time. While it might have been accurate, as Mr Hyer said, to call the three networks who applied for authorisations substantial and Cumberland as smaller, the position became quite different as time went by. By the time of the applications to set aside the authorisations Cumberland Cabs was the second largest network, yet it had never sought an authorisation, even though it contended for the maintenance of the status quo in the applications before the Australian Consumer and Competition Commission and the Australian Competition Tribunal. The contention of a belief that if a few networks had authorisations it would be alright for Cumberland Cabs to continue to operate without one should not be accepted. At least, it was further evidence of the cavalier attitude contended for. There had been no proper explanation for the delay, once the authorisations had been set aside, in removing the by-law from the Driver’s Handbook.

25 Mr Molomby submitted that there was an inconsistency between the position taken by Mr Hyer that by-law 9 was not enforced and the fact that Cumberland Cabs contended before the Australian Consumer and Competition Commission and the Australian Competition Tribunal that authorisations ought to stand. Mr Molomby submitted that Mr Hyer’s explanation that no issue had been forced between Cumberland Cabs and the protesting taxi driver was glib. The fact was that the driver had to drive a taxi bearing the “Cabcharge” logo. It would be impossible in practice to segregate intending travellers so as to divert elsewhere those wishing to pay by Cabcharge. Mr Molomby pointed to the usual conditions of lease between Cumberland Cabs and the operator, which was terminable on twenty-eight days notice in writing without attribution of reasons. An operator running the risk of being effectively summarily dismissed was equally effectively discouraged from raising any objection. It was therefore not surprising that the only evidence was that one driver had done so.

26 The modern taxi industry is one that attracts investors. Taxi licences or “plates” sell on the open market, but those who purchase them do not necessarily operate or drive the taxicabs to which they become attached. It is common for investors owning one or more plates to have networks like Cumberland Cabs manage them. Out of almost nine hundred plates in its current fleet, Cumberland Cabs manages some six hundred such plates for investors, letting them to operators who take on the opportunity and responsibility of providing a taxi and running a business by the use of it. Even operators are not necessarily drivers, and operators who drive taxis whose plates they own or lease may also take on drivers to do shifts that the operators are unable or unwilling to do. So a person might be all or any of an investor, an operator and a driver.

27 Mr Hyer’s evidence was that the requirement to accept Cabcharge as in by-law 9 was one made of drivers and of nobody else. It was no part of the terms of any lease between Cumberland Cabs (on behalf of the investor) and any operator. It was on this evidence that Mr Blackburn, for Mr Hyer, submitted that particular (b) – that Premier Cabs Pty Limited required as a condition of belonging to its network that operators agree to comply with the by-laws – had not been made good. Any requirement of the by-laws, he submitted, was only of drivers.

28 In my opinion there is no substance in that submission. There was no evidence about the numbers respectively of operators and drivers or of how many, if any, operators do not drive at all, but plainly many operators must at least some of the time drive the taxis they operate. For such persons, a requirement that a driver comply with by-law 9 amounts to a requirement that they, the operators, comply with it. And effectively, by-law 9 binds even operators who do not drive, because if it has any effect at all it will discourage them from engaging drivers who run the risk of denying themselves the services offered by the network.

29 In my opinion Premier Cabs Pty Limited did require operators to comply with the by-laws, either because they were drivers or because if they engaged drivers who were not prepared so to comply, their businesses would be denied the services without which they could not operate.

30 Mr Blackburn’s alternative submission was that even if the by-laws constituted a breach of the provisions of s47, that did not prove the substantial truth of the imputation. First, Mr Hyer should be accepted in his assertion that he believed it permissible to have by-law 9. Moreover, it was submitted, maintenance of the Cabcharge system, whether by by-law 9 or otherwise, conferred great benefit on drivers and operators alike. Mr Blackburn referred to the forty per cent or so of patrons who paid by that method and to the evidence of unprofitability of a taxi business that was not prepared to use that system. Mr Blackburn referred to the reasons expressed by the Australian Competition Tribunal for setting aside the authorisations. He pointed out that the authorisations were to permit the imposition of penalties for breaches of rules of networks. The real reason why the Tribunal set aside the authorisations was that the provision of credit facilities had become so widespread in the taxi industry that drivers could not really refuse non-cash payments: see para [50] of the Tribunal’s reasons.

31 I think that these submissions should be accepted. I accept Mr Hyer’s explanation for the reason for maintaining the by-laws including by-law 9 and at the same time not applying for authorisation. The authorisations were commonly granted in the taxi industry in New South Wales and in other States and there seems no reason to think that any further network applying for a similar authorisation would not have been granted one. There was no direct evidence to this effect, but I think that Mr Hyer probably thought that if Cumberland Cabs bothered to apply, it would receive a grant accordingly. However that may be, his attitude to his business and his legal obligations was lax.

32 I do not think, however, that there was any inconsistency between the maintenance of the by-law and the failure to apply for authorisation or any support given by Cumberland Cabs to those seeking to maintain the status quo in the Commission or the Tribunal. I see no inconsistency with the continued form of the Driver’s Handbook some ten months after the setting aside of the authorisations. Cumberland Cabs was not required to withdraw the book and reprint it immediately. Ordinary business standards may be permitted to prevail. What was required was that Cumberland Cabs should not attempt to enforce the by-laws and there is no evidence that it did.

33 Notwithstanding the demonstrated inappropriate attitude of Mr Hyer and his organisation to the requirements of s47 and the inappropriate maintenance of by-laws which included by-law 9, there is no evidence of the truth of the imputation. None of this material persuades me that Mr Hyer conducted his business in a wild manner. None of it persuades me that he conducted it in an unpleasant manner. None of it persuades me that he conducted his business in a dictatorial manner. His tolerance of the protesting driver and his eschewing any attempt to deal with him by application of the by-laws tends to show the opposite. I take into account also the evidence of Mr Thomas, a taxicab driver for a period of thirty-two years and an operator for twenty-four of those years, who has driven for the Cumberland network and knows Mr Hyer and people who know him. He says, and I accept, that Mr Hyer’s reputation in the circles in which Mr Thomas moves is of a fair and approachable man.

Taxi Care Club insurance

34 The particulars of truth are as follows -

(d) Cumberland Cabs Pty Limited manages a number of taxi plates on behalf of owners who are not themselves operators.

(e) in or about 2003, Taxi Care Club began offering insurance to taxi operators in New South Wales.

(f) the rates at which Taxi Care Club was offering insurance were substantially below those of the existing insurance providers in the market.

(g) Premier Cabs on several occasions refused to accept insurance policies taken out by operators with Taxi Care Club.

(h) the effect of the refusal by Premier Cabs was to force the operators to cancel their insurance with Taxi Care Club and insure at greater cost with one of the insurance providers already established in the market.

