Peter John Hyer v Cabbie Pty Limited and Another [2007] NSWSC 795 | Case summary

Peter John Hyer v Cabbie Pty Limited and Another [2007] NSWSC 795 | Case summary | Zoe

7 The jury were not satisfied that the article conveyed any of the defamatory imputations pleaded. 8 Those articles upon which Mr Hyer did succeed are as follows. After each of the articles published I shall set out the defamatory imputations found by the jury to have been conveyed. In the December 2004 issue - Publication Peter Hyer going feral The little "Hitler" running Premier Cabs in Sydney is not only losing the plot, he is also losing cabs by the score. It's about time the bloke had an attitude transplant. Monday morning 29 November 2004 Premier Cabs flashed a message on the MDTs to its fleet. It read something like "$1.45 booking fee reduced back to $1.10 by Ministerial order, effective immediately." When we rang the Minister's office it knew nothing about it, other networks also didn't know. Maybe Peter Hyer has a private direct line to the Acting Director General Mark Duffy's office? Booking fees were increased from $1.10 to $1.45 in April when the trial of "No Desto" commenced. The chief advocate of "No Desto" was Peter Hyer, the Chairman of Premier. When the Allan Cook Report suggested that the trial had been an abject fiasco and should be scrapped immediately, it is alleged that Mr Hyer stated that he would defy any ministerial direction to do so. When Minister Michael Costa announced the end to the trial and that "No Desto" would be a matter for the networks to decide, Mr Hyer was elated. That is, we are informed, until a delegation of Premier operators confronted and told him that if he kept it on they would take their cabs elsewhere. Premier consequently was the first network to bring back "Destination". Like a woman scorned Premier management with glee announced the reversal of the booking fee knowing it would cost its operators up to $150 to have another meter adjustment only four weeks after they had paid for one for the paltry 2.34% fare increase. Why wasn't the change left for IPART to determine. Who organised to have it announced with such lightening (sic) speed when it took six month to approve the fare increase? Who really runs the MoT? Surely not Mr Hyer. Imputations (a) The plaintiff was running Premier Cabs Pty Ltd ("Premier Cabs") like a "little Hitler", that is, in a wild, unpleasant and dictatorial manner. (b) The plaintiff was becoming increasingly irrational, in his management of Premier Cabs. (c) The plaintiff in his management of Premier Cabs was becoming so irrational, that the company was losing cabs by the score. (d) The plaintiff was an appalling manager of Premier Cabs in that he supported the "No Desto" trial even after it turned out to be an abject fiasco, and only ceased support for the scheme when a delegation of cab operators confronted him and told him that if he retained the scheme, they would take their cabs elsewhere. (e) The plaintiff took spiteful pleasure in announcing the reversal of the booking fee, knowing that it would cost drivers up to $150 a to have another meter adjustment just four weeks after the drivers had had to pay for a meter adjustment for a paltry fare increase. In the February 2005 issue - Publication Taxi Boss sues for Defamation My Christmas present from Peter Hyer, managing director of Premier Cabs in Sydney and a director of both the NSW Taxi Council and Cabcharge, received on 22 December 2004, was a Supreme Court writ claiming he had been defamed in a number of articles in Cabbie, one titled "Peter Hyer going feral", another "Hyer loses the Plot" and finally "Premiums finally crash in NSW". by Peer Lindholdt

In September 2004 Cabbie published a small article headed "Hyer loses the Plot" about allegations that Mr Hyer had refused to accept insurance covers from the new Taxi Care Club Ltd. The allegations were based on reports from a number of operators that Mr Hyer had threatened not to renew their plate leases if they insured with Taxi Care Club Ltd. They were not made by Cabbie. We simply reported them. We also reported that Taxi Care Club Ltd was considering suing Premier, which operates its own Insurance brokerage, for 'third line forcing' which is an illegal business practice. But that's not all. Mr Hyer is also claiming aggravated damages for Cabbie's references to him as "going feral", "losing the plot" being a "little Hitler". He claims these references suggest he is becoming increasingly irrational, unpleasant and dictatorial in the way he runs his companies. Cabbie never claimed he was 'becoming increasingly irrational". What is however irrational is his blatant attempt to, through frivolous legal action, prevent Cabbie from exposing the truth about the methods employed by the taxi industry mafia of which he is a high ranking member. As for referring to him as "a little Hitler", which suggests he is running Premier like a dictator, there is plenty of evidence to support such an imputation. Mr Hyer and his ilk in the Industry have for years relied on the fears by drivers, operators and staff of retaliation if they took a stand against their treatment. They knew their livelihood would be on the line. Cabbie, for the same reason, has in the past published a number of "apologies" to avoid defamation proceedings. Not this time. That Mr Hyer and others on the NSW Taxi Council are becoming increasingly paranoid about the threats to their hold over the industry is well justified. Taxi drivers and operators have had enough of some the methods used by the mafla and they are beginning to take affirmative action and fighting back. Dictator types, big or small, never know when to quit. Their egos won't let them. They hang in there until their 'empires' crumble, and crumble they always do. The NSW Taxi Driver Association didn't emerge by accident. It was a long time coming, but as an association representing the grassroots of the industry it has already achieved what the mafia has always feared most, the acceptance and respect by Government ministers, leading bureaucrats and the media. The clean-up has commenced and soon the old slogan "Proud to be a cabbie" may again have a ring of truth about it. Imputations (a) The plaintiff behaved in an irrational manner in that he commenced a frivolous legal action. (b) The plaintiff has sought to muzzle legitimate criticism of his conduct by resorting to a frivolous legal action. (c) The plaintiff relies on the fears of drivers of retaliation if they took a stand against him. (d) The plaintiff runs the taxi company, Premier, like a little Hitler, that is, in a dictatorial manner. (e) The plaintiff is reacting to legitimate challenges to his hold over the taxi industry in an increasingly paranoid fashion. 9 The defendants have set up defences of Justification and Qualified Privilege. They assert that imputations (a) in the publication of December 2004 and (d) in the publication of February 2005 were substantially true, related to matters of public interest and were published on occasions of qualified privilege, and that the other imputations were contextually true and did not further injure Mr Hyer.

