Defamation Verdict Upheld

Press, Volume CI, Issue 30008, 18 December 1962, Page 16

Defamation Verdict Upheld

(NZ. Press Association) WELLINGTON, December 17. The Chief Justice (Sir Harold Barrowclough) has dismissed a motion by the Hutt Valley Electric Power and Gas Board for non-suit in an action in which a jury awarded damages of £4450 against the board for alleged defamation. In a judgment delivered in the Supreme Court at Wellington today, his Honour found in accordance with the verdict for the plaintiff. Harold Archibald Flett, an engineer formely in charge of the distribution of gas for the board. His Honour, reviewing the evidence, said that, in 1961, the production of gas at the Petone workshops of the board was under the supervision of the Wellington Gas Company and Flett under an officer named O'Callaghan, was in charge of the distribution of gas from the workshops. In March, 1961, Flett wrote a letter to the general manager of the board. Hector Elliott Mcßain, which was strongly critical of the Wellington Gas Company and oi its technical officer, Mr Rodd. In the evidence there was no ground for inferring that Flett thought his letter would be passed on to the

Wellington Gas Company. Mcßain sent the letter to the manager and secretary of the company, a Mr Kennedy, and “thereby ensured that the letter would cause as much unpleasantness in that quarter as it was capable of doing.”

Flett’s act was merely to send a letter to Mcßain under strict confidence and request him to send a copy to board members “for their perusal," said his Honour.

After reminding members of the board's gas committee how dependent they were on the Wellington Gas Company’s technical resources and staff to help through a particularly difficult period, Mcßain proceeded to blame Flett for an act which, he said, “could have the most serious repercussions and damage the goodwill existing between the company and the board.” The act of which he complained. he described, as Flett’s “unwarrantable intrusion into the company’s affairs.” “The letter may have held explosive matter, but it could not be detonated unless McBain or some other board member reclassified it as something very much less than strictly confidential,” said his Honour. “It would be open to a jury to hold that it was not Flett’s act, but Mcßain's, which would be likely to cause repercussions. if. indeed, repercussions were, in fact, likely. “Mcßain was given every opportunity of explaining his position, but he seems to have been quite unable to explain why Flett’s action in writing confidentially to

him could cause serious repercussions with the Wellington Gas Company, when those results, if they did arise, would arise only because of his own action in sending the confidential letter to Mr Kennedy. “Yet Mcßain recommended Flett’s dismissal on the ground that his sending of a strictly confidential letter was likely to procure the results which are forecast in Mcßain’s report of March 13. “It is difficult to see how Mcßain could have believed that it was Flett’s action which was likely to cause the consequence which his report envisaged.” His Honour said he was of the opinion that in McBain's own evidence there was ample evidence of malice to go to a jury. He found himself unable to say that Mcßain's report, as a whole, was not capable to a defamatory meaning. In his opinion the board failed on the grounds upon which it asked for judgment of nonsuit.

His Honour dismissed an alternative motion for a new trial.

Referring to the ground that the damages were excessive, he said the alleged libel was an attack on Flett as one of the board's technical officers. The charges which had been made had not been retracted by McBain or denied by the board. He did not know whether the jury had increased the award because of the plea of justification. In his opinion, some increase on that account would be justifiable, said his Honour.