35 The Ministry of Transport required operators of taxis to have them insured. Accordingly, lessee operators of taxi plates were obliged by the terms of their leases from Cumberland Cabs to insure their taxis. It may be accepted that at the time of these articles insurance premiums for taxis in New South Wales was higher than in other parts of Australia and that Taxi Care Club of Victoria was trying to break into the Sydney market, offering insurance for substantially less than was charged by other insurers. One of the insurers in the Sydney market was Zurich. Cumberland Cabs had an interest in an insurance brokerage called Transguard. Transguard used to direct insurance to Zurich and to receive commission on insurances so arranged. A number of lessees in the Cumberland Cabs network arranged insurance with the Taxi Care Club of Victoria but were told that it was unacceptable. It may be accepted that Mr Hyer was responsible for the network’s attitude. These were the events which precipitated the publications of September and November 2004.

36 Mr Hyer gave evidence about the circumstances in which lessees were told that Taxi Care Club insurance was not acceptable. Mr Bessier, the Operations Manager at Cumberland Cabs and a former officer of the Ministry of Transport, told him that in his opinion a certificate of currency of insurance of the kind being offered by Taxi Care Club was insufficient to meet the Ministry’s requirements. Exhibit R is an example of such a certificate. It names the owner of the vehicle insured but describes the insured thus -

Taxi Care Club and nominated owners.

37 Mr Hyer asked Mr Bessier to consult the New South Wales Taxi Council, a body representing the taxi networks. Mr Bessier did so and spoke also to Mr Simpson, Head of Policy at the Ministry. Mr Bessier reported back to Mr Hyer, telling him that Mr Simpson had said that there had to be an individual, not a group, policy for each taxi. Mr Hyer spoke to Mr George Karas, who was promoting Taxi Care Club insurance, and Mr Ramshaw of the New South Wales Taxi Council. Mr Hyer referred to the certificate of currency Mr Bessier had mentioned and asked Mr Karas whether he would supply an individual policy to cover that particular taxi. Mr Karas said that he did not need to supply a policy and that a certificate of currency, presumably the one in the form that Mr Hyer had, was sufficient. Mr Hyer never did receive from Mr Karas any individual policy of insurance as opposed to the certificate of currency about which he had asked Mr Karas.

38 On 1 September 2004 Mr Ramshaw wrote a letter to Mr Hyer which included the following passages -

I have had a phone call from George Karas. During the conversation he mentioned that he was having a dispute with you, and alluded to some claims he alleged you had made about his mutual aid scheme.
You might find the attached helpful in perhaps lending support to any claims you may wish to make about mutual aid schemes.
In particular, APRA considers them “unreliable”, “inherently flawed”,” ultimately unsustainable” etc

39 APRA is the Australian Prudential Regulation Authority, a Commonwealth body set up to supervise the activities of licensed insurers.

40 In addition, on 10 September 2004, Mr Hyer received from Mr Simpson at the Ministry a copy of a letter sent by e-mail to solicitors representing interested persons. It contained these passages -

It is apparent that there has been some misunderstanding as to the Ministry's requirements in this regard so I have itemised them hereunder in order to make it quite clear about what is needed and, hopefully, to obviate the need for any further correspondence in the matter.

1. The licensee or operator of a taxi must maintain a separate third party property damage insurance policy in respect of each licenced taxi.

2. A separate policy (not just a certificate) must be issued by the authorised insurer (not a club, group or other third party) in respect of each taxi.

3. A policy covering more than one taxi is not acceptable.

4. The policy must be maintained with a corporation authorised under the Insurance Act 1973 (Cwlth),

5. The policy must be issued specifically and only in the name of the licensee or operator of the taxi (and not in the names of a club, group or other third party).

6. The policy must provide cover of at least $5,000,000 and must fully indemnify all drivers authorised to drive the taxi (including any excess payable on a claim).

7. Evidence from the authorised insurer that the policy is current must be carried in the taxi at all times.

8. If an audit is carried out by the Ministry on the records of an operator and it is found that the requisite policy for any taxi is not on foot this is sufficient for the Ministry to cancel the licence for the taxi concerned.

41 As a result of this correspondence Mr Hyer came to the view that the proffered certificate of currency did not meet the Ministry’s requirements. And there was another matter that troubled him. The excess on the Taxi Care Club policy was $15,000.00 per vehicle, which he regarded as exceptionally high. He was concerned that if an impecunious operator were unable to meet an uninsured liability of as much as $15,000.00, the loss might fall on others, perhaps the owner of the plate or the network itself. But his principal concern seems to have been that an operator having such insurance ran the risk of seeing the licence cancelled in accordance with point 8 of Mr Simpson’s letter.

42 Mr Lindholdt was asked about the sources of his information. They were confined to those promoting Taxi Care Club insurance and drivers who were disaffected by the network’s refusal to accept them. Mr Lindholdt said that Mr Karas, his lawyer and his insurance broker had told him that there was nothing illegal about the cover proposed and he accepted what they said. He accepted at first that there had been a problem with the insurance in that the Ministry required the issue of individual policies. Later in his evidence, however, he went back on that concession, relying on what he said were e-mails and correspondence between Taxi Care Club, its lawyers, its broker and the Ministry of Transport. He identified one such document, a letter written by a solicitor on 22 September 2004. The tender of the letter was rejected but I have no doubt that the problem of the group policy was overcome.

43 Although Mr Karas declined to furnish Mr Hyer with an individual policy as requested, I think that individual policies must have become available, though the evidence does not enable me to say when. That is in my opinion the only reasonable explanation of what I take to be a change in Mr Hyer’s attitude. As I have said, one of his concerns was the high excess and the resulting risk for impecunious lessees, but Mr Hyer’s overwhelming objection was that the group policy failed to meet the Ministry’s requirements. Yet Mr Hyer gave evidence that he distinguished between owners and lessees. He thought that the former could look after themselves, and so was prepared to countenance Taxi Care Club policies for them, but that lessees needed protection. He could not have countenanced the acceptance of policies for owners which did not meet the Ministry’s requirements, so he could only have drawn the distinction he did because he had come to accept that individual policies had become available which met the criteria mentioned in Mr Simpson’s letter. So his only remaining concern must have been the high excess.

44 On all the evidence I am satisfied that in rejecting Taxi Care Club insurance in the first place Mr Hyer was intent on ensuring that the requirements of the Ministry were met and that operators were protected. Even after the problem of the group policy was solved he continued to reject Club polices for lessees in order to give them the protection he thought they needed. I am not satisfied that Mr Hyer’s concern in rejecting the insurance was to “stand over” operators, as Mr Lindholdt would have it. I would not infer that he did so in order to protect his own business interests in Transguard. I accept his evidence that the network accepted insurances affected by other channels.

45 Mr Molomby submitted that Mr Hyer should not be accepted in his statement of the belief that one of the consequences of the high excess might be that the loss should fall on others, including the network. I do not think that this criticism is warranted, Mr Hyer is not a lawyer. I think that he was telling the truth.

46 I am satisfied that Mr Hyer acted as he did for the reasons he put forward. I note the evidence of Mr Thomas that he was regarded as a fair man. It is possible, I think, to see Mr Hyer’s attitude and actions towards lessees as paternalistic, even wrong. But none of this evidence establishes that he was wild, unpleasant or dictatorial in the conduct of his business. There is no justification for Mr Lindholdt’s having called him a “little Hitler”.

The “no destination” trial

47 There is one particular of truth, namely -

(j) the plaintiff was a supporter of the “no destination” scheme, by which the destination was not passed on as part of a radio booking, which he knew was contrary to the wishes of taxi operators and drivers.