Q. It was not your belief? A. I believed that it was quite in order to do what we were doing with the exemptions granted to the various other companies throughout Australia. … Q. You believed, didn't you, that those three companies, if they hadn't received those authorisations, would not have been entitled to require that of their operators? A. In a sense, but can I just explain one thing because we are labouring here. I never in all the years I have been involved in the taxi industry at Granville had anybody say they didn't want to accept Cabcharge except one gentleman, so it was a system that was automatically taken for granted and the rule was left there under the assumption that the rule was granted to one organisation, granted to two and it was purely a rubber stamp facility, and quite obviously was an oversight. We probably could have done it but at the end of the day it wasn't going to make any difference. It was never used. 17 In asking these questions counsel was referring to s47 Trade Practices Act 1974 which, relevantly, is as follows - (1) Subject to this section, a corporation shall not, in trade or commerce, engage in the practice of exclusive dealing. … (6) A corporation also engages in the practice of exclusive dealing if the corporation: (a) supplies, or offers to supply, goods or services; (b) supplies, or offers to supply, goods or services at a particular price; or (c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the corporation; on the condition that the person to whom the corporation supplies or offers or proposes to supply the goods or services or, if that person is a body corporate, a body corporate related to that body corporate will acquire goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the corporation. (7) A corporation also engages in the practice of exclusive dealing if the corporation refuses: (a) to supply goods or services to a person; (b) to supply goods or services at a particular price to a person; or (c) to give or allow a discount, allowance, rebate or credit in relation to the supply of goods or services to a person; for the reason that the person or, if the person is a body corporate, a body corporate related to that body corporate has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the corporation. 18 The authorisations referred to had been obtained from the Trade Practices Commission or perhaps the Australian Competition and Consumer Commission under s88 of the Act. 19 There followed attempts by interested persons to have the authorisations set aside. On 11 March 2005 the Australian Competition and Consumer Commission refused to do so but on 27 June 2006 the Australian Competition Tribunal did so. The judgments of those bodies are exhibits U and V respectively. 20 It was common ground that Cumberland Cabs had not obtained any authorisation permitting activity that would otherwise be in breach of s47. When asked, Mr Hyer explained the reason why there had been no application in these words - A. The only thing I could suggest was the secretary manager of the day would have thought that it would be okay to go with the other groups as if it had been approved for one it would be approved for all. 21 Later in his evidence, having apparently come to the view that Cumberland Cabs had been incorporated by the time it converted to Cabcharge, he gave the evidence extracted above, justifying the by-law by his belief that it was in order to do what Cumberland Cabs was doing because of the authorisations granted to those networks that had applied for them. 22 Mr Hyer also said that when the other networks made their applications they were of a substantial size and Cumberland Cabs was fairly small, also that there were other networks that did not apply for authorisation though they maintained rules like by-law 9. Mr Hyer said that the network never actively tried to enforce by-law 9, whether by the use of by-law 17 or otherwise. He said that only one driver had objected to accepting Cabcharge patrons and that Cumberland Cabs had not made an issue of it but had permitted him to act as he wished. Mr Hyer said that credit patrons amounted to about forty per cent of taxicab users and cash patrons to about sixty per cent. He said that it was uneconomic for any driver to refuse to accept credit passengers. The evidence established that a driver received the amount on the meter regardless of whether the patron paid in cash or credit. Patrons paying by credit were charged a loading for that service, of course. In recent times drivers have been receiving a small surcharge where patrons have paid by credit. 23 Mr Molomby criticised the evidence and motives of Mr Hyer, who first explained the absence of an application for authorisation by reference to the probable belief of the secretary/manager of the co-operative at the time and then, having realised that Cumberland Cabs must by then have been incorporated, by reference to his own belief. The existence of the belief itself was challenged as not rationally consistent and cavalier. Then Mr Molomby drew attention to the form of by-law 9 which was still in existence at the time of the hearing in April 2007, even though the Australian Competition Tribunal had set aside the authorisations in June 2006. Given the importance of the matter, it was submitted, the continued existence of a rule nearly a year after revocation, especially, as was the case, where Cumberland Cabs had itself made a submission to the Australian Competition Tribunal, was indicative of someone who had a disregard for the law and was used to getting away with things. 24 Mr Molomby also drew attention to changes in the sizes and composition of the various taxi networks in Sydney from time to time. While it might have been accurate, as Mr Hyer said, to call the three networks who applied for authorisations substantial and Cumberland as smaller, the position became quite different as time went by. By the time of the applications to set aside the authorisations Cumberland Cabs was the second largest network, yet it had never sought an authorisation, even though it contended for the maintenance of the status quo in the applications before the Australian Consumer and Competition Commission and the Australian Competition Tribunal. The contention of a belief that if a few networks had authorisations it would be alright for Cumberland Cabs to continue to operate without one should not be accepted. At least, it was further evidence of the cavalier attitude contended for. There had been no proper explanation for the delay, once the authorisations had been set aside, in removing the by-law from the Driver's Handbook. 25 Mr Molomby submitted that there was an inconsistency between the position taken by Mr Hyer that by-law 9 was not enforced and the fact that Cumberland Cabs contended before the Australian Consumer and Competition Commission and the Australian Competition Tribunal that authorisations ought to stand. Mr Molomby submitted that Mr Hyer's explanation that no issue had been forced between Cumberland Cabs and the protesting taxi driver was glib. The fact was that the driver had to drive a taxi bearing the "Cabcharge" logo. It would be impossible in practice to segregate intending travellers so as to divert elsewhere those wishing to pay by Cabcharge. Mr Molomby pointed to the usual conditions of lease between Cumberland Cabs and the operator, which was terminable on twenty-eight days notice in writing without attribution of reasons. An operator running the risk of being effectively summarily dismissed was equally effectively discouraged from raising any objection. It was therefore not surprising that the only evidence was that one driver had done so. 26 The modern taxi industry is one that attracts investors. Taxi licences or "plates" sell on the open market, but those who purchase them do not necessarily operate or drive the taxicabs to which they become attached. It is common for investors owning one or more plates to have networks like Cumberland Cabs manage them. Out of almost nine hundred plates in its current fleet, Cumberland Cabs manages some six hundred such plates for investors, letting them to operators who take on the opportunity and responsibility of providing a taxi and running a business by the use of it. Even operators are not necessarily drivers, and operators who drive taxis whose plates they own or lease may also take on drivers to do shifts that the operators are unable or unwilling to do. So a person might be all or any of an investor, an operator and a driver. 27 Mr Hyer's evidence was that the requirement to accept Cabcharge as in by-law 9 was one made of drivers and of nobody else. It was no part of the terms of any lease between Cumberland Cabs (on behalf of the investor) and any operator. It was on this evidence that Mr Blackburn, for Mr Hyer, submitted that particular (b) - that Premier Cabs Pty Limited required as a condition of belonging to its network that operators agree to comply with the by-laws - had not been made good. Any requirement of the by-laws, he submitted, was only of drivers. 28 In my opinion there is no substance in that submission. There was no evidence about the numbers respectively of operators and drivers or of how many, if any, operators do not drive at all, but plainly many operators must at least some of the time drive the taxis they operate. For such persons, a requirement that a driver comply with by-law 9 amounts to a requirement that they, the operators, comply with it. And effectively, by-law 9 binds even operators who do not drive, because if it has any effect at all it will discourage them from engaging drivers who run the risk of denying themselves the services offered by the network. 29 In my opinion Premier Cabs Pty Limited did require operators to comply with the by-laws, either because they were drivers or because if they engaged drivers who were not prepared so to comply, their businesses would be denied the services without which they could not operate. 30 Mr Blackburn's alternative submission was that even if the by-laws constituted a breach of the provisions of s47, that did not prove the substantial truth of the imputation. First, Mr Hyer should be accepted in his assertion that he believed it permissible to have by-law 9. Moreover, it was submitted, maintenance of the Cabcharge system, whether by by-law 9 or otherwise, conferred great benefit on drivers and operators alike. Mr Blackburn referred to the forty per cent or so of patrons who paid by that method and to the evidence of unprofitability of a taxi business that was not prepared to use that system. Mr Blackburn referred to the reasons expressed by the Australian Competition Tribunal for setting aside the authorisations. He pointed out that the authorisations were to permit the imposition of penalties for breaches of rules of networks. The real reason why the Tribunal set aside the authorisations was that the provision of credit facilities had become so widespread in the taxi industry that drivers could not really refuse non-cash payments: see para [50] of the Tribunal's reasons. 31 I think that these submissions should be accepted. I accept Mr Hyer's explanation for the reason for maintaining the by-laws including by-law 9 and at the same time not applying for authorisation. The authorisations were commonly granted in the taxi industry in New South Wales and in other States and there seems no reason to think that any further network applying for a similar authorisation would not have been granted one. There was no direct evidence to this effect, but I think that Mr Hyer probably thought that if Cumberland Cabs bothered to apply, it would receive a grant accordingly. However that may be, his attitude to his business and his legal obligations was lax. 32 I do not think, however, that there was any inconsistency between the maintenance of the by-law and the failure to apply for authorisation or any support given by Cumberland Cabs to those seeking to maintain the status quo in the Commission or the Tribunal. I see no inconsistency with the continued form of the Driver's Handbook some ten months after the setting aside of the authorisations. Cumberland Cabs was not required to withdraw the book and reprint it immediately. Ordinary business standards may be permitted to prevail. What was required was that Cumberland Cabs should not attempt to enforce the by-laws and there is no evidence that it did. 33 Notwithstanding the demonstrated inappropriate attitude of Mr Hyer and his organisation to the requirements of s47 and the inappropriate maintenance of by-laws which included by-law 9, there is no evidence of the truth of the imputation. None of this material persuades me that Mr Hyer conducted his business in a wild manner. None of it persuades me that he conducted it in an unpleasant manner. None of it persuades me that he conducted his business in a dictatorial manner. His tolerance of the protesting driver and his eschewing any attempt to deal with him by application of the by-laws tends to show the opposite. I take into account also the evidence of Mr Thomas, a taxicab driver for a period of thirty-two years and an operator for twenty-four of those years, who has driven for the Cumberland network and knows Mr Hyer and people who know him. He says, and I accept, that Mr Hyer's reputation in the circles in which Mr Thomas moves is of a fair and approachable man.

