Cush and Boland v Dillon [2011] HCATrans 82
[2011] HCATrans 82
[2011] HCATrans 082
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S309 of 2010
B e t w e e n -
AMANDA CUSH
Appellant
and
MERYL LURLINE DILLON
Respondent
Office of the Registry
Sydney No S310 of 2010
B e t w e e n -
LESLIE FRANCIS BOLAND
Appellant
and
MERYL LURLINE DILLON
Respondent
FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 7 APRIL 2011, AT 10.03 AM
Copyright in the High Court of Australia
__________________
MR T.A. ALEXIS, SC: If the Court pleases, I appear with my learned friend, MS P.M. SIBTAIN for the appellant in each of the two appeals. (instructed by Cole & Butler)
MR G.O’L. REYNOLDS, SC: May it please the Court, I appear for the respondent in both appeals with my learned friend, MS G.R. RUBAGOTTI. (instructed by Banki Haddock Fiora)
FRENCH CJ: Yes, Mr Alexis.
MR ALEXIS: Your Honours, the appeal concerns a conversation that occurred in a café in the main street of Moree in country New South Wales back on 8 April 2005, six years ago tomorrow. The conversation was between the respondent, Mrs Dillon, and a Mr James Croft who was then the chairman of the Border Rivers/Gwydir Catchment Management Authority and for convenience I will refer to that authority as the CMA and your Honours should understand that that is a statutory authority established under the Catchment Management Authorities Act (NSW).
Mrs Dillon, the respondent, was a director of that authority and she had been since May 2004. Mr Les Boland, one of the appellants, was also a director and had been since August 2004, and Ms Amanda Cush, the other appellant, was then the general manager of that authority and had held that position since about mid‑2004.
In relation to that conversation, the jury returned answers to the questions that your Honours will find set out conveniently in appeal book 2 at 615 and 616 and could I take the Court to that. Before the jury were two matters complained of. The first matter is that the subject of question 1 on page 615 between lines 10 and 20 in respect of which, as your Honours see, the foreperson of the jury answered that question in the negative and what followed was the entry of a verdict on that matter in favour of the defendant, Ms Dillon. Question 2 was answered in the affirmative:
Has the plaintiff Leslie Boland established that on 8 April 2005, the defendant said to James Croft the following words or words substantially the same, the second matter complained of “It is common knowledge among people in the CMA that Les and Amanda are having an affair.”
Your Honours will then see from lines 40 and following on page 615 the imputations that the jury accepted, firstly, in respect on Mr Boland:
(a) That as a member of the board . . . Catchment Management Authority, he was acting unprofessionally by having an affair with the general manager of that organisation?
and, secondly:
(b) That he was unfaithful to his wife?
There was no issue below that at the time of publication Mr Boland was married. In respect of those imputations the jury found, as your Honours see in the next question, that each of those imputations were defamatory of Mr Boland. In relation to Ms Cush, your Honours will see on 616, from about line 15, the jury rejecting the first matter complained of as pleaded and in identical terms the second matter between lines 30 and 40 and, in respect of the imputations concerning Ms Cush, your Honours will see from line 50 on 616, the imputation:
(a) That as general manager of the Border Rivers Gwydir Catchment Management Authority, she was acting unprofessionally by having an affair with a member of the Board of that organisation?
Then over the page:
(b) That she was undermining the marriage of Leslie Francis Boland and his wife?
The jury answered the following questions to the effect that those imputations were defamatory of Ms Cush. The issue on this appeal is whether the defamatory imputations conveyed by the respondent to Mr Croft were published on an occasion of qualified privilege. Her Honour Justice Bergin who wrote the judgment for the court below, with whom Justice Allsop and Justice Tobias agreed, found that those defamatory imputations were published on such an occasion.
Your Honours will find the finding in that respect in the judgment of the Court of Appeal at page 659, but as your Honours go to that, could I ask your Honours to pause ever so briefly at page 636 which is the commencement of Justice Bergin’s judgment for the purpose of observing that in paragraph 6 of her Honour’s judgment, having identified the defamatory matter at line 20, her Honour defines that as the statement - your Honours see that in brackets - and then by way of contrast importantly we would wish to draw your Honours’ attention to what her Honour then says under the subject of background at the bottom of that page.
If your Honours pick up the last line at line 60 where her Honour refers to “the genesis of a rumour that the Respondents were having an affair” and her Honour there defines that as “the rumour”. That definition is significant when your Honours have regard to the terms of the findings of the Court at page 659 of the book. At paragraph 53 her Honour finds that:
the existence of the rumour that the Respondents were having an affair was relevant and sufficiently connected to the privileged occasion as to attract the defence of qualified privilege at common law.
Further, her Honour was satisfied:
that the trial judge fell into error in failing to find that the publication of the “rumour” –
as distinct from the statement, as her Honour defined it –
to Mr Croft was an occasion that attracted the defence of qualified privilege.