48 Before the events of 2004, taxi drivers were entitled when offered a job over the radio to be told the intended destination and, with that knowledge, to decide whether or not to accept the booking. A proposal was put forward that when offering bookings radio operators should cease announcing the intended destination. The intention was that any driver accepting a booking would be obliged to carry the patron to the required destination. (Under the Ministry’s regulations, it was not every booking that a driver was expected to fulfil, and there were some exceptions, for example, if the passenger appeared to be unable to pay, if the carriage was to a place outside the driver’s ordinary geographical area of work and the like, but those matters do not need to be considered for present purposes).

49 There was a good deal of controversy about the proposal. Some or all of the taxi networks favoured it. Cumberland Cabs favoured it and Mr Hyer strongly supported it. The reasons, shortly, were as follows. It would give the public a better service. A radio call would invite carriage from a particular starting place and the taxi closest to that place and available for hire would accept the booking. So waiting time for the public would be minimised. That would produce a direct saving and would enable networks to comply more readily with standards maintained by the Ministry for the speedy fulfilment of requests broadcast by radio. It would also enable networks to employ fewer telephone staff, resulting in a further saving.

50 There was a related matter, namely a practice drivers had developed of sub-contracting accepted jobs to drivers of their own choice without the knowledge of the taxi networks.

51 The proposal did not have the support of drivers generally, however, and most seem to have opposed it. Drivers were entitled to accept work from sources other than their radio network bookings and many did, for example, by means of their own mobile telephones and otherwise. Many had regular bookings from valuable patrons and they did not wish to let them down. These appear to be some of the reasons why drivers made arrangements with colleagues that they would accept jobs on casual referral as needed. Such collaborations were called Trunk Groups. The drivers created them so that they could continue to service regular customers and at the same time hold themselves open to accept work from the networks to which they were paying substantial fees. The networks did not like Trunk Groups because the result often was that when a patron called a particular network and the network accepted the call, the job was carried out by a driver and a vehicle not associated with that network. Mr Hyer suspected that some drivers in Trunk Groups were not licensed to drive taxis.

52 The no destination scheme would oblige drivers to carry out any booking accepted regardless of the time the job would take. Drivers saw that as threatening their ability fully to utilise their time. If a driver were offered a job, say, an hour before he was due to commence a regular job, how could he accept it, not knowing how long it was likely to take? It might cause him to let down his valued patron. So he would have to refuse it.

53 The different views were aired and the Ministry of Transport decided to introduce a scheme, but only for a trial period. The set fee for radio bookings was increased by thirty cents for the duration of the trial to compensate drivers for losses so incurred during that period.

54 On or before 8 April 2004 the Acting Director-General of the Ministry wrote to the New South Wales Taxi Council a letter including these passages -

I refer to the NSW Taxi Council's letter of 4th February 2004, and the subsequent meetings of the No-Destinations Consultative Group, specifically of 26th February 2004, regarding the trial of the No-Destination booking system.

The trial of the no-destinations booking procedure is to commence on Wednesday 21st April 2004, and will continue for a period of 12 months, unless terminated by the Ministry of Transport by notice in writing.

In response to the Taxi Council's letter of 4th February 2004, attaching the New South Wales Taxi Council "No Destination Calling Trial Proposal, dated 4th February 2004, I am able to advise that the Ministry of Transport's (MOT) response is as follows:

- The booking procedure as outlined is noted.

- The reviews are to occur on a monthly basis for the first quarter, and then as agreed between the parties.

- The exemptions, with the exception of "dangerous locations", sought by the NSW Taxi Council are noted subject to the following:

- They are not used by any of the Sydney Metropolitan Taxi Networks (SMTN) to undermine the integrity of the trial

- That the details of the exemptions are examined during each review.

- The MOT may disallow an exemption or should evidence come to hand that they are being used to undermine the trial

In regard to the "dangerous locations" exemption that you seek, I wish to advise that the MOT does not agree to this request. The determination of a `dangerous location' is considered to be highly subjective, and unless there is immediate and prima facie evidence that would indicate that there is a threat to drivers, it would be inappropriate to label a specific location as 'dangerous'. To arbitrarily do so would deny the residents of that location an essential transport service.

I also wish to emphasise that, should the SMTN receive information that would indicate that the drivers could be placed at risk if it passed on a booking, then the SMTN should take all appropriate action to ensure that the driver is not placed in this situation. The MOT does not, however, consider that by merely passing on the destination of the booking, the SMTN have abrogated their responsibility under their duty of care in this regard.

In relation to unauthorised networks, and specifically trunk radios, the MOT views this matter as being separate in relation to the trial, however, as previously stated, the MOT is working towards addressing this wider problem. This includes the introduction of regulatory amendments that will make the use of unauthorised transmitting equipment illegal, and will allow the Ministry to more effectively deal with the illegal practice of drivers passing booking amongst themselves. These measures will take effect from 16th April 2004, and the MOT will undertake a series of operations to ensure compliance with the new regulations.

While I note that the NSW Taxi industry has expressed concern regarding no-destinations, the MOT believes that the responsibility for service delivery is shared between all parties involved in this trial. In this regard, the MOT is encouraged by the commitment of the industry to "work with the best intent and diligence" to support this initiative.

I also seek your earliest response to the draft key performance indicators that were sent to you on 12th February 2004 as the MOT will be seeking this information from the SMTN at the end of March 2004.

As a final matter, the MOT also requests the assistance of the NSW Taxi Industry in disseminating information to taxi drivers regarding the conduct of the trial. The MOT believes that the SMTN are best placed to do this through their regular contact with the drivers. The MOT will also be conducting forums with representative drivers, as well as providing written material to assist in this regard.

55 On 8 April 2004 the New South Wales Taxi Council sent a letter to networks which included these passages -

We have received the attached advice from Ministry of Transport finally confirming the introduction of new, regulations on 16th April to curb trunk radios with the commencement of the no destinations trial to follow on 21st April.

The Minister will be making an announcement about the above so the information should be treated in-confidence until it is made public.

It is expected that the media is likely to seek out divisions regarding these issues so it will be very important to ensure that any media inquiries are directed to Tracey Cain at Strategic Issues Management ph. [phone].

We also believe that MoT is likely to be authorising an increase in the booking fee to $1.40 (for Sydney, Wollongong and Central Coast) to take effect from 21st April. We are awaiting final confirmation and are printing temporary supplementary labels to have placed in taxis regarding the new booking fee.

56 The trial went badly and in September 2004 an interim report was written making certain recommendations. The Minister stopped the trial. On 26 September 2004 the Acting Director-General wrote to the New South Wales Taxi Council, Mr Hyer and, presumably, the heads of the other networks a letter in these terms -

As you are aware, the Minister for Transport Services, the Hon Michael Costa has announced a package of reforms for the NSW taxi industry. These reforms are in response to the recommendations arising from the Interim Report of the Review of the NSW Taxi Industry, which was completed in September 2004. A copy of the, Minister's press release is attached.

In accordance with the Minister's announcement, the no-destination trial is to cease immediately. Networks are to determine the most appropriate booking dispatch method for their operation. Attached is a determination formally revoking the Notice of Determination of a Service Standard issued to all networks on 3 May 2004.