35 The Ministry of Transport required operators of taxis to have them insured. Accordingly, lessee operators of taxi plates were obliged by the terms of their leases from Cumberland Cabs to insure their taxis. It may be accepted that at the time of these articles insurance premiums for taxis in New South Wales was higher than in other parts of Australia and that Taxi Care Club of Victoria was trying to break into the Sydney market, offering insurance for substantially less than was charged by other insurers. One of the insurers in the Sydney market was Zurich. Cumberland Cabs had an interest in an insurance brokerage called Transguard. Transguard used to direct insurance to Zurich and to receive commission on insurances so arranged. A number of lessees in the Cumberland Cabs network arranged insurance with the Taxi Care Club of Victoria but were told that it was unacceptable. It may be accepted that Mr Hyer was responsible for the network's attitude. These were the events which precipitated the publications of September and November 2004. 36 Mr Hyer gave evidence about the circumstances in which lessees were told that Taxi Care Club insurance was not acceptable. Mr Bessier, the Operations Manager at Cumberland Cabs and a former officer of the Ministry of Transport, told him that in his opinion a certificate of currency of insurance of the kind being offered by Taxi Care Club was insufficient to meet the Ministry's requirements. Exhibit R is an example of such a certificate. It names the owner of the vehicle insured but describes the insured thus - Taxi Care Club and nominated owners. 37 Mr Hyer asked Mr Bessier to consult the New South Wales Taxi Council, a body representing the taxi networks. Mr Bessier did so and spoke also to Mr Simpson, Head of Policy at the Ministry. Mr Bessier reported back to Mr Hyer, telling him that Mr Simpson had said that there had to be an individual, not a group, policy for each taxi. Mr Hyer spoke to Mr George Karas, who was promoting Taxi Care Club insurance, and Mr Ramshaw of the New South Wales Taxi Council. Mr Hyer referred to the certificate of currency Mr Bessier had mentioned and asked Mr Karas whether he would supply an individual policy to cover that particular taxi. Mr Karas said that he did not need to supply a policy and that a certificate of currency, presumably the one in the form that Mr Hyer had, was sufficient. Mr Hyer never did receive from Mr Karas any individual policy of insurance as opposed to the certificate of currency about which he had asked Mr Karas. 38 On 1 September 2004 Mr Ramshaw wrote a letter to Mr Hyer which included the following passages - I have had a phone call from George Karas. During the conversation he mentioned that he was having a dispute with you, and alluded to some claims he alleged you had made about his mutual aid scheme. You might find the attached helpful in perhaps lending support to any claims you may wish to make about mutual aid schemes. In particular, APRA considers them "unreliable", "inherently flawed"," ultimately unsustainable" etc 39 APRA is the Australian Prudential Regulation Authority, a Commonwealth body set up to supervise the activities of licensed insurers. 40 In addition, on 10 September 2004, Mr Hyer received from Mr Simpson at the Ministry a copy of a letter sent by e-mail to solicitors representing interested persons. It contained these passages - It is apparent that there has been some misunderstanding as to the Ministry's requirements in this regard so I have itemised them hereunder in order to make it quite clear about what is needed and, hopefully, to obviate the need for any further correspondence in the matter.