In our submission it is plain from the reasons that the reciprocal duty and interest that defined the occasion was the existence of the rumour. Not only does her Honour say so in paragraph 53 but if your Honours turn back a page the reasons really start at paragraph 49 on 657 but importantly, we would say, it becomes plain from paragraph 52 on page 658 about halfway through that paragraph, your Honours will see about line 50:
The rumour of the affair was intrinsically intertwined with the concerns the Appellant raised with Mr Croft about the nature of the relationship between members of the Board and staff members and the complaints about the grievance process. That a Regional Director of the Department had become aware of the rumour was a new dimension to its existence, elevating it to an importance that imposed a duty on the Appellant to convey its existence to the Chairperson. Equally the Chairperson had a reciprocal interest in receiving the information.
We interpolate there, information concerning the existence of the rumour. Then her Honour continues:
To allow the Chairperson to remain ignorant of the rumour when it had been raised by staff of the CMA and discussed between a Board Member and a Regional Director of a Department that had certain supervisory functions over the CMA would have been in breach of the Board member’s duty to inform the Chairperson of the information relevant to matters that were clearly to be the subject of investigation by the Department and possibly by ICAC.
Your Honours observe, of course, the repeated reference to the rumour and not the statement as her Honour defined it. So, in our submission, when one understands the reason for the finding it does, in our submission, overlook the fact that the respondent did not convey the existence of the rumour to Mr Croft. What she did was to publish the fact and convey the defamatory imputations. Therefore, any duty or interest founded on the existence of a rumour was not a duty that was engaged when the defamatory matter was published. So, in our submission, the Court fell into error by failing to define the occasion by reference to the defamatory imputations. Having put that to your Honours, can I step your Honours through the circumstances that led to the conversation and, importantly, the publication of the defamatory matter.
BELL J: Just before you do that, can I inquire about paragraph 61 on appeal book 662. Justice Bergin records that a submission had been put at trial relying on the publication of the fact that it was well known that the respondents were having an affair without qualification as being foreign to the occasion of the asserted privilege.
MR ALEXIS: Yes.
BELL J: She notes that no party in the Court of Appeal claimed error on the part of the trial judge for failing to deal with that matter and, indeed, when one turns to the notice of appeal in the Court of Appeal – at 626 there is the notice of appeal on one of the appeals – and that is supportive of her Honour’s summary of the way the matter appears to have been presented in that Court. Indeed, the second ground of appeal complains of error in the finding that the appellant spread the rumour based on hearsay evidence – that is the complaint about the conversation with Ms Chittenden.
MR ALEXIS: Yes.
BELL J: But what I am raising with you is that it seems as though this submission might be being fashioned in this Court rather differently to the way matters proceeded in the Court of Appeal.
MR ALEXIS: Your Honour, the submission concerning the publication of the defamatory matter being foreign to the occasion, or irrelevant to the occasion, or extraneous, was certainly a submission that was put to the Court of Appeal.
BELL J: Her Honour says:
No party in the appeals has claimed that the trial judge fell into error in failing to deal with the matter on the basis –
and when one turns to the notice of appeal, it does seem ‑ ‑ ‑
MR ALEXIS: Yes. Could I respond to your Honour’s question more helpfully?
BELL J: Yes.
MR ALEXIS: One of the difficulties in relation to the judgment of the primary judge is that his Honour did not come to a final position on qualified privilege at all. His Honour mooted, for want of a better expression, that it may or may not have been a privileged occasion but by reason of the finding that his Honour came to on malice, his Honour preferred to determine the case on that basis. So, therefore, there was no treatment of the relevance or foreign issue by the primary judge and it is to that, in our submission, that her Honour is there referring and particularly, where her Honour says at line 49 on page 662.
No party in the appeals has claimed that the trial judge fell into error in failing to deal with the matter on the basis that the Appellant had elevated the rumour to fact.
His Honour did not deal with that because of the way the matter was dealt with respect to malice. Now, could I deal with the circumstances and can I approach that subject in a chronological way, and could I start at page 637 of the appeal book. Your Honours see that in early 2005 a:
Mr Mills informed [the respondent] that he had a matter of grievance in relation to Ms Cush –
the general manager, and I am reading paragraph 12 of her Honour’s judgment at 637 –
and that he felt that his matter had not been dealt with impartially because he believed that the Respondents were having an affair. Also at around this time Mr O’Brien informed the Appellant that he had “some concerns about the CMA” and “some concerns about the relationship” between the Respondents that related to some issues about the Grievance Committee.
Then at paragraphs 13 and 14 on 638 her Honour deals with what came forward from a Mr Pitman, and your Honours see in paragraph 13 the reference to the “tea room” and then ultimately in paragraph 14 her Honour refers to Mr Pittman having some conversations with a Mr Hart and a Ms Bate who were from the Department, and then in the final sentence of 14 your Honours see:
Mr Pitman conveyed his knowledge of the rumour to [Ms Dillon] “some time around February 2005”.