As you will recall, at the time this trial commenced, the then Director General authorised a $0.30 increase in the radio booking fee for the duration of the trial. In accordance with the public commitment made at that time regarding the arrangements pertaining to the cessation of the trial, I have authorised the removal of this $0.30 fee. This will reduce the radio booking fee from $1.45 to $1.15.

Consistent with arrangements for implementation of the annual fare increase, a three week period will be allowed for the installation of new customer information stickers and adjustment of meters, if required. Accordingly, all taxis must have taken all necessary action by 17 December 2004. The authorisation notice will be published in the Government Gazette to reflect these arrangements.

57 Mr Hyer conceded that drivers were opposed to the scheme, but said that some were happy with it. Those who had formed Trunk Groups were not. He said that the desire was to achieve the efficiencies and consequent savings of costs which I have summarised. It was not to put an end to Trunk Groups. Although he was opposed to them, they were a separate matter. He conceded that the scheme would affect drivers in the way I have summarised. He conceded his strong support for the scheme and was still of the opinion that the trial ought not to have been stopped. He would support such a scheme now.

58 The defence submissions came down to this. The scheme was likely to injure drivers by effectively denying them work offered within the critical time before a contracted engagement. Although Mr Hyer acknowledged in cross-examination that there would be an effect upon drivers, he had no real recognition of what it meant for them. It was destructive. His support of the scheme was the act of a man used to getting his own way.

59 An attack was made on Mr Hyer’s credibility. He had been asked about Trunk Groups and had said that one effect of them was that no record was kept of which driver and which taxi was ultimately used to complete any particular job. The Ministry, he said, required such a record for the purposes of following up reports of lost property and the like. Mr Molomby pointed out a report, which may be accepted, recording that some fifty-six per cent of taxi journeys commence not with a radio booking at all but with a hailing in the street or at a taxi rank. So for more than one-half of all taxi journeys there is no record of which driver and which car carried any particular passenger.

60 These criticisms may be justified, but I do not think that they assist the defendants. The question of Trunk Groups was really separate, as Mr Hyer said, and I accept that his enthusiastic support was given with the intention of achieving savings and giving the public a better service. Some might see his attitude as cool, concerned more with overall efficiencies than with the loss those efficiencies might produce for some individuals. Some might disagree with him. But these are matters for judgment of a kind that businessmen are often required to make, and it is difficult to see how this evidence justifies a description of Mr Hyer as a “little Hitler”, meaning that he was conducting his business in a wild, unpleasant and dictatorial manner.

61 Since none of the matters particularised proves the truth of the imputation, and since they do not do so in combination, the defence of Justification fails.

62 No question arises as to the contextual truth of the remaining imputations.

Qualified privilege

63 In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not-restricted the right to make them within any narrow limits: Parke B, delivering the judgment of the Court in Toogood v Spyring (1834) 1 CM & R 182 AT 193.

64 Qualified privilege arises at Common Law where the person who makes a communication has an interest or duty, legal, social or moral, to make it to the person to whom it is made and the person to whom it is made has a corresponding interest or duty to receive it: Adam v Ward [1917] AC 309.

65 The reciprocity of duty or interest is essential: Adam v Ward; Bashford v Information Australia [2004] HCA 5 at [9].

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.

68 As the publications the subject of Mr Hyer’s complaint show, substantial change continues to be made in or to be contemplated for the taxi industry. This case is concerned with three important such topics, namely the development and management of credit systems and competition between them, the cost and availability of insurance and the desire for and the opposition to “no destination” radio bookings. The evidence of the magazines published by the defendants and the messages and assertions passed on to Mr Lindholdt by persons engaged or employed in or associated with the taxi industry show that there is lively debate on topics germane to the conduct of the industry and the differing interests of those engaged in it.

69 It was submitted by Mr Molomby that in these circumstances operators and drivers have an interest in being informed about the affairs of the industry and in communicating with each other about them, particularly about working conditions. The networks themselves can and do advertise and publicise material in explanation of their position and in furtherance of their interests. The interest of the operators and drivers is to be informed on these topics independently of the publications of the networks themselves.

70 I think that the operators and drivers of taxis have an interest in being informed about such topics, which are the subject of debate in the industry. I think that the defendants have a reciprocal interest in publishing to affected persons news of and opinions about matters of current controversy.

71 It seems to me that the taxi industry is important to the convenience and welfare of society and that the communication to those involved of matters of debate about the control of the industry and the conditions of work or employment within it promote that convenience and welfare.

72 I have read a number of issues of Cabbie magazine. They typically contain news and comment on such subjects as Government activity in regulation of the industry, driving laws, fuel consumption and prices and the activities of the networks. They contain letters written, I think, by taxi drivers or others directly interested in the industry, on subjects germane to the industry. Apart from trivial matters, they do not appear to contain material not directly or indirectly related to the taxi industry.

73 Cabbie magazine has a modest list of subscribers, all of whom I infer have an interest in following the debate on matters germane to the industry, but for the most part it is distributed free of charge by delivery to places like taxi depots and washes and LPG service stations frequented principally by taxi drivers. So distributed, it comes to the notice of the operators and drivers for whose consumption it is intended, but goes no further than is necessary to do so.

74 To the extent of the subscriptions received by Cabbie magazine, I think that the defendants have a moral duty to publish the magazine. Otherwise, they have an interest in publishing it. That duty and that interest are reciprocal to the interest of the persons for whose benefit it is published.

75 Although there are other magazines directed to those in the taxi industry dealing with similar topics, they do not, I think, fulfil the same function as Cabbie magazine. The one called “Meter” is published by the New South Wales Taxi Council, which represents the networks, claims to have a circulation of 35,000 (as against 4,000 for Cabbie). I infer that the New South Wales Taxi Council is unlikely to volunteer through the medium of Meter magazine material critical of the networks or investors. The other magazine of which there is evidence is variously called “Premier” or “Premier Post”. It is an organ of Cumberland Cabs and Premier Cabs and might be expected to promote the interest of those networks.

76 There is no evidence that Cabbie magazine has been published to anyone outside the taxi industry. Mr Hyer’s solicitor gave evidence of finding one in the back seat of a taxi. I would infer that the driver, rather than a stranger using the taxi, obtained it and left it in the vehicle. I conclude that it is unlikely that any person not having an interest in the industry and its affairs would read Cabbie magazine. I reach this conclusion notwithstanding that there is printed on the cover of every edition of Cabbie magazine the injunction -

Let your passengers have a look at Australia’s most widely read taxi magazine.

77 I doubt whether passengers would ever do more than cast an occasional glance at the magazine, given the generally short duration of taxi journeys and the nature of the topics dealt with, which would not generally interest members of the public.

78 Mr Blackburn submitted that the defendants published Cabbie magazine in order to make a profit and had a commercial interest in doing so. Therefore, he submitted, they had no common interest to publish the matters complained of.

79 This submission should be rejected. Even if the facts were as submitted, no adverse conference would flow from the profit motive: Bashford v Information Australia at [26]. As it is, there is no evidence that in publishing Cabbie magazine the defendants intended to make a profit or did so.

