Feo & Anor v Pioneer Concrete

Feo & Anor v Pioneer Concrete - [1999] VSCA 180 - VSCA 1999 case summary — Zoe

[43]

Essentially, the appellants' argument is that his Honour's findings of fact in relation to the "second Temby slander" and the "Stagnitti slander" were against the evidence and the weight of the evidence, because that evidence did not entitle him to find that the defamatory "sting" or substance pleaded in respect of these slanders had in fact been proved. It was submitted that the "most reliable evidence" which his Honour had before him in respect of the words used in the "second Temby slander" was the written memorandum which had been made by Connell on 21 January 1994 which purported to set out, inter alia, a record of the conversation which had occurred on the 18 December 1993 (Exhibit 3). Because this memorandum did not specifically refer to the statement said to have been made by Feo that "Rowlands and Forbes are on the take", and did not even mention Forbes, it was not open to the judge to have found, as he did, that these words were spoken. Because the words, so it was submitted, were the only words alleged which could have been defamatory of Rowlands and Forbes, his Honour should have found that the words uttered on that occasion were not defamatory of the individual respondents. In similar fashion, it was submitted that the "most reliable" evidence which his Honour had before him in respect of the "Stagnitti slander" on 26 May 1994 was to be found in the notes of the recorded interview which Susan Stagnitti conducted with the solicitor on 31 May (Exhibit 4). It was submitted that, because there was no specific reference in these notes to the alleged defamatory statements as having been made on 26 May 1994 - as distinct from other occasions upon which it was recorded that such words had been uttered - it was not open to the judge to find that words defamatory of Rowlands and Forbes had been uttered on this occasion. Counsel laid particular emphasis on the evidence of Connell that he had listened to the conversation of 18 December with a view to being a witness, and on the evidence of Mrs. Stagnitti that she had been aware that her interview was being recorded for legal purposes.

[59]

"However, whether or not that be correct, the defence [i.e. of qualified privilege] ... would have been negated by actual malice. In the first place, Feo did not claim any belief that Rowlands or Forbes were "crooks" or were "on the take". I am satisfied that he had no evidence to justify even a suspicion of such conduct. At the very least he was indifferent to the truth of his words, an indifference which "is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that the published matter is true" - per Charles, J.A., Cooke v. Wood, Court of Appeal, unreported, 11 December 1997 at 13 ... . Put another way, there was a reckless indifference to the truth or falisity of his statement. ... . Proof by the plaintiffs of this indifference would suffice to negate any qualified privilege. However, the plaintiffs have in my opinion also established that Feo was motivated by an improper purpose. His ultimate purpose cannot, I think, be regarded as improper - that was to obtain a larger share of the work. ... . However, his immediate purpose ... was to instil fear into Pioneer executives, and to denigrate his competitor Krestas. So he insinuated that the latter was, in some improper manner associated with Montgomery; so he suggested a re-opening of the earlier investigation [to which I have referred in paragraph 10 of these reasons]; he sought the assistance of those within Pioneer (and Mrs. Stagnitti) to dig up evidence of which he had none; I think he hoped that if corruption there was, allegations of it and threats of investigation would instil fear into anyone who was corrupt, and if there was no corruption, executives who may honestly have been thoroughly satisfied that there was no corruption would fear that future investigation would not only reveal nothing, but be upsetting and destabilising to the staff. Feo, I think, hoped that all of this would induce those executives to give him a larger share of the work; he had once been rewarded for reporting impropriety, and he hoped for a similar reward. In aid of his immediate purpose, he lied about having Dr. Schubert's authority to investigate. Futhermore, he exhibited spite in making hurtful remarks about Rowland's personal and family life. All of this, in my opinion, goes to show that the plaintiffs have discharged the onus of proving malice."

[62]

"What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue. With some exceptions ... the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit - the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege. ... . The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person. Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, "honest belief". If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. ... Even a positive belief in the truth of what is published on a privileged occasion ... may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by law. The commonest case is where the dominant motive which actuates the defendant, is not a desire to perform the relevant duty or protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. ... There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant's dominant motive may have been to obtain some private advantage unconnected with the duty or interest which constitutes the reason for the privilege."

At a glance

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Before

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Judgment (95 paragraphs)

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Legislation Cited (1)