Now I should say to your Honours that Ms Dillon’s evidence was that this information came to her in late 2004 or early 2005. The timing seems to be a matter in respect of which our learned friends have taken issue in the submissions. It does not really matter, in our respectful submission, because the evidence demonstrates that the respondent did nothing with the information after she had received it, and that is demonstrated by the following material.
If I can take your Honours now to page 646 of the book where her Honour sets out evidence that the respondent gave on that subject matter, and if your Honours could look in particular on 646 from line 50 where Ms Dillon is confirming that she:
didn’t believe the accusation about the existence of an affair, that those three gentlemen told you of in late 2004 . . .
A.No, I didn’t.
Q.May we take it that, if you thought there was a grain of truth in it, you would have taken steps promptly to raise it with Mr Croft or some other appropriate person.
A.I had no evidence either way.
Then your Honours see the suggestion at the bottom of 646:
you sat on the information that those three gentlemen had said to you about the existence of an affair for about two to three months and spoke for the first time about that subject matter to Mr Hart –
who is the regional director from the Department –
in late March or early April 2005.
A.Other than to advice them if they had concerns they should raise them with the chairperson.
Q.But it’s correct for his Honour to understand that, during those intervening months, from early January 2005 until the end of March, you felt no sense of duty or obligation to speak to anybody about what those three staff members had said to you, did you?
A.As I said, I believed the correct process was for them to raise these matters and I had urged them to do so, and I believe in one instance that in fact they may have been raised with the chairperson.
Then your Honours see the question is put again, and your Honours see the answer:
A.To speak to anyone about it? That’s the specific point in that question? No I didn’t believe that I had a duty to speak to anyone about it, no.
Q.The reason why you didn’t believe you had a duty to speak to anyone about that, is because you didn’t believe the allegations. Correct?
A.I had no reason to believe the allegations at that point in time, other than they were allegations.
Then if we could pass over the next couple of questions and answers and at line 50 the subject of feeling no sense of duty or obligation is raised again and then your Honours see at the top of the next page, it is made crystal clear, in our submission, that during the intervening months the last thing that Ms Dillon would have done was to raise allegations made by the staff members when she had seen no evidence and did not believe the truth of it and she accepts that proposition.
Our learned friends rely on the content of what was conveyed by the three staff members. That is important, of course, but in our submission, it is of little significance ultimately when coming to scrutinise the circumstances of publication, because, in a sense, it was old news. But more importantly the respondent had done nothing in terms of conveying its existence to the chairman until 8 April 2005.
The next event of significance, your Honours, is the telephone conversation that occurred between Randall Hart who was the regional director of the Department of Infrastructure, Planning and Natural Resources, and he was based in Tamworth, and Ms Dillon. Could I just briefly deal with the question of timing? Her Honour at page 639 of the judgment at line 1 puts that conversation as occurring 30 March 2005. His Honour the primary judge puts the conversation as occurring in late March 2005 and that is at page 648 of the judgment, paragraph 38. I do not take your Honours to it.
Mr Hart actually gave evidence on this question of timing. His evidence was that it occurred on or about 30 March and the transcript reference for that is appeal book 1 page 326, line 45. Then there is the memorandum that Mr Hart prepared which I will come to and as your Honours will see that is dated 1 April 2005. Now, what does one get out of that? Not a lot, in our submission, because whether the conversation with Mr Hart occurred before or after some emails that were passed between Mr Croft, the chairman, and Ms Dillon, is of no particular consequence because what is plain is that at the date of publication, which was on 8 April, Ms Dillon had the conversation with Mr Hart and she had exchanged these emails, that I will come to, with Mr Croft.
The conversation with Mr Hart is set out on page 648 of the book and this is in the part of her Honour’s judgment where her Honour quotes extensively from the judgment of the primary judge and your Honours see that from about line 25 we have the evidence that was given before the primary judge on the conversation with Mr Hart. She was asked in‑chief what is her best recollection and she responded this way:
He commenced the conversation by saying, “Hello, Meryl. How are you? This is Randall Hart here. I’m ringing you because I have some serious maters relating to the CMA that I need to discuss.” He said, “I’m ringing you because you’re the only one I can rely on to give a straight answer.” He said, “I have been talking to some people – more senior people in the department in Sydney and the union.” He said that he was raising the matters with me because they involved some of the ex-Department of Infrastructure, Planning and Natural Resource staff members and that some of his staff – also some of his staff in Tamworth, I think. He said, “Do you have any recollections of the trip to Tweed Heads?” He asked me if – no, he actually stated that there had been some irregularities in the vouchers for that trip, presented by Amanda Cush. He asked me if I was aware of how Ms Cush [travelled] to Tweed Heads.”
The trial judge and her Honour did not extract the whole conversation and there are a number of elements of the conversation that are significant and, so because of that could I ask your Honours to go to her evidence at page 201 of the first appeal book. If your Honours have page 210, your Honours will see from line 25 to 40 is the passage that I have just read out of the judgment and then the evidence continued on page 211. At about line 10, Ms Dillon said:
I told him I wasn’t really sure –
That is the answer to how Ms Cush travelled to Tweed Heads.
but I believe that she had travelled in a vehicle that belonged to the CMA with Ashley Pitman.