41 As a result of this correspondence Mr Hyer came to the view that the proffered certificate of currency did not meet the Ministry's requirements. And there was another matter that troubled him. The excess on the Taxi Care Club policy was $15,000.00 per vehicle, which he regarded as exceptionally high. He was concerned that if an impecunious operator were unable to meet an uninsured liability of as much as $15,000.00, the loss might fall on others, perhaps the owner of the plate or the network itself. But his principal concern seems to have been that an operator having such insurance ran the risk of seeing the licence cancelled in accordance with point 8 of Mr Simpson's letter. 42 Mr Lindholdt was asked about the sources of his information. They were confined to those promoting Taxi Care Club insurance and drivers who were disaffected by the network's refusal to accept them. Mr Lindholdt said that Mr Karas, his lawyer and his insurance broker had told him that there was nothing illegal about the cover proposed and he accepted what they said. He accepted at first that there had been a problem with the insurance in that the Ministry required the issue of individual policies. Later in his evidence, however, he went back on that concession, relying on what he said were e-mails and correspondence between Taxi Care Club, its lawyers, its broker and the Ministry of Transport. He identified one such document, a letter written by a solicitor on 22 September 2004. The tender of the letter was rejected but I have no doubt that the problem of the group policy was overcome. 43 Although Mr Karas declined to furnish Mr Hyer with an individual policy as requested, I think that individual policies must have become available, though the evidence does not enable me to say when. That is in my opinion the only reasonable explanation of what I take to be a change in Mr Hyer's attitude. As I have said, one of his concerns was the high excess and the resulting risk for impecunious lessees, but Mr Hyer's overwhelming objection was that the group policy failed to meet the Ministry's requirements. Yet Mr Hyer gave evidence that he distinguished between owners and lessees. He thought that the former could look after themselves, and so was prepared to countenance Taxi Care Club policies for them, but that lessees needed protection. He could not have countenanced the acceptance of policies for owners which did not meet the Ministry's requirements, so he could only have drawn the distinction he did because he had come to accept that individual policies had become available which met the criteria mentioned in Mr Simpson's letter. So his only remaining concern must have been the high excess. 44 On all the evidence I am satisfied that in rejecting Taxi Care Club insurance in the first place Mr Hyer was intent on ensuring that the requirements of the Ministry were met and that operators were protected. Even after the problem of the group policy was solved he continued to reject Club polices for lessees in order to give them the protection he thought they needed. I am not satisfied that Mr Hyer's concern in rejecting the insurance was to "stand over" operators, as Mr Lindholdt would have it. I would not infer that he did so in order to protect his own business interests in Transguard. I accept his evidence that the network accepted insurances affected by other channels. 45 Mr Molomby submitted that Mr Hyer should not be accepted in his statement of the belief that one of the consequences of the high excess might be that the loss should fall on others, including the network. I do not think that this criticism is warranted, Mr Hyer is not a lawyer. I think that he was telling the truth. 46 I am satisfied that Mr Hyer acted as he did for the reasons he put forward. I note the evidence of Mr Thomas that he was regarded as a fair man. It is possible, I think, to see Mr Hyer's attitude and actions towards lessees as paternalistic, even wrong. But none of this evidence establishes that he was wild, unpleasant or dictatorial in the conduct of his business. There is no justification for Mr Lindholdt's having called him a "little Hitler".

The "no destination" trial 47 There is one particular of truth, namely - (j) the plaintiff was a supporter of the "no destination" scheme, by which the destination was not passed on as part of a radio booking, which he knew was contrary to the wishes of taxi operators and drivers. 48 Before the events of 2004, taxi drivers were entitled when offered a job over the radio to be told the intended destination and, with that knowledge, to decide whether or not to accept the booking. A proposal was put forward that when offering bookings radio operators should cease announcing the intended destination. The intention was that any driver accepting a booking would be obliged to carry the patron to the required destination. (Under the Ministry's regulations, it was not every booking that a driver was expected to fulfil, and there were some exceptions, for example, if the passenger appeared to be unable to pay, if the carriage was to a place outside the driver's ordinary geographical area of work and the like, but those matters do not need to be considered for present purposes). 49 There was a good deal of controversy about the proposal. Some or all of the taxi networks favoured it. Cumberland Cabs favoured it and Mr Hyer strongly supported it. The reasons, shortly, were as follows. It would give the public a better service. A radio call would invite carriage from a particular starting place and the taxi closest to that place and available for hire would accept the booking. So waiting time for the public would be minimised. That would produce a direct saving and would enable networks to comply more readily with standards maintained by the Ministry for the speedy fulfilment of requests broadcast by radio. It would also enable networks to employ fewer telephone staff, resulting in a further saving. 50 There was a related matter, namely a practice drivers had developed of sub-contracting accepted jobs to drivers of their own choice without the knowledge of the taxi networks. 51 The proposal did not have the support of drivers generally, however, and most seem to have opposed it. Drivers were entitled to accept work from sources other than their radio network bookings and many did, for example, by means of their own mobile telephones and otherwise. Many had regular bookings from valuable patrons and they did not wish to let them down. These appear to be some of the reasons why drivers made arrangements with colleagues that they would accept jobs on casual referral as needed. Such collaborations were called Trunk Groups. The drivers created them so that they could continue to service regular customers and at the same time hold themselves open to accept work from the networks to which they were paying substantial fees. The networks did not like Trunk Groups because the result often was that when a patron called a particular network and the network accepted the call, the job was carried out by a driver and a vehicle not associated with that network. Mr Hyer suspected that some drivers in Trunk Groups were not licensed to drive taxis. 52 The no destination scheme would oblige drivers to carry out any booking accepted regardless of the time the job would take. Drivers saw that as threatening their ability fully to utilise their time. If a driver were offered a job, say, an hour before he was due to commence a regular job, how could he accept it, not knowing how long it was likely to take? It might cause him to let down his valued patron. So he would have to refuse it. 53 The different views were aired and the Ministry of Transport decided to introduce a scheme, but only for a trial period. The set fee for radio bookings was increased by thirty cents for the duration of the trial to compensate drivers for losses so incurred during that period. 54 On or before 8 April 2004 the Acting Director-General of the Ministry wrote to the New South Wales Taxi Council a letter including these passages -

