Defamation hearing ends

Press, Volume CXII, Issue 32903, 29 April 1972, Page 3

Defamation hearing ends

(N.Z. Press Association) WELLINGTON, April 28. A jury’s verdict upon a question of malice could be set aside only in the most exceptional circumstances, Mr F. D. O’Flynn, Q.C., submitted today in the Supreme Court at Wellington. He was replying to submissions that had been made in support of a motion for judgment for the Deputy Prime Minister (Mr Muldoon) against a jury verdict last month. The jury awarded $5OOO damages for defamation to Mr Brian Thomas Brooks, then an industrial relations j manager and university lec-l turer. It assessed damages at; $lOOO and $5OO respectively; for words spoken by Mri Muldoon defamatory of Mr Brooks and printed in the [“Sunday News” and the ■“Auckland Star” of September 7. It assessed damages at $3500 in regard to a trans-: Script of the television pro- ;

gramme “Gallery,” of Sep-! tember 7. ( Mr O’Flynn moved orally! today for judgment for Mr Brooks in all three causes off action for a total of $5000.; Decision on this motion and, the other seeking judgement; for Mr Muldoon was re-( served by Mr Justice Haslam. ( FACTS NOT DISPUTED Mr O’Flynn said that on the, question of privilege there, was no dispute between the; parties as to the relevant, facts. The only differences; ! were on emphasis. The plaintiff readily conceded that the subject mat- , ter of the three libels was one of public interest, and he accepted without qualification that the initiative had( > come from the news media. : , Mr O’Flynn said that the; i Cabinet paper recommending i|Mr Brooks’s appointment ■(as chief industrial mediator 'had last year remained deferred right up to the time he 'withdrew his name from '[consideration on September ' 9. ■ ■ No decision on the matter : had been taken at the Gov(ernment caucus on September 2 and all names, including that of the plaintiff, re■(mained at least formally un- ■ der consideration.

! On September 9, the then (Minister of Labour (Mr (Marshall) had said on television that Mr Muldoon had (been expressing his personal (view (about the plaintiff) and (not that of the Government. ( Mr Muldoon, in his eviIdence, had accepted that. “RARE DEFENCE” The defence of privilege ’arising from a public duty ! was a rare one, said Mr • O’Flynn. Essential ingredients for : privilege were a duty, legal social or moral, to make the communication, and a corresponding duty or interest on the part of those to whom it was made to receive it. The content of what was 'published had to be reistricted to the subject matter of public duty. He said that the public did not have a legitimate interest of the kind necessary to support a privilege—as dis- ; tinct from an interest in the matter as news or gossip—in learning the reasons why Mr Muldoon considered Mr Brooks as unsuitable for appointment. Accordingly, Mr Muldoon . had no duty to make his views public through the

t press and television, and : these were therefore not priv- • ileged. I The fact that the subject 1 matter might be one of the l !public interest did not suffice ito support such a privilege, Ihe said. It was an essential ingredijent of the defence of fair i comment that the subject "matter be one of public inter’lest, but that was not suffici,ent to support a duty relating to privilege. ’l Mr O’Flynn said that the I public, or at least a substan- ! tial proportion of the public, ■ must need the information to - make some decision or action 1 to regulate their conduct before publication to the world i at large became privileged. ; In the reply, Mr R. G. Collins said it was made clear by Mr Muldoon, and not disputed, that the approach was ■ made to Mr Muldoon by “Gal- ’ lery” to answer questions ’ “about this matter, as a matter of public interest.” !i Mr Collins submitted that .the matter related to the: I state of the economy and in-i ’I dustrial harmony, which (affected the well-being and II way of life of the public of, si New Zealand, or a large 3'majority of the public.