Then there is more detail concerning the issue of the trip to Tweed Heads that I will not take time on. Then the conversation turns to other matters and your Honours will pick that up on 211 from about lines 35 and following, particularly line 40. The question:
Were there any other subjects discussed, apart from this Tweed Heads issue?
There is reference to a person by the name of Lyn Cullinane and he said:
“Do you know anything about the Aboriginal Identified Position that was offered to Lyn Cullinane whereby it was asserted that the position had been offered and then withdrawn following discussions at the board?”
She told him:
No, I didn’t.
Then over the page:
Q. Was there another subject discussed?
A. I raised some issues with Mr Hart that arose out of that – was the fact that I had felt uncomfortable discussing personal staff at the board meetings, and I also raised with him the fact that there had been a directive given to the general manager that she was not to employ any further ex-Department of Infrastructure, Planning and Natural Resources personnel.Q. Was that the extent of the discussion or was there another subject that was discussed?
She responds by the reference to the report of matters to ICAC. Then your Honours see the question:
Was there any discussion about a relationship?
A. Yes, there was. He said that the reason that he was asking many of these questions –
and your Honours need to appreciate that this was a matter very much in issue. We called Mr Hart in reply who denied that he had any concern about any relationship and his Honour the primary judge accepted his denial and I will take your Honours to the finding in a moment. But here Ms Dillon is saying at line 25:
he said that there are questions being asked about the relationship between the board and the general manager and the general manager and a particular board member.
Then just passing over the next couple of questions and answers at line 40 and following, your Honours see the question:
Q. Did you have any understanding of the particular board member to whom he referred?
A. When I was asked the question, I had, in the back of my mind, the comments that had been made by the staff members and the little throw away line that had been given by Michelle Chittenden, and I responded that I’d heard the rumours but I didn’t have any evidence and I didn’t believe it was occurring.Q. Did Mr Hart identify a particular board member?
A. Not to my recollection.
So that is her version of the conversation with Mr Hart and plainly enough she is there telling him that she did not have any evidence in relation to the rumour and did not believe it was occurring. Then if I could just draw attention to one other passage of significance on page 213 and your Honours see at about line 45 the question:
Q. Does that exhaust your recollection . . .
A. I recall him making comments that it was a matter of concern. I recall him making a statement at some time during the meeting that he had been discussing it with the director-general –
and then “it” is defined in the next question and her answer is:
A. The issues that he had raised with me.
So there can be no doubt, in our submission, that her evidence in relation to this conversation put the issue of concern or the person asking the question as Mr Hart and no one else.
FRENCH CJ: Can I just ask…..background is Ms Dillon, as the general manager of the authority, was she an appointee, an officeholder of the government service within the Department who was, as it were, allocated to work for the board or a staff member employed by the board?
MR ALEXIS: Is your Honour referring to Ms Cush or Ms Dillon? Your Honour said Ms Dillon as the general manager ‑ ‑ ‑
FRENCH CJ: I am sorry, the general manager, I am talking ‑ ‑ ‑
MR ALEXIS: But your Honour meant Ms Cush and she was an employee of the authority.
FRENCH CJ: Thank you.
MR ALEXIS: Could I take your Honours back to page 649 of the second appeal book where her Honour sets out from the judgment of the primary judge, the primary judge’s consideration of the conversation between Ms Dillon and Mr Hart and if your Honours have – and if I may follow the paragraph numbering of the primary judge’s judgment as extracted on 649 - have paragraph 35 your Honours will see that the primary judge referred to the conversation:
Following the conversation with Mr Hart, according to Mrs Dillon, she organised a meeting with Mr Croft.
I will take your Honours to some evidence which demonstrates that the initiation of the meeting came from Mrs Dillon and certainly not from Mr Croft. His Honour then goes on to say:
He was the Chairman of the Board. Mrs Dillon’s evidence is that this meeting was held as a result of the discussion with Mr Hart and its contents were a product of that discussion.
His Honour then sets out the defamatory matter conveyed at the conversation in April with Mr Croft, and then in paragraph 36 on page 650 he says:
Mrs Dillon says she raised the matter in essence as a result of the concerns earlier expressed by Mr Hart. In other words, she says that she saw it as part of her duty to bring the matter to the attention of the Chairman of the Board, a concern which was strengthened by the discussions she had had with the staff members, in particular because of Mr Boland’s presence on the Grievance Committee.
Then your Honours see the reference to qualified privilege, and then importantly, your Honours have paragraph 37 of the primary judge’s judgment:
It is clear from the just quoted passage of evidence that Mrs Dillon alleges she conveyed the defamatory publication to Mr Croft as a result of her conversation with Mr Hart. This is probably the main point of credit in relation to Mrs Dillon.
His Honour observes.