Consistent with arrangements for implementation of the annual fare increase, a three week period will be allowed for the installation of new customer information stickers and adjustment of meters, if required. Accordingly, all taxis must have taken all necessary action by 17 December 2004. The authorisation notice will be published in the Government Gazette to reflect these arrangements. 57 Mr Hyer conceded that drivers were opposed to the scheme, but said that some were happy with it. Those who had formed Trunk Groups were not. He said that the desire was to achieve the efficiencies and consequent savings of costs which I have summarised. It was not to put an end to Trunk Groups. Although he was opposed to them, they were a separate matter. He conceded that the scheme would affect drivers in the way I have summarised. He conceded his strong support for the scheme and was still of the opinion that the trial ought not to have been stopped. He would support such a scheme now. 58 The defence submissions came down to this. The scheme was likely to injure drivers by effectively denying them work offered within the critical time before a contracted engagement. Although Mr Hyer acknowledged in cross-examination that there would be an effect upon drivers, he had no real recognition of what it meant for them. It was destructive. His support of the scheme was the act of a man used to getting his own way. 59 An attack was made on Mr Hyer's credibility. He had been asked about Trunk Groups and had said that one effect of them was that no record was kept of which driver and which taxi was ultimately used to complete any particular job. The Ministry, he said, required such a record for the purposes of following up reports of lost property and the like. Mr Molomby pointed out a report, which may be accepted, recording that some fifty-six per cent of taxi journeys commence not with a radio booking at all but with a hailing in the street or at a taxi rank. So for more than one-half of all taxi journeys there is no record of which driver and which car carried any particular passenger. 60 These criticisms may be justified, but I do not think that they assist the defendants. The question of Trunk Groups was really separate, as Mr Hyer said, and I accept that his enthusiastic support was given with the intention of achieving savings and giving the public a better service. Some might see his attitude as cool, concerned more with overall efficiencies than with the loss those efficiencies might produce for some individuals. Some might disagree with him. But these are matters for judgment of a kind that businessmen are often required to make, and it is difficult to see how this evidence justifies a description of Mr Hyer as a "little Hitler", meaning that he was conducting his business in a wild, unpleasant and dictatorial manner. 61 Since none of the matters particularised proves the truth of the imputation, and since they do not do so in combination, the defence of Justification fails. 62 No question arises as to the contextual truth of the remaining imputations.