80 Given the restricted subject-matter of the magazine, the narrow range of persons interested in that subject-matter and the restriction of the distribution of the magazine to those persons, I think that, subject to the resolution of the issue of malice, publication of the magazine was made on occasions of qualified privilege. In particular, subject to the resolution of the issue of malice, the editions of December 2004 and February 2005, containing the defamatory material, were published on occasions of qualified privilege.

Malice

81 An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement. A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice…proof of express malice destroys qualified privilege: Roberts v Bass [2002] HCA 57 per Gaudron, McHugh and Gummow JJ at [75].

82 Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive (footnote omitted) (at [76]).

83 Ignorance, carelessness and stupidity are not evidence of malice, and their presence does not destroy an occasion of qualified privilege. Once the occasion is privileged, the protection will not be defeated because the publisher was ignorant, careless or stupid: Bashford v Information Australia per McHugh J at [41].

84 Mr Blackburn submitted that the defendants were actuated by malice in publishing the matters complained of and additional articles. The publications were actuated by improper motive and the result was that qualified privilege was destroyed. Mr Lindholdt disliked Mr Hyer, and harboured ill-will towards him. The Court should infer that the publications were actuated by the same dislike and ill-will.

85 Mr Blackburn began with some general submissions about the motivation of the defendants. He submitted that Mr Lindholdt saw his role as being automatically adversarial, of having a crusade, of taking the side of the drivers and operators right or wrong, and consistently with that attitude writing about Mr Hyer in scathing terms without checking whether his assertions of fact were true.

86 Mr Molomby pointed out that Cabbie magazine had been published for years before the articles complained of. So far as anyone knew, no prior issue had contained matter critical of Mr Hyer. Mr Lindholdt did not know Mr Hyer. The articles complained of were written in a style typical of those appearing generally throughout the several issues of the magazine. Articles were written on contentious matters in a forthright manner. They displayed Mr Lindholdt’s strong opinions. They used pejorative expressions which were not and could not have been understood as literally intended, for example, “little Hitler”, “lost the plot”, “going feral”, “mafia”, “bastards”. The choice of expressions and the forthright statements of opinion did not demonstrate that Mr Lindholdt was actuated by dislike or ill-will towards Mr Hyer. The Court should accept his evidence that he had on earlier occasions tried to speak to Mr Hyer about contentious matters but had been unable to do so.

87 Referring to the September 2004 article, Mr Blackburn submitted that the reference to “the selfish greed of the NSW Mafia”, which expression Mr Lindholdt conceded in evidence was intended to include Mr Hyer, showed that he regarded his role as one of aggressively taking the side of drivers against the industry, right or wrong.

88 It was common ground that although he had been writing about the industry for years, Mr Lindholdt had not before written about Mr Hyer. Mr Lindholdt did not know Mr Hyer. In the circumstances the highly offensive tone of the article is surprising and it is no answer, I think, to say, if it is the fact, that Mr Lindholdt generally wrote in a rude manner on contentious matters.

89 Coupled with the unnecessarily offensive tone employed is the fact that Mr Lindholdt did not speak to and did not try to speak to Mr Hyer before publishing. It may well be true, as he said, that he had on earlier occasions tried unsuccessfully to ask Mr Hyer’s comments upon some matters. But the occasion called for enquiry. Mr Lindholdt knew that the topic of Taxi Care Club insurance was contentious and might have supposed that there was another side to the story. He made no attempt to check with the Ministry about it either. And while the first three paragraphs of the article purported for the most part to report fact, the fourth was pure opinion, bordering on the venomous.

90 Later on Mr Lindholdt discovered that one of his informants, Mr Harken Err, had an interest in Taxi Care Club insurance. I am also satisfied that he was told that Taxi Care Club insurance certificates did not meet the requirements of the Ministry. Yet neither of these things caused him to retract any of the statements and he never apologised. The fact that during his evidence he claimed yet later to have read material suggesting that he had been misinformed about the Ministry’s disapproval of Taxi Care Club certificates does not affect the conclusion that he allowed to stand contentious statements of fact which he had reason to believe were untrue.

91 Taken together, these matters show that as early as September 2004 Mr Lindholdt was reckless as to the truth of the things he was alleging about Mr Hyer.

92 There was this evidence about the article of September 2004 -

Q. The headline is "Hyer loses the plot; correct?
A. Yes.

Q. And the article is about Mr Hyer losing the plot and blowing his cool when somebody tried to proffer Taxi Care Club insurance to him?
A. Correct.

Q. And you concluded that article about Mr Hyer by saying that "maybe finally the selfish greed of the New South Wales mafia will be exposed for all to see", haven't you?
A. Yes.

Q. And you agree that you thought that Mr Hyer was a member of the New South Wales mafia?
A. I agree.

Q. So your view was, wasn't it, that he was a selfish and greedy person?
A. No, because that final paragraph relates to the second final paragraph. You are taking it out of context.

Q. You thought when you wrote this, didn't you, that Mr Hyer was part of a corrupt system of Taxi Club management in New South Wales?
A. I wouldn't say corrupt it, exploitative.

Q. You were ill-disposed towards Mr Hyer, weren't you, when you wrote this article?
A. You can say I was ill-disposed towards Mr Hyer for refusing a taxi operator a plate for no valid reason.

Q. You were ill-disposed towards him when you wrote this article; correct?
A. I think I have said often enough that I didn't have any personal opinion about Mr Hyer. I wrote an article based on information received.

Q. And your being ill-disposed towards him was your main motivation in writing this article, wasn't it?
A. My main motivation of writing this article was to illustrate the behaviour of Premier management, including Mr Hyer.

Q. You had a desire to expose the intimidation and standover tactics that Mr Hyer was engaging in when you wrote this article, didn't you?
A. Absolutely.

Q. That was one of your motivations in writing this article?
A. Absolutely.

Q. But your main motivation was that you thought ill of Mr Hyer?
A. I didn't have any thought of Mr Hyer as an individual.

Q. What do you mean by that, as an individual? You thought he was standing over drivers, didn't you?
A. Yes, as the manager of the company.

Q. You thought he was intimidating drivers and operators, didn't you?
A. Well, it was evident from the information I had that that was what he was doing.

Q. That's what you thought, wasn't it?
A. Well, that's what I believed from the evidence I had received.

Q. You thought he was intimidating operators and standing over operators, didn't you?
A. Correct.

Q. You thought he was a pretty low individual for doing that, didn't you?
A. I would think so, yes.

Q. So you wanted to bring him down a peg or two, didn't you, when you wrote this article?
A. No. I had no intention of - that was not the motive.

93 Mr Lindholdt later changed his evidence and said that he had been misinformed about the Ministry’s having disapproved Taxi Care Club insurance certificates. There was this evidence -

Q. Incidentally, on Friday you agreed or admitted that you had been misinformed in what you wrote there?
A. Yes. Well, I was misinformed about being misinformed. Mr Hyer's evidence is not true, that the MoT did not accept the insurance cover from Taxi Care at the time of the article.