Mr Hart, although conceding the matter was discussed in his conversation with her denied he had raised it as a matter of concern. Were the contest between the oral evidence of Mr Hart and Mrs Dillon alone I would have preferred Mrs Dillon’s evidence. Mr Hart only came to consider the matter in about November 2007 and, as conceded by him, his memory of the details of the events was vague. I also thought his manner of giving evidence was somewhat casual and I noted that from time to time he laughed about matters which he presumably thought were trivial. His version does, however, have support in Exhibit H which is a confidential memorandum he sent to the Director General . . . on 4 April 2005, following his conversation with Mrs Dillon. The matters of concern raised there do not include the alleged affair.
His Honour then describes it as “a contemporaneous note” and then finds to this effect:
I am not satisfied that Mr Hart raised the affair as a matter of concern. As a result I am not satisfied that Mrs Dillon disclosed the rumour to Mr Croft as a result of her conversation with Mr Hart. That is not to say that she did not nevertheless believe it was her duty to tell Mr Croft about the rumour, simply that she did not do so as a consequence of speaking to Hart.
Now that finding, which in our submission is an important finding, is one that went unchallenged in the Court of Appeal and so the evidence that she gave to the primary judge on purpose was found against her. The point arising of course is that on Ms Dillon evidence she advanced no other reason for speaking to Mr Croft about the affair on 8 April 2005.
I referred a moment ago to some emails that passed between Mr Croft and Ms Dillon and our learned friend seeks to squeeze a request for information out of them. I will take your Honours to them after I take your Honours to the memorandum from Mr Hart, but our submission is that those emails could not, on any view, constitute a request for information by Mr Croft.
Could I go to Mr Hart’s memorandum that your Honours will find at page 394 of the second appeal book? Could I start at 394 just to indicate that by reference to the cover sheet under which the memorandum was sent by facsimile to the Director‑General - it was sent to her on 4 April, your Honours see the facsimile imprint across the top of the page. The memorandum starts on the next page, a two‑page memorandum, and if I could just step your Honours through it as briefly as I can? Firstly, your Honours see on 395, line 10, the issues:
Activities of the Border Rivers – Gwydir Catchment Management Authority (CMA) and the General Manager, Amanda Cush.
Then in terms of background:
CMA and DIPNR staff have made allegations, to the PSA –
the Public Service Association –
and to me, concerning alleged fraudulent activities undertaken by Amanda Cush.
2.2 A Border Rivers – Gwydir CMA Board member has also made an allegation, to me, of undocumented and inappropriate CMA Board processes conducted at Board meetings.
Now, that is a clear reference to Ms Dillon, it is a clear reference to the conversation, and the content of that complaint is set out on the adjacent page under paragraph 4.3 “Board Processes”. I will come back to that. Your Honours see “Current Action” set out in the next paragraph, and there Mr Hart says that he:
was originally reluctant to interfere, but due to the seriousness of the allegations, have undertaken a confidential preliminary local investigation of the allegations . . . utilising her financial knowledge and contacts, has compiled the documentation.
Then the content of those documents is set out in 3.3. Then if I can come to the “Comments” section in paragraph 4, and one sees that in terms of travel allowance there was an issue about Ms Cush claiming a travel allowance amounting to over $500 “on two occasions when all expenses,” so it said, including hotel and the like were paid for by the Authority. Then in 4.2 there is a reference to the Tweed Heads forum. It is described as:
a facilitated strategic planning forum at Tweed Heads –
and the expenses relating to that forum are set out –
Salary and travel costs for staff and Board members and travel expenditure incurred by the facilitator are not included, although the CMA covered all of these costs.
There is further commentary on that at the top of the next page. Then in relation to board processes, Mr Hart records there that the:
Board member has been in contact with me and advised that the Board has agreed not to employ any DIPNR staff in the future. The Board member further stated that the Board lacks proper corporate governance procedures, engages in “character assassinations” of current CMA (former DIPNR) staff and does not document and record those comments.
Secondly, he records that:
The Board member will bring the governance matters to the attention of the Minister and will cooperate with any investigation.
The reference to Ms Dillon brining governance matters to the attention of the Minister does not seem to have been referred to in the conversation that Ms Dillon gave to the primary judge when she was relaying what was said between her and Mr Hart. Then there is a reference in the next paragraph to the appointment of Lyn Cullinane that your Honours recall reference to in the transcript in relation to the Aboriginal identified position, and then in relation to other anomalies there is reference to Ms Cush’s home phone and broadband rental charges, use of private vehicle and matters of that type. There is a reference to staff having lodged some grievances, “Former staff member Rodney O’Brien” has resigned and then your Honours see that recommendation that:
these matters be either referred to Internal Audit or Human Resources for further independent investigation, as a supplement to any current investigation.
Your Honours now appreciate of course why the primary judge expressed the view that his Honour did, that Mr Hart’s denial that he had raised the alleged affair as a concern is supported by his contemporaneous memorandum.