Qualified privilege 63 In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not-restricted the right to make them within any narrow limits: Parke B, delivering the judgment of the Court in Toogood v Spyring (1834) 1 CM & R 182 AT 193. 64 Qualified privilege arises at Common Law where the person who makes a communication has an interest or duty, legal, social or moral, to make it to the person to whom it is made and the person to whom it is made has a corresponding interest or duty to receive it: Adam v Ward [1917] AC 309. 65 The reciprocity of duty or interest is essential: Adam v Ward; Bashford v Information Australia [2004] HCA 5 at [9]. 66 The evidence shows that substantial changes have taken place in the taxi industry over the past twenty years. Whereas the taxi networks which provide services like motor vehicle conversion and maintenance and radio call facilities used to be co-operative societies whose members were the owners and operators of taxi plates, such networks these days tend to be incorporated. Those who operate taxis may not own shares in these corporations. Whereas years ago a person wishing to operate a taxi would first need to purchase a plate, these days a person may do so by renting a plate. Whereas co-operative networks used to comprise a small number of plate-owning members, they have become larger. Since it incorporated, Cumberland Cabs has increased the number of taxis it manages from two or three hundred to about nine hundred. Of all its plates, about two-thirds are owned by investors who neither operate nor drive the taxis to which the plates are affixed, but who procure Cumberland Cabs to manage the plates by letting them to operators. There are now about ten taxi networks in New South Wales. The number of radio call networks is about four, including agencies of Macquarie Bank, which have recently entered the market. One important effect of these changes is that whereas operators used generally to have an investment in the plate and, as members of a co-operative, in the body that provided the services they had to have, nowadays operators more often than not lack such a financial interest. Operators leasing plates from Cumberland Cabs have no more substantial interest than a lease terminable on twenty-eight days' notice. Since operators have a less secure financial interest than formerly, the position of drivers who are not operators is likely to be correspondingly less secure than formerly. The industry has changed from one in which investor-operators co-operate to further their common interests to one in which investors and networks have some interests and objects in common with operators and some interests and objects which may compete with those of the operators. The trends I have described are true of Cumberland Cabs. The position is unlikely to be different in other networks. 67 Operators have substantial overheads. They must pay rent for the plates they lease. They must pay their networks fees for providing facilities for work on and management of motor vehicles and for radio call facilities. Insurance is dear. Overheads are likely to be at least $850 per week for a taxi. 68 As the publications the subject of Mr Hyer's complaint show, substantial change continues to be made in or to be contemplated for the taxi industry. This case is concerned with three important such topics, namely the development and management of credit systems and competition between them, the cost and availability of insurance and the desire for and the opposition to "no destination" radio bookings. The evidence of the magazines published by the defendants and the messages and assertions passed on to Mr Lindholdt by persons engaged or employed in or associated with the taxi industry show that there is lively debate on topics germane to the conduct of the industry and the differing interests of those engaged in it. 69 It was submitted by Mr Molomby that in these circumstances operators and drivers have an interest in being informed about the affairs of the industry and in communicating with each other about them, particularly about working conditions. The networks themselves can and do advertise and publicise material in explanation of their position and in furtherance of their interests. The interest of the operators and drivers is to be informed on these topics independently of the publications of the networks themselves. 70 I think that the operators and drivers of taxis have an interest in being informed about such topics, which are the subject of debate in the industry. I think that the defendants have a reciprocal interest in publishing to affected persons news of and opinions about matters of current controversy. 71 It seems to me that the taxi industry is important to the convenience and welfare of society and that the communication to those involved of matters of debate about the control of the industry and the conditions of work or employment within it promote that convenience and welfare. 72 I have read a number of issues of Cabbie magazine. They typically contain news and comment on such subjects as Government activity in regulation of the industry, driving laws, fuel consumption and prices and the activities of the networks. They contain letters written, I think, by taxi drivers or others directly interested in the industry, on subjects germane to the industry. Apart from trivial matters, they do not appear to contain material not directly or indirectly related to the taxi industry. 73 Cabbie magazine has a modest list of subscribers, all of whom I infer have an interest in following the debate on matters germane to the industry, but for the most part it is distributed free of charge by delivery to places like taxi depots and washes and LPG service stations frequented principally by taxi drivers. So distributed, it comes to the notice of the operators and drivers for whose consumption it is intended, but goes no further than is necessary to do so. 74 To the extent of the subscriptions received by Cabbie magazine, I think that the defendants have a moral duty to publish the magazine. Otherwise, they have an interest in publishing it. That duty and that interest are reciprocal to the interest of the persons for whose benefit it is published. 75 Although there are other magazines directed to those in the taxi industry dealing with similar topics, they do not, I think, fulfil the same function as Cabbie magazine. The one called "Meter" is published by the New South Wales Taxi Council, which represents the networks, claims to have a circulation of 35,000 (as against 4,000 for Cabbie). I infer that the New South Wales Taxi Council is unlikely to volunteer through the medium of Meter magazine material critical of the networks or investors. The other magazine of which there is evidence is variously called "Premier" or "Premier Post". It is an organ of Cumberland Cabs and Premier Cabs and might be expected to promote the interest of those networks. 76 There is no evidence that Cabbie magazine has been published to anyone outside the taxi industry. Mr Hyer's solicitor gave evidence of finding one in the back seat of a taxi. I would infer that the driver, rather than a stranger using the taxi, obtained it and left it in the vehicle. I conclude that it is unlikely that any person not having an interest in the industry and its affairs would read Cabbie magazine. I reach this conclusion notwithstanding that there is printed on the cover of every edition of Cabbie magazine the injunction - Let your passengers have a look at Australia's most widely read taxi magazine. 77 I doubt whether passengers would ever do more than cast an occasional glance at the magazine, given the generally short duration of taxi journeys and the nature of the topics dealt with, which would not generally interest members of the public. 78 Mr Blackburn submitted that the defendants published Cabbie magazine in order to make a profit and had a commercial interest in doing so. Therefore, he submitted, they had no common interest to publish the matters complained of. 79 This submission should be rejected. Even if the facts were as submitted, no adverse conference would flow from the profit motive: Bashford v Information Australia at [26]. As it is, there is no evidence that in publishing Cabbie magazine the defendants intended to make a profit or did so. 80 Given the restricted subject-matter of the magazine, the narrow range of persons interested in that subject-matter and the restriction of the distribution of the magazine to those persons, I think that, subject to the resolution of the issue of malice, publication of the magazine was made on occasions of qualified privilege. In particular, subject to the resolution of the issue of malice, the editions of December 2004 and February 2005, containing the defamatory material, were published on occasions of qualified privilege.

Malice 81 An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement. A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice…proof of express malice destroys qualified privilege: Roberts v Bass [2002] HCA 57 per Gaudron, McHugh and Gummow JJ at [75]. 82 Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive (footnote omitted) (at [76]). 83 Ignorance, carelessness and stupidity are not evidence of malice, and their presence does not destroy an occasion of qualified privilege. Once the occasion is privileged, the protection will not be defeated because the publisher was ignorant, careless or stupid: Bashford v Information Australia per McHugh J at [41]. 84 Mr Blackburn submitted that the defendants were actuated by malice in publishing the matters complained of and additional articles. The publications were actuated by improper motive and the result was that qualified privilege was destroyed. Mr Lindholdt disliked Mr Hyer, and harboured ill-will towards him. The Court should infer that the publications were actuated by the same dislike and ill-will. 85 Mr Blackburn began with some general submissions about the motivation of the defendants. He submitted that Mr Lindholdt saw his role as being automatically adversarial, of having a crusade, of taking the side of the drivers and operators right or wrong, and consistently with that attitude writing about Mr Hyer in scathing terms without checking whether his assertions of fact were true. 86 Mr Molomby pointed out that Cabbie magazine had been published for years before the articles complained of. So far as anyone knew, no prior issue had contained matter critical of Mr Hyer. Mr Lindholdt did not know Mr Hyer. The articles complained of were written in a style typical of those appearing generally throughout the several issues of the magazine. Articles were written on contentious matters in a forthright manner. They displayed Mr Lindholdt's strong opinions. They used pejorative expressions which were not and could not have been understood as literally intended, for example, "little Hitler", "lost the plot", "going feral", "mafia", "bastards". The choice of expressions and the forthright statements of opinion did not demonstrate that Mr Lindholdt was actuated by dislike or ill-will towards Mr Hyer. The Court should accept his evidence that he had on earlier occasions tried to speak to Mr Hyer about contentious matters but had been unable to do so. 87 Referring to the September 2004 article, Mr Blackburn submitted that the reference to "the selfish greed of the NSW Mafia", which expression Mr Lindholdt conceded in evidence was intended to include Mr Hyer, showed that he regarded his role as one of aggressively taking the side of drivers against the industry, right or wrong. 88 It was common ground that although he had been writing about the industry for years, Mr Lindholdt had not before written about Mr Hyer. Mr Lindholdt did not know Mr Hyer. In the circumstances the highly offensive tone of the article is surprising and it is no answer, I think, to say, if it is the fact, that Mr Lindholdt generally wrote in a rude manner on contentious matters. 89 Coupled with the unnecessarily offensive tone employed is the fact that Mr Lindholdt did not speak to and did not try to speak to Mr Hyer before publishing. It may well be true, as he said, that he had on earlier occasions tried unsuccessfully to ask Mr Hyer's comments upon some matters. But the occasion called for enquiry. Mr Lindholdt knew that the topic of Taxi Care Club insurance was contentious and might have supposed that there was another side to the story. He made no attempt to check with the Ministry about it either. And while the first three paragraphs of the article purported for the most part to report fact, the fourth was pure opinion, bordering on the venomous. 90 Later on Mr Lindholdt discovered that one of his informants, Mr Harken Err, had an interest in Taxi Care Club insurance. I am also satisfied that he was told that Taxi Care Club insurance certificates did not meet the requirements of the Ministry. Yet neither of these things caused him to retract any of the statements and he never apologised. The fact that during his evidence he claimed yet later to have read material suggesting that he had been misinformed about the Ministry's disapproval of Taxi Care Club certificates does not affect the conclusion that he allowed to stand contentious statements of fact which he had reason to believe were untrue. 91 Taken together, these matters show that as early as September 2004 Mr Lindholdt was reckless as to the truth of the things he was alleging about Mr Hyer. 92 There was this evidence about the article of September 2004 - Q. The headline is "Hyer loses the plot; correct? A. Yes.