Q. So you say you no longer say that you were misinformed?
A. Yes, that's what I say.

Q. Is this as a result of speaking to somebody over the weekend, was it?
A. No, it is a result of reading some material that I received on Wednesday which confirmed what I had said originally, that the insurance cover issued by Taxi Care was perfectly legitimate at the time of writing, publishing the article.

Q. So you are calling Mr Hyer a liar now, are you?
A. Yes, I am.

Q. You don't like Mr Hyer very much, do you?
A. Not any more, I assure you.

Q. You despise him, don't you?
A. More and more every day.

Q. And you have since 2004?
A. No, I did not write the opinion--

Q. Let me finish my question. You have despised him since 2004, since you started writing this stream of articles about him?
A. I didn't despise him. I didn't have that opinion of him. I never met him.

Q. You just thought he was a standover merchant, correct?
A. I thought he used standover tactics against his drivers and operators.

Q. You thought he was a little Hitler?
A. Absolutely, a bully boy.

Q. You thought he was a bully?
A. Yes.

Q. But you didn't despise him; is that what you are saying?
A. Well, there's a difference between despising and disliking somebody.

Q. You disliked him?
A. Absolutely.

Q. And you disliked him when you wrote all of these articles?
A. I disliked what he was doing.

Q. That's not what I asked you, Mr Lindholdt. I am suggesting to you that you disliked him when you wrote all of these articles?
A. Well, I have to say yes to that.

Q. And your dislike of him was the main reason that you conducted this campaign against him, wasn't it?
A. No, not at all. I have explained what I think how many times. This was about fleecing the taxi operators in New South Wales with exorbitant insurance premiums. A new company comes in on the market that lowers premiums by 30, 35 per cent. Mr Hyer launches a campaign to discredit that company, and that was what offended me.

94 There can be no doubt that Mr Lindholdt strongly disliked Mr Hyer. I would not accept his evidence that he did not despise him. I think that his dislike, his ill-will, actuated the articles and explains the extreme language used in them. Although I do not accept Mr Blackburn’s submission that Mr Lindholdt knew that his assertions of fact were untrue I am satisfied that the article was published for an improper motive. Mr Lindholdt was content to assume, without any reasonable enquiry, that the serious allegations he was making were true. As a result, he formed a strong dislike for Mr Hyer and despised him. That reckless acceptance of the assertions as true and the ill-will so engendered actuated the making of the statements. They were made for an improper motive.

95 Mr Lindholdt elsewhere said in evidence -

That Mr Hyer was a liar;
That he did not like Mr Hyer;
That (at the time of the hearing) he despised Mr Hyer more and more every day.

96 Mr Lindholdt also said in evidence that in 2004 he thought that Mr Hyer -

Was a member of the New South Wales taxi industry mafia;
Was a person of selfish greed;
Used intimidation and standover tactics;
Was part of an exploitative system of taxi management in New South Wales;
Was a low individual;
Was part of a dishonest and baseless campaign against Taxi Care Club;
Was a bully boy;
Was dictatorial;
Was selfish;
Was irrational; and
Was a bastard.

97 Mr Lindholdt said that he was ill-disposed towards Mr Hyer and had a desire to expose the intimidatory and standover tactics he believed Mr Hyer was engaging in. That was one of his reasons for writing the article of September 2004.

98 Of course, the articles of September and November 2004 did not defame Mr Hyer and Mr Lindholdt does not have to justify them as such. The importance of the articles is to show Mr Lindholdt’s attitude towards Mr Hyer by the end of 2004; what he thought about him, whether he was prepared to accept without enquiry serious criticisms others were prepared to level at him and whether he was prepared to publish such matters with the sting of the colourful language he chose.

99 The first of the defamatory articles was the one published in December 2004 entitled “Peter Hyer going feral”. It was put to Mr Lindholdt that the whole of the article after the heading and the first paragraph was written to justify the statements therein made, which may be summarised as -

Mr Hyer was “going feral”.
He was the “little Hitler” running Premier Cabs.
He was “losing the plot”.
He was “losing cabs by the score”
He needed an “attitude transplant”.

100 There was this evidence -

Q. In other words, the balance of the article was intended to explain to the reader why you have made those criticisms in the headline and the opening paragraph; correct?
A. Yes.

Q. And essentially you justify your accusations against Mr Hyer by telling this story about the end of the no desto scheme?
A. Yes.

…

Q. In fact, go to the paragraph that begins "Like a woman scorned"?
A. Mm-hm.

Q. Mr Lindholdt, you were attempting to imply there this, weren't you, that Mr Hyer couldn't get his own way on "no desto" so he took a spiteful pleasure in announcing the reversal of the booking fee knowing that he would hit his operators in the pocket. That is what you were intending to imply by that paragraph, weren't you?
A. As I have explained before, I deliberately used the term "management" because I had no information that said the order to change the booking fee at the time that it was announced necessarily came directly from Mr Hyer.

Q. But you were intending to imply that he was responsible for it, weren't you?
A. No, but it would be reasonable to assume that he was.

Q. And that is what you were intending to imply, wasn't it?
A. No. As I said, I deliberately did not imply that to avoid this conversation.

Q. Can we take it then that you accept that it would be reasonable to assume that Mr Hyer was responsible for it. Is that your evidence?
A. I would expect so.

Q. And you knew that, didn't you, when you wrote those words?
A. No, I didn't know anything. I suspected so.

Q. You suspected that he was the person responsible?
A. I suspected that, yes.

Q. That is the information that you wanted to give to your readers, wasn't it? That he was responsible for it?
A. No, my information was to give the impression to my readers that the management of Premier Taxis had acted in an unreasonable manner.

Q. All right. Well, you actually thought, I take it, that Mr Hyer probably was the person responsible. That is what you thought?
A. That would be my belief, yes.

101 There is an inconsistency in these answers. I am satisfied that Mr Lindholdt believed, though he had no proof, that the actions of Premier Cabs were the actions of Mr Hyer. I am satisfied that he knew that readers would understand the references to “Premier management” in the second-last paragraph to be to Mr Hyer and that he was content that his readers should gain that understanding.

102 Mr Lindholdt had no information about and no justification for his use of the expressions “like a woman scorned” and “with glee”. They came from his imagination, coloured, I think, by his then well-developed dislike for Mr Hyer.

103 The whole of the evidence establishes that by 2005 Mr Lindholdt was on a determined campaign to publish persistent and negative statements about Mr Hyer. I will not set out the detail of all the evidence, but there appears a string of derogatory comment in editorials and articles in Cabbie magazine in August 2005, October 2005 (two), February 2006 (two) and October 2006. There were references to going to bed with the devil and the comment -

So if Peter Hyer and his mob pisses you off…

104 In July 2005 Mr Lindholdt wrote part of an e-mail, exhibit L, that ran as follows -

Such a pity some people would stoop so low as to carpet a cabbie for keeping members on this list informed on what is going on in your region – and to think we live in a country where free speech is allowed and welcomed.
Who ever gave you the idea that “free speech” was legal let alone welcome in this country?
I am being sued for defamation for writing that one of the NSW taxi industry mafia bosses is a “little Hitler”, “has gone ferral” and “has lost the plot”. The truth is that he is “a little Hitler”, he did lose the plot and he was going ferral on one point (no desto). However, especially in NSW, the truth is not a defence against defamation. Talk about “free speech”.
…
The NSW Taxi Council, according to a copy of its minutes from a Special General Meeting in November 2004 (I have a copy), agreed to support anyone who felt defamed by articles in Cabbie. A month later Peter Hyer, Managing Director of Premier Cabs, Director of Cabcharge and on the board of the NSW Taxi Council, accused Cabbie and me of defamation for comments made in a series of articles going back to September 2004. A conspiracy ……surely not.
Somehow we have to stop these bastards from intimidating us and constantly abusing their powers through their financial superiority and monopolistic status. I only hope that ALL Mackay drivers stand united with Colleen when she has to face the music this week. If not, she will most likely lose a job she obviously loves and enjoys. I’m not a union person, but I can’t knock their slogan “United we stand, devided (sic) we fall”.