The other matter that is of some importance when scrutinising the circumstances, before I come to these emails, is Ms Dillon’s knowledge at the time that she spoke to Mr Croft about departmental investigations that were current at that point in time. One gets the flavour of it from Mr Hart’s memorandum, but the question is what Ms Dillon understood about that, and could I briefly take your Honours to her very brief evidence on this issue at page 251 of the transcript in the first appeal book? From about line 25 your Honours will see that it was put to her that:
You came to learn, didn’t you, that one of the complaints that was being made against Ms Cush related to the selection process and some misconduct concerning the Aboriginal Identified Position?
A. I [learnt] of that, I think, in about the end of March April.Q. By then you knew, didn’t you, that the department had appointed an independent investigator to investigate the complaints being made against Ms Cush?
A. Yes.Q. By then you knew, didn’t you, that by that stage, Ms Cush had been written to by the department about the investigation that was about to commence?
A. Yes.Q. She was written to about each of the allegations and she was asked to respond?
A. I think that’s correct.
So that is the context of what was occurring before the communication in the café with Mr Croft. There is some other important communications before I come to that conversation and can I come to the emails, and your Honours will find those in the second appeal book at page 389, and if we could start on 389 at the point between lines 30 and 40, your Honours see “Original Message” and we have the email from Mr Croft to the then board members of the CMA. Ms Dillon is the first of the board members referred to. It is copied, just above line 40, to Ms Cush, transmitted on 31 March 2005 at 4.07. Subject matter “Out of Session Business/ Update” and your Honour will see that Mr Croft says to all:
Please find attached a Business Paper for your early response.
The business paper is on page 391, and if I could go to that briefly please, your Honours will see that the issue is a statement of support for the general manager. There is reference in the background to a number of CMAs being tested on staff‑related matters in the industrial relations area and then about three paragraphs down:
In order to manage the risk to our Board and management Amanda has requested that we provide a written statement of support for the role and responsibilities attached to the GM position.
Other CMA Boards have provided similar support to their GM and as this matter is both important and urgent it necessarily requires decision out of session -
that is to say out of the course of an ordinary board meeting. Your Honours see the terms of the recommendation. If I can go back to the email, your Honours will see the response from Ms Dillon at about line 30 on page 389:
What is the urgency of having an out of session business paper in relation to this issue?
And, then, Mr Croft responds at the top of page 389 – 1 April 2005, 7:51 – “Out of Session Business/Update” -
Hi Meryl
Tried to phone
The urgency is that Amanda may have to respond to an accusation prior to the next meeting and needs our support to be prepared for that eventuality -
That communication about Ms Cush having to respond to an accusation was conveyed to Ms Dillon. There is no evidence that that was conveyed to each board member and, to that extent, I need to acknowledge an error in our written submissions that would seem to bring all these points together. But it is that communication that on the evidence was conveyed only to Ms Dillon.
GUMMOW J: Whereabouts in your submissions?
MR ALEXIS: Our learned friend points it out but it is in our written submissions in paragraph 14. It is the reference there to the chair circulating an email to all directors seeking urgent support for Ms Cush as general manager. That is clearly correct in our submission, but it is the next part “as she” and that reason was conveyed to Ms Dillon on the evidence, not conveyed to the other board members.
GUMMOW J: So how do we alter what you have written?
MR ALEXIS: I am sorry.
GUMMOW J: We need to know how you are altering your written submissions.
MR ALEXIS: Yes, your Honour.
GUMMOW J: What is the new text?
MR ALEXIS: Your Honours can put a full stop after the word “General Manager” and delete the rest of that sentence.
GUMMOW J: Thank you.
FRENCH CJ: Just returning for a moment to the question I put to you earlier, I notice that section 6(4) of the Catchment Management Authorities Act says that an authority cannot “employ any staff” but there is a note that:
Staff may be employed under Chapter 1A of the Public Sector Employment and Management Act2002 –
I think, and the general manager is defined by reference to that.
MR ALEXIS: Yes, your Honour. Yes. Now, in relation to these emails, could I ask your Honours to go to her evidence at page 257 in appeal book 1? At the bottom of page 256, your Honours will see that the email that I have been referring to was the subject of questions and then at the top of 257 your Honours see the suggestion that she received the email from Mr Croft together with his out of session business paper before a conversation with Mr Hart:
I believe, when I put the timings together and the period at which the conversations took place, they’re in about the same, time but I couldn’t say that I received this before I spoke to Mr Hart or after I spoke to Mr Hart. I don’t really recall.
Then what follows is her evidence concerning what she did as a result of it and could I ask your Honours to come to page 258 of the book where at line 30 Ms Dillon was shown an email from a Dr Crouch who was one of the board members and at line 30 your Honours see that in the question reference is made to Dr Crouch being:
quick off the mark to respond to Mr Croft’s request. You were one of the many board member recipients of that email. Do you see that?
A. Yes, I see that.
Your Honours see the date and time of response “31 March 2005 at 8.58”.
Q. Before you sent your email to Mr Croft raising the question about the urgency, you’d already received the email from Dr Crouch expressing absolute support for Ms Cush?