101 There is an inconsistency in these answers. I am satisfied that Mr Lindholdt believed, though he had no proof, that the actions of Premier Cabs were the actions of Mr Hyer. I am satisfied that he knew that readers would understand the references to "Premier management" in the second-last paragraph to be to Mr Hyer and that he was content that his readers should gain that understanding. 102 Mr Lindholdt had no information about and no justification for his use of the expressions "like a woman scorned" and "with glee". They came from his imagination, coloured, I think, by his then well-developed dislike for Mr Hyer. 103 The whole of the evidence establishes that by 2005 Mr Lindholdt was on a determined campaign to publish persistent and negative statements about Mr Hyer. I will not set out the detail of all the evidence, but there appears a string of derogatory comment in editorials and articles in Cabbie magazine in August 2005, October 2005 (two), February 2006 (two) and October 2006. There were references to going to bed with the devil and the comment - So if Peter Hyer and his mob pisses you off… 104 In July 2005 Mr Lindholdt wrote part of an e-mail, exhibit L, that ran as follows - Such a pity some people would stoop so low as to carpet a cabbie for keeping members on this list informed on what is going on in your region - and to think we live in a country where free speech is allowed and welcomed. Who ever gave you the idea that "free speech" was legal let alone welcome in this country? I am being sued for defamation for writing that one of the NSW taxi industry mafia bosses is a "little Hitler", "has gone ferral" and "has lost the plot". The truth is that he is "a little Hitler", he did lose the plot and he was going ferral on one point (no desto). However, especially in NSW, the truth is not a defence against defamation. Talk about "free speech". … The NSW Taxi Council, according to a copy of its minutes from a Special General Meeting in November 2004 (I have a copy), agreed to support anyone who felt defamed by articles in Cabbie. A month later Peter Hyer, Managing Director of Premier Cabs, Director of Cabcharge and on the board of the NSW Taxi Council, accused Cabbie and me of defamation for comments made in a series of articles going back to September 2004. A conspiracy ……surely not. Somehow we have to stop these bastards from intimidating us and constantly abusing their powers through their financial superiority and monopolistic status. I only hope that ALL Mackay drivers stand united with Colleen when she has to face the music this week. If not, she will most likely lose a job she obviously loves and enjoys. I'm not a union person, but I can't knock their slogan "United we stand, devided (sic) we fall". 105 Mr Lindholdt was asked about his state of mind at the time of the publication of the February 2005 article. There was this evidence - Q. I suggest to you that you were conducting this campaign for the purpose of destroying him as a force in the taxi industry? A. As you are aware, I can't remember having ever written anything about Mr Hyer before in the five or six years Cabbie has been published in terms of pinpointing him as an individual. The only reason why Mr Hyer came to the attention of taxi drivers, and I can assure you most taxi drivers don't even know who he is, although he likes to think otherwise-- … The only reason why I seem to have run a campaign against Mr Hyer is that he made himself prominent on two fronts at the same time, and that was on support of the no destination scheme, and he was the only executive in the taxi industry who supported it, all the other networks were against it, and the fact that he ran a campaign against a new insurance company that had come in and undercut the existing rates offered in New South Wales.