105 Mr Lindholdt was asked about his state of mind at the time of the publication of the February 2005 article. There was this evidence -

Q. I suggest to you that you were conducting this campaign for the purpose of destroying him as a force in the taxi industry?
A. As you are aware, I can't remember having ever written anything about Mr Hyer before in the five or six years Cabbie has been published in terms of pinpointing him as an individual. The only reason why Mr Hyer came to the attention of taxi drivers, and I can assure you most taxi drivers don't even know who he is, although he likes to think otherwise--
…

The only reason why I seem to have run a campaign against Mr Hyer is that he made himself prominent on two fronts at the same time, and that was on support of the no destination scheme, and he was the only executive in the taxi industry who supported it, all the other networks were against it, and the fact that he ran a campaign against a new insurance company that had come in and undercut the existing rates offered in New South Wales.

Q. We take it that now you do agree with the proposition that at that time you were running a campaign against Mr Hyer?
A. Well, it appears so because his name has cropped up more often than ever before.

Q. Well, you were running a campaign against him, weren't you?
A. I wasn't running a campaign against Mr Hyer. Mr Hyer put himself in a situation where he became the object of attention.

106 The article of February 2005 repeated the reference earlier made to “third line forcing”, but there was no attempt at trial to prove that Premier Cabs was in breach of any statutory provision. The extravagant language continued. Mr Hyer’s by then threatened legal action was described as “frivolous”. There was a paragraph -

Dictator types, big or small, never know when to quit. Their egos won't let them. They hang in there until their 'empires' crumble, and crumble they always do.

show that Mr Lindholdt had departed from any attempt to make fair report or comment about matters affecting the taxi cab industry but was on a crusade against the “dictator” who had threatened to sue him, Mr Hyer.

107 I am satisfied that the defamatory publications of December 2004 and February 2005 were used for a purpose or motive foreign to the duty of interest claimed by Mr Lindholdt and were malicious. The defence of qualified privilege fails.

Damages

108 The damages to be awarded must suffice to compensate Mr Hyer for the harm to his reputation, resulting from the publications of December 2004 and February 2005, and from the hurt to his feelings resulting from those publications, including the hurt resulting from the action itself. Damages must also vindicate Mr Hyer publicly by showing the falsity of the allegations made in those two publications.

109 Mr Hyer left school after gaining the Intermediate Certificate and worked in a number of occupations, including the racing industry, before joining the taxi industry. He achieved his present position of influence by hard work. The network he controls is one of the largest in Sydney. He has been a director for the past eight or ten years of the New South Wales Taxi Industry Association, a body that represents taxi owners in industrial matters. He has been a director of the New South Wales Taxi Council and was its president for a year. These connections and his directorship of Cabcharge have made him well known to the executives of the other taxi networks and others who deal with the taxi industry, notably the relevant officers of the Ministry of Transport. Mr Hyer is well regarded in the industry generally and I accept the evidence of Mr Wilkins and others that he is regarded as a fair man. I am satisfied that at the time of the events complained of Mr Hyer was a man with a good reputation.

110 The circulation of Cabbie magazine is not large, but it is reasonable to suppose that everyone in the taxi industry who knew Mr Hyer was likely to have read or heard about the publications of December 2004 and February 2005 as well as those of September and November 2004. I am not satisfied that there was any significant promulgation of those matters outside the taxi industry, however, and there is no evidence that those matters came to the attention of anyone who knew Mr Hyer but who was not engaged in the taxi industry.

111 The compensable harm to Mr Hyer’s reputation therefore relates to his standing in the taxi industry. Since there is no evidence of communication of defamatory matter to anyone in the wider or general community and since the distribution of Cabbie magazine was confined to those directly involved in the industry I am not satisfied that Mr Hyer’s reputation in the general community suffered harm.

112 There is no direct evidence of harm to Mr Hyer’s reputation in the taxi industry, though I would readily infer that harm must have resulted. The senior and influential position he holds entitles him to be jealous of his business reputation and he should receive substantial damages for the presumed harm to it.

113 One piece of evidence was relied on by Mr Blackburn as proof of, inter alia, harm to Mr Hyer’s reputation. It is exhibit F, an information sheet that was sent to Mr Hyer through the post. The person who completed the form did not give a name other than “James Bond”. The name of that person’s company was said to be “Wogang P/L”. Counsel did not suggest that that name had any particular significance. The form required the insertion, for various kinds of insurance, of the names of the insurers and the policy numbers. Inserted as names were “Peter Hyer P/L” and “Peter Hyer Insurance Co” and as policy numbers “007 Thief” and “007 Crook”. The form also refers to an Etag account in the name of “Peter Hyer Bookmakers P/L”.

114 The form is undated. So is the envelope in which it was received. Mr Hyer’s evidence was that it was received some time after the publication of December 2004, probably early in 2005. However that may be, the subject matter of the form is obviously unrelated to what was published in December 2004. The only reasonable inference is that the one who sent the form had taken umbrage at the publications of September and November 2004. They, not the later publications, were the ones concerned with Mr Hyer’s attitude towards taxi insurance proposals. As the jury found, those publications did not defame Mr Hyer and the defendants are not answerable for their effect on him.

115 I accept the evidence of Mr and Mrs Hyer that Mr Hyer’s feelings were hurt as a result of reading the articles of December and February. Plainly, the use of the term ”little Hitler” and the carriage of the imputations found by the jury must have been very hurtful.

116 Mr Molomby submitted that most of the hurt caused by the whole series of publications must have resulted from those of September and November 2004. Most of the hurt was therefore not compensable, since the defendants were not responsible for the consequences of those of September and November. Damages, it was submitted, should be correspondingly reduced. I take it that the consequences of receiving the form exhibit F would illustrate the point.

117 There is no doubt that it was all four of the publications, made in September, November, December and February, that hurt and concerned Mr Hyer. He brought these proceedings because of them all. Those of September and November must have been hurtful. Assertions that he had “lost the plot” and had blown “his cool” and to “selfish greed,” as well as references to the “mafia” must have hurt Mr Hyer’s feelings. It is notable that the form exhibit F, the only evidence of any reaction from any third person, resulted from the publications of September and November. Even so, I do not think that most of the hurt must have resulted from those publications. The calling Mr Hyer a “little Hitler”, the calling the present action “frivolous” and the asserting that Mr Hyer conducted his business in a “dictatorial manner”, relied on the fear of drivers and reacted to challenges to his authority in an increasingly paranoid fashion constituted a substantial part of the matter complained of. Of course, Mr Hyer is not entitled to compensation for the effect upon him of the publications of September and November, and I shall temper the award of damages accordingly.