She raises then a question about whether she opened it or not and then at line 45:
Q. In any event, Mrs Dillon, by the time you received the email from Mr Croft explaining the urgency of the situation, you either knew at the time or around that time that Dr Crouch had written to Mr Croft saying that Ms Cush was doing a competent job and that she, Ms Cush, had his complete support.
A. That’s right.
Q. You’d also read that he had said to Mr Croft, “If you require a mover, seconder, and a strong yes vote, you will get them from me.”
A. Yes.
Then over the page, this was put to her:
Q. You didn’t send any communication to Mr Croft expressing support for the general manager at this time, did you?
A. No -
and then she refers to the reference in the email to the likelihood of a conversation over the telephone. Then it was put:
Q. You know there was an in-session meeting of the board on 15 April 2005 in Goondiwindi, don’t you?
She refers to the minutes. She tells us there that she was actually in Darwin on CMA business, did not attend the meeting and then it is put to her that at no time between the receipt of the emails and the board meeting did she express any support at all for the general manager. Ultimately, says at line 32:
A. I don’t recall ‑ ‑ ‑
GUMMOW J: What is the point of taking us page after page through this material, Mr Alexis?
MR ALEXIS: The point, your Honour, is to demonstrate that there was no apparent purpose of Ms Dillon conveying the defamatory matter to Mr Croft that would be in discharge of a duty or in satisfaction of an interest. Now, Mr Croft in his evidence before the jury, if I could take your Honours very briefly to that, at page 446, line 15 there is reference to the board passing a resolution of confidence in April 2005. That was when the complaints against Ms Cush first surfaced, that is correct. Then just after line 40 your Honours will see:
Q. Because the board by a majority had endorsed Ms Cush’s role as the general manager back in April 2005, had it not?
A. Yes.
Then a very quick reference over the page, 447 at line 10:
Q. Ms Dillon was the only person on the board who didn’t join in the endorsement of the general manager back in April?
A. Yes.
The submission I will be coming to is that, when looked at objectively, the only purpose that was apparent as to explain why Ms Dillon conveyed the defamatory matter to Mr Croft was to render untenable board support for Ms Cush that was being sought at the time and to also render Mr Boland’s position in relation to the provision of that support and the passing of such a resolution of support similarly untenable.
Now, could I come to the conversation with Mr Croft? That is set out in part in Justice Bergin’s judgment at page 646 but, in our submission, it does overlook some important context so could I ask your Honours to go to book 1 at page 216? Firstly, could we note on 216 that Ms Dillon says in‑chief at about line 23 that she contacted Mr Croft to initiate the meeting.
I contacted him by telephone.
She said in the next answer:
I need to speak to you about some issues of concern to the CMA board. Would it be possible for us to have a face‑to‑face meeting on this matter?
That is what led then to the meeting and over on 217, there is reference to the café at about line 27, and then the content of the conversation is recounted from about line 38:
A. I said to James that I had been contacted by a senior member of the department and they are raising some concerns about the CMA, some serious concerns about the CMA. I said to him they were asking questions about the Aboriginal position and whether or not the board had intervened in the appointment. I raised with him the fact that they were asking questions about the relationship between the board and the general manager and a particular board member and the general manager.
Q. Did you identify anyone by name to the best of your recollection?
A. To the best of my recollection, I didn’t.Q. Did you use the word “affair” . . .
A. Not at – I don’t have a recollection of having used that word.
Then over the page, she maintains at 218, line 10 her recollection that:
that was the conversation that you had concerning the relationship between Mr Boland and Ms Cush?
A.Yes.
Then just passing over the reference to the jury, because I will come back to that, at line 35 and following, she says that she accepts the jury’s finding. No great revelation in that we would say. But then importantly there is the next question and answer:
Q. Why did you make the comments you made to Mr Croft about the relationship that you considered was an affair?
A. There are several reasons. One was the fact that he was the chairman of the board. This matter was of concern in relation to such issues of conflicts of interest, or perceived conflicts of interest.
Then she elaborates on that over the page, 219, from about lines 22 and following:
Q. Were there any other reasons prompting you to make this reference to the relationship to Mr Croft . . .
A. Accusations of this type can be very damaging to a board and they can be damaging to individuals.
So your Honours see there in clear terms, we would say, her apparent reason for conveying what she did to Mr Croft. That is based, of course, on her version of the conversation which she confirmed was her recollection of the conversation, a conversation the jury rejected.
FRENCH CJ: What error on the part of the Court of Appeal is this directed to?
MR ALEXIS: It is directed to the error concerning the occasion that was defined, namely, to convey the existence of the rumour, not being an occasion that was engaged by conveying the fact. What this demonstrates is that on her evidence her intention, or her purpose, was to convey the existence of the rumour, or as she puts it in the transcript I have just taken the Court to, the existence of the accusation, and that is not what was published, what was published was the fact. Now, could I ask your Honours to go ever so briefly to her evidence before the jury ‑ ‑ ‑
BELL J: All of this goes to the question of the identification of the occasion for the purposes of qualified privilege.