111 The compensable harm to Mr Hyer's reputation therefore relates to his standing in the taxi industry. Since there is no evidence of communication of defamatory matter to anyone in the wider or general community and since the distribution of Cabbie magazine was confined to those directly involved in the industry I am not satisfied that Mr Hyer's reputation in the general community suffered harm. 112 There is no direct evidence of harm to Mr Hyer's reputation in the taxi industry, though I would readily infer that harm must have resulted. The senior and influential position he holds entitles him to be jealous of his business reputation and he should receive substantial damages for the presumed harm to it. 113 One piece of evidence was relied on by Mr Blackburn as proof of, inter alia, harm to Mr Hyer's reputation. It is exhibit F, an information sheet that was sent to Mr Hyer through the post. The person who completed the form did not give a name other than "James Bond". The name of that person's company was said to be "Wogang P/L". Counsel did not suggest that that name had any particular significance. The form required the insertion, for various kinds of insurance, of the names of the insurers and the policy numbers. Inserted as names were "Peter Hyer P/L" and "Peter Hyer Insurance Co" and as policy numbers "007 Thief" and "007 Crook". The form also refers to an Etag account in the name of "Peter Hyer Bookmakers P/L". 114 The form is undated. So is the envelope in which it was received. Mr Hyer's evidence was that it was received some time after the publication of December 2004, probably early in 2005. However that may be, the subject matter of the form is obviously unrelated to what was published in December 2004. The only reasonable inference is that the one who sent the form had taken umbrage at the publications of September and November 2004. They, not the later publications, were the ones concerned with Mr Hyer's attitude towards taxi insurance proposals. As the jury found, those publications did not defame Mr Hyer and the defendants are not answerable for their effect on him. 115 I accept the evidence of Mr and Mrs Hyer that Mr Hyer's feelings were hurt as a result of reading the articles of December and February. Plainly, the use of the term "little Hitler" and the carriage of the imputations found by the jury must have been very hurtful. 116 Mr Molomby submitted that most of the hurt caused by the whole series of publications must have resulted from those of September and November 2004. Most of the hurt was therefore not compensable, since the defendants were not responsible for the consequences of those of September and November. Damages, it was submitted, should be correspondingly reduced. I take it that the consequences of receiving the form exhibit F would illustrate the point. 117 There is no doubt that it was all four of the publications, made in September, November, December and February, that hurt and concerned Mr Hyer. He brought these proceedings because of them all. Those of September and November must have been hurtful. Assertions that he had "lost the plot" and had blown "his cool" and to "selfish greed," as well as references to the "mafia" must have hurt Mr Hyer's feelings. It is notable that the form exhibit F, the only evidence of any reaction from any third person, resulted from the publications of September and November. Even so, I do not think that most of the hurt must have resulted from those publications. The calling Mr Hyer a "little Hitler", the calling the present action "frivolous" and the asserting that Mr Hyer conducted his business in a "dictatorial manner", relied on the fear of drivers and reacted to challenges to his authority in an increasingly paranoid fashion constituted a substantial part of the matter complained of. Of course, Mr Hyer is not entitled to compensation for the effect upon him of the publications of September and November, and I shall temper the award of damages accordingly. 118 The award of damages will take into account the defendants' failure to apologise. 119 Mr Blackburn contended for aggravated damages and repeated his submissions about malice, summarised above. The real thrust of the submissions, however, relied on what was said to be the conduct of the defendants towards Mr Hyer that was improper, unjustifiable or lacking in bona fides. Mr Blackburn referred to Triggell v Pheeney (1951) 82 CLR 497. It was submitted that the defence of truth was hopeless from the beginning and that the defendants must have known it. So their conduct in defence of the case was improper, unjustifiable and lacking in bona fides. 120 As I have said, the defendants were reckless about the truth of their assertions but I am not satisfied that they knew that the assertions were untrue. I am not satisfied that the maintenance of a defence of truth was hopeless, so as to categorise their conduct of their case as improper, unjustifiable or lacking in bona fides. This is not in my opinion an appropriate case for an award of aggravated damages. 121 Mr Molomby submitted that Mr Hyer's real motive in bringing this suit was not to vindicate himself but to injure Cabbie magazine. Mr Molomby referred to an article published in the Financial Review newspaper on 28 September 2006, a copy of which became exhibit 2. The article was substantial, beginning on the first page and continuing across a double spread inside the newspaper. It was strongly critical of the New South Wales taxi industry and mentioned by name Mr Hyer, Premier Cabs and Cabcharge. It discussed the high cost of taxi insurance in New South Wales and the efforts of Mr Karas to market Taxi Care Club insurance in Sydney. 122 Mr Hyer was asked about that article but said that he had not read it. I think that the answer was false. Plainly, he was interviewed for it and was quoted in it. Not long after the article had been published, the October 2006 edition of Cabbie magazine, which Mr Hyer must surely have been keeping an eye on by that time, reported the article. I am satisfied, notwithstanding Mr Hyer's denial, that he read the article. I note the evidence of Mr Critchley that it was most likely included in papers distributed to members of the Adelhill board. 123 Mr Molomby went on to draw attention to the second portion of the e-mail exhibit L, extracted at para 104 above, asserting the New South Wales Taxi Council's resolution in November 2004 to support anyone who felt defamed by articles in Cabbie magazine. 124 Mr Molomby submitted that Mr Hyer had sued Cabbie magazine but not the Financial Review newspaper, falsely pretending not to have read the article exhibit 2. Putting these pieces of evidence together, the proper conclusion was that Mr Hyer had singled out Cabbie magazine (supported, it was implied, by the New South Wales Taxi Council) in order to injure it.

125 I do not accept that that is an appropriate conclusion to reach. First, notwithstanding considerable efforts made by the defence during the trial, no evidence emerged of the alleged resolution of the New South Wales Taxi Council. I am not prepared to accept as satisfactory evidence of the existence of the resolution the statement to that effect in the e-mail exhibit L. I would not otherwise infer that Mr Hyer had not brought these proceedings in order to vindicate himself. I note that upon his instructions his solicitor wrote to the defendants within days of the December 2004 publication, demanding an apology and threatening suit if it should not be forthcoming. The proceedings were commenced very soon thereafter. Notwithstanding Mr Hyer's false denial that he had read the Financial Review article I think that this suit was commenced to vindicate and to recover damages for harm. 126 I assess damages in the total sum of $100,000.00. Interest 127 The parties were agreed that the commencement rate for interest was four per cent per annum and the only argument was whether all the compensable harm should be taken to have been inflicted at or close to the beginning of the period between publication and judgment or whether some spread should be assumed. It seems to me in view of the fact that the libels were published in a form likely to subsist for some time that the resulting damage should be taken to have been spread over the period. The greater part of the damage would, I think, have resulted early in the period and I propose to allow approximately three per cent per annum on the sum assessed. Damage resulting from the December 2004 publication would have commenced at some time during that month and from the February 2005 publication at some time during that month. The range of periods to judgment is about two years and five months to about two years and seven months. I shall give effect to my intention by calculating at three per cent per annum on a notional period of two and one-half years. That calculation produces $7,500.00.

Peter John Hyer v Cabbie Pty Limited and Another

At a glance

Court

Decision date

Before

Source

Judgment (138 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)

Cited By (2)