SLANDER ACTION Court Upholds Defence Of Absolute Privilege

Press, Volume C, Issue 29656, 28 October 1961, Page 12

SLANDER ACTION Court Upholds Defence Of Absolute Privilege

(NZ. Press Association) WELLINGTON, October 27. A finding that a slander committed by the DirectorGeneral of Health, Harold Bertram Turbott, concerning the director of the Division of Clinical Services in the Health Department, Archibald William Stopford Thompson, was protected by absolute privilege, was made by Mr Justice Leicester in a judgment delivered in the Supreme Court at Wellington today. A jury awarded Thompson £5OO damages in respect of the slander and decision was reserved for a ruling by his Honour at Wellington on the defence of absolute privilege. His Honour entered judgment for Turbott and reserved the question of costs.

Mr F. D. O'Flynn, with him Mr W. S. Shires, appeared for Thompson, and Mr E. D. Blundell, with him Mr L. M. Greig, for Turbott.

Thompson claimed £4OOO damages against Turbott. Thompson was one of two candidates for the pest of director of public hygiene, the other being Dr. D. P Kennedy, who was appointed.

Thompson appealed to the Public Service Appeal Board against the appointment and at the appeal hearing Turbott gave evidence in support of the Public Service Commission’s decision.

During his evidence, and at a conference a few days before in his office, called by the solicitor appearing for the commission, Turbott repeated a conversation he said he had had with a Professor J. M. Mackintosh, at a meeting last year in Geneva of the World Health Organisation. He quoted the professor as saying: “Thompson has a brilliant brain, but would never do for a top job Self comes first with Thompson.” “I think that the decision to make use of the words spoken at Geneva in order to destroy or weaken the testimonial that had been given by Professor Mackintosh was an ill-advised one, particularly in regard to the light in which it displayed Professor Mackintosh,” said his Honour.

“To my mind, it was an unworthy exercise of partisanship by the head of a Government department. It could well have been anticipated that the relating to the Appeal Board of the conversation at Geneva, even if the precise words were actually recorded, could cause shock and unnecessary distress to the appellant. ‘The result sought by the commission could equally well have been achieved by stressing that the testimonial was 14 years old, and that during that time the department had had opportunities of judging the suitability of the appellant which were de-

nied to the giver of the testimonials.

“If the occasion is one where the evidence of a witness is being briefed by a solicitor, and on the face of it one of absolute privilege, then in my view the witness does not lose such privilege when there are present, in addition to the solicitor, individuals who are parties to the proposed litigation or have a legitimate interest in such litigation or the preliminary steps thereto. ‘The jury has found that the defendant did not have an honest belief in the defamatory words that he used at the briefing meeting. “Had this been an occasion at qualified privilege only, the plaintiff would have been entitled to his verdict.

“As a matter of law, and it is as such that I am called upon to consider it, I find the occasion to be one of absolute privilege.”