MR ALEXIS: Yes, but importantly within that, your Honour, discerning the purpose of the publication and her evidence was, as your Honours now know, that she was conveying in effect Mr Hart’s message of questions being asked. The primary judge found that against her, so that purpose was taken away.
BELL J: I am just seeking to understand the error in terms of the analysis of qualified privilege. You say that this goes to the identification of whether or not the comments were made on an occasion that attracted privilege?
MR ALEXIS: Yes, yes.
BELL J: All right.
MR ALEXIS: If the duty or interest that was said to be discharged or satisfied is the bringing of the existence of the rumour to the chairman then that duty and that interest was not engaged by Ms Dillon because that is not what she did; she did not convey the existence of the rumour, she conveyed the fact of the affair and that it was common knowledge.
HAYNE J: Well, that is a point you have made more than once.
MR ALEXIS: It is.
HAYNE J: What exactly is the purpose that you have in taking us line by line through the evidence? Is it simply to buttress that point?
MR ALEXIS: To demonstrate that the purpose that Ms Dillon gave evidence of is not a purpose that satisfied the reciprocal duty and interest to convey the existence of the rumour. She says that she conveyed it to Mr Croft to bring his attention to the existence of the rumour, but she did not convey to him the existence of the rumour. She said it was common knowledge that they were having an affair and so there is a complete disconnection, in our submission, between a duty and an interest that may have been available to her and an occasion available to her of qualified privilege that was not used for the purpose of the publication.
FRENCH CJ: Well your focus must be on 52, 53 and 54 of the Court of Appeal judgment at 658 and 659, must it not?
MR ALEXIS: Yes.
FRENCH CJ: It is really against that background that any of this has any significant, and I just wonder how much more it ‑ ‑ ‑
MR ALEXIS: Well, your Honours, I do not have very much more at all, and what I wish to do is to take your Honour to the evidence that was given before the jury on this very subject matter and then move to put our propositions. So could I ask your Honours to go, please, to page 503 of the transcript in the second appeal book. First of all, could I just ask your Honours to note her evidence at 503, lines 12 to 25. The second matter complained of was put to her:
Q. Did you ever say [that] . . .
A. No.Q. Did you ever say anything like that to Mr Croft about Les and Amanda having an affair or a relationship?
A. No.
Then your Honours have her version of the conversation with Mr Croft as was given to the jury on page 504 of the transcript from lines 30 to 50. She was asked at line 45 whether that was the totality of the conversation, and your Honours see her response, and then at line 55 she says that the conversation went for about half an hour, which does rather indicate, in our submission, that the fundamental purpose was to discuss the matters of complaint although, for reasons I will come to, she did not disclose that she had made a complaint, but the subject matter of what is in Mr Hart’s memorandum.
Now, your Honours might think that it is an odd proposition for Ms Dillon to assert a reciprocal duty or interest for a publication she denied making and that is the proposition that arises out of her denial that your Honours have been taken to. What follows in our submission is that whatever duty Ms Dillon felt that she acted under, or on when she spoke to Mr Croft, must have been founded on the existence of the rumour and it was not a duty that was engaged when she published the defamatory imputations to him and that is made clear by the evidence that she gave at 504, lines 45 to 50, and it is also made clear by the evidence she gave at page 513 of the book at line 25, where she was directly asked about the purpose of speaking to the chairman, and her answer was in these terms:
They were not my concerns as such, they were matters of concern that had been raised with me -
to similar effect at 514 at lines 25 to 35. In her later evidence, and I am coming rapidly to the end of the transcript references, may I say to your Honours, but in her later evidence before Judge Elkaim at 294 of appeal book 1, particularly at lines 35 to 45 where in relation to the conversation, she says:
A. No, but it goes to more than that. It’s about the accusations of an affair.
Then over on page 295, the question of duty is the subject of examination and at lines 45 to 55 she says, in particular:
I believed that the chairperson had a right to know what was being said about the board and about individual board members.
Over page it is to similar effect. The first answer to the question at the top of 296:
A. I believe that he had the right to know whatever was being said . . .
A. It can be very corrosive to a board for those kinds of accusations to be made and for that sort of information to be spread about it.
Q. If that’s so, why then didn’t you tell Mr Croft, perhaps in the same breath, “James, I have no evidence of this and I don’t believe that it’s true”?
A. I do not know.
In our submission, critical to defining the existence of the privileged occasion is that it be defined by reference to the imputations. Could I draw attention to two particular passages in Bashford that I wish to take the Court to - Bashford v Information Australia Newsletters Pty Ltd 218 CLR 366. Firstly, could I ask your Honours to go to what Justice Gummow said at paragraph 135 on page 415 and passing over his Honour’s reference to what the primary judge and the Court of Appeal did, which your Honour expressed is an approach that requires caution, your Honour then said:
The defence of qualified privilege is a plea in confession and, as such, is predicated upon the existence of a defamatory imputation to which the privilege attaches. To speak of qualified privilege attaching to a non-defamatory statement is to ignore this fundamental characteristic. It follows that questions of relevance