SLANDER ACTION Defence Claim Of Absolute Privilege

Press, Volume C, Issue 29643, 13 October 1961, Page 14

SLANDER ACTION Defence Claim Of Absolute Privilege

(New Zealand A'ress Association)

WELLINGTON, Oct. 12. An allegedly slanderous i statement made by • the Director-General of Health, Harold Bertram Turbott, was absolutely privileged, counsel submitted in the Supreme Court today at Wellington. He contended it was well established that there was absolute privilege for any statement made in evidence by a witness during judicial proceedings, however false or otherwise malicious or irrelevant. that statement might be. Last month a jury awarded the director of the Division of Clinical Services. Archibald William Stoipford Thompson, £5OO against Turbott for slander. Thompson alleged that while his application for the post of director of public hygiene was under consideration, Turbott orally published a statement that, while at Geneva for a meeting of the World Health Organisation, Professor J. M. Mackintosh said to him: “Thompson has a brilliant brain but would never do for a top job. Self comes first with Thompson.” When judgment was asked for after the verdict Mr Justice Leicester stood the matter over to consider the defence of absolute privilege. Mr F. D. O’Flynn, with him Mr W. S. Shires, appears for Thomson, and Mr E. D. I Blundell, with him Mr L. M. Greig, for Turbott. | Mr Blundell said that at the conference in Turbott's office lon October 13 last year, all .those present, except the | solicitor and one other, were (actual witnesses in the pending appeal. In the case of one of them, Mr A. G. Rodda, a member of the Public Service Commission, was in the additional position of being a party to the appeal. The conference had been called and conducted for the purpose of the due presentation of the case for the commission, which was the respondent in the appeal, and absolute privilege attached to the witnesses, said Mr Blundell. Mr O’Flynn said two broad answers were offered in reply |to the defence argument. The first was that the Public Service board of appeal, when hearing Thompson’s appeal was not exercising a judicial but an administrative function. ’’Accordingly, it is submitted that there were no judicial proceedings within the meaning of the rule we are concerned with, and the defendant had. at most qualified privilege at all times.” "Concession Irrelevant” Mr O'Flynn said it was conceded during the original hearing that the evidence before the appeal board was absolutely privileged It was possible that Thompson s counsel were wrong as a matter of law, but the concession was irrelevant because Thompson did not sue TurtJnu * s ? tcment made by Turbott in his evidence to the Mr O'Flynn submitted that the occasions of absolute were limited 01 not lightly extended. Absolute privilege was not a docto Bave Pfivi’ese to make false statement* with immunity, “which could really never be justified, but the privilege of being free of ,;~? Uiry as t 0 malice. The privilege of the witnew himself is also narrow tended? t 0 liBhtly «' It had been said that the sanction which justified Privilege in the witness box was that the witness was exposed to indictment for perr f y . * l e «al authority had when a tory statement was made in a solicitor's office and repeated in evidence it “slumbered in the solicitor's office " ~ ! ? to s,u mber. its publication has to be restricted to the solicitor’s office and

cannot be repeated in public or semi-public." His Honour: If this particular evidence had not been given at the Public Service appeal board and merely elicited in the way Mr Winkel elicited it, couldn’t it be said that it slumbered in the conference room? Mr O'Flynn: It would not have slumbered in quite that way . . . Instead of slumbering it would have festered in the minds of Rodda. Lewis and company who might have made use of it on some future occasion. The hearing will continue tomorrow.