118 The award of damages will take into account the defendants’ failure to apologise.

119 Mr Blackburn contended for aggravated damages and repeated his submissions about malice, summarised above. The real thrust of the submissions, however, relied on what was said to be the conduct of the defendants towards Mr Hyer that was improper, unjustifiable or lacking in bona fides. Mr Blackburn referred to Triggell v Pheeney (1951) 82 CLR 497. It was submitted that the defence of truth was hopeless from the beginning and that the defendants must have known it. So their conduct in defence of the case was improper, unjustifiable and lacking in bona fides.

120 As I have said, the defendants were reckless about the truth of their assertions but I am not satisfied that they knew that the assertions were untrue. I am not satisfied that the maintenance of a defence of truth was hopeless, so as to categorise their conduct of their case as improper, unjustifiable or lacking in bona fides. This is not in my opinion an appropriate case for an award of aggravated damages.

121 Mr Molomby submitted that Mr Hyer’s real motive in bringing this suit was not to vindicate himself but to injure Cabbie magazine. Mr Molomby referred to an article published in the Financial Review newspaper on 28 September 2006, a copy of which became exhibit 2. The article was substantial, beginning on the first page and continuing across a double spread inside the newspaper. It was strongly critical of the New South Wales taxi industry and mentioned by name Mr Hyer, Premier Cabs and Cabcharge. It discussed the high cost of taxi insurance in New South Wales and the efforts of Mr Karas to market Taxi Care Club insurance in Sydney.

122 Mr Hyer was asked about that article but said that he had not read it. I think that the answer was false. Plainly, he was interviewed for it and was quoted in it. Not long after the article had been published, the October 2006 edition of Cabbie magazine, which Mr Hyer must surely have been keeping an eye on by that time, reported the article. I am satisfied, notwithstanding Mr Hyer’s denial, that he read the article. I note the evidence of Mr Critchley that it was most likely included in papers distributed to members of the Adelhill board.

123 Mr Molomby went on to draw attention to the second portion of the e-mail exhibit L, extracted at para 104 above, asserting the New South Wales Taxi Council’s resolution in November 2004 to support anyone who felt defamed by articles in Cabbie magazine.

124 Mr Molomby submitted that Mr Hyer had sued Cabbie magazine but not the Financial Review newspaper, falsely pretending not to have read the article exhibit 2. Putting these pieces of evidence together, the proper conclusion was that Mr Hyer had singled out Cabbie magazine (supported, it was implied, by the New South Wales Taxi Council) in order to injure it.

125 I do not accept that that is an appropriate conclusion to reach. First, notwithstanding considerable efforts made by the defence during the trial, no evidence emerged of the alleged resolution of the New South Wales Taxi Council. I am not prepared to accept as satisfactory evidence of the existence of the resolution the statement to that effect in the e-mail exhibit L. I would not otherwise infer that Mr Hyer had not brought these proceedings in order to vindicate himself. I note that upon his instructions his solicitor wrote to the defendants within days of the December 2004 publication, demanding an apology and threatening suit if it should not be forthcoming. The proceedings were commenced very soon thereafter. Notwithstanding Mr Hyer’s false denial that he had read the Financial Review article I think that this suit was commenced to vindicate and to recover damages for harm.

126 I assess damages in the total sum of $100,000.00.

Interest

127 The parties were agreed that the commencement rate for interest was four per cent per annum and the only argument was whether all the compensable harm should be taken to have been inflicted at or close to the beginning of the period between publication and judgment or whether some spread should be assumed. It seems to me in view of the fact that the libels were published in a form likely to subsist for some time that the resulting damage should be taken to have been spread over the period. The greater part of the damage would, I think, have resulted early in the period and I propose to allow approximately three per cent per annum on the sum assessed. Damage resulting from the December 2004 publication would have commenced at some time during that month and from the February 2005 publication at some time during that month. The range of periods to judgment is about two years and five months to about two years and seven months. I shall give effect to my intention by calculating at three per cent per annum on a notional period of two and one-half years. That calculation produces $7,500.00.

Verdict

128 There will be a verdict and judgment for the plaintiff against the defendants in the sum of $107,500.00. I order the defendants to pay the plaintiff’s costs, including the costs of the hearing before the jury, in an amount to be agreed or assessed.

129 I grant liberty to the parties to restore the matter to the list on 7 days notice should material emerge which, in the opinion of any party, justifies a reconsideration of the costs order that I have made.

Footnote

Mr Blackburn asked me to include in my judgment my reasons for refusing leave further to amend the Statement of Claim by extending the plea of publication to Queensland and Victoria: see T349-352. The draft Further Amended Statement of Claim is MFI 8. The hearing began on 10 April 2007 and ended after six sitting days on 18 April 2007. The application was made on the second-last day, 17 April, after the close of evidence. No notice was given to the defendants of the intention so to amend and enlarge the claim. The hearing had proceeded throughout on the understanding that Mr Hyer was seeking damages consequent upon defamatory imputations published only in New South Wales. It had all along been apparent to Mr Hyer and those advising him that Cabbie magazine was published also in Queensland and Victoria. All or most editions of the magazine carry news about events in those states, as well as the addresses of premises where they can be obtained in those states.

When Mr Hyer’s solicitors interrogated the defendants there was the following question and answer -


Q105. How many copies of the February 2005 Cabbie magazine were distributed?

A. Approximately 4,000 in New South Wales.


Similar answers were given relating to the other editions Mr Hyer was complaining about.

Mr Blackburn submitted on the application that the answers to those interrogatories were ambiguous, if not downright misleading. I disagree. The answers were precise. They did not mislead. Moreover, as Mr Molomby explained, the answers were framed consonant with the defence and in anticipation of a claim restricted to publications in New South Wales. The answers were limited accordingly. If Mr Hyer had desired to bring a broader claim, the answers, limited as they obviously were, should have prompted him to ask whether copies were distributed elsewhere and, if so, how many. Then a timely amendment could have been considered. But that was never done and the matter proceeded on the basis I have mentioned.

Mr Blackburn told the Court that the application was made “in view of the way the evidence came out about publication of the magazine in Queensland and Victoria” though, for the reasons I have mentioned, that could not have come as any surprise. There was not even any attempt to amend at the commencement of the hearing. It seemed to me that there was no proper excuse for leaving the application until such a late stage of the trial.

It seemed to me that the defendants might not be able to meet such a late amendment, at least without substantial delay. It would have been necessary for their legal advisers to retrieve and study relevant copies of the magazines, then to consider what amendments they ought to make to the defence after consideration of the laws of contextual truth and qualified privilege in Queensland and Victoria, insofar as they differed from those of New South Wales. I thought that an amendment would probably precipitate a meritorious application to adjourn the hearing to enable consideration of such matters. And there was the spectre of an application to reopen the defence. Because of the position the Court found itself in, that might have had to be for a substantial period of time. That, I thought, would not be in the interests of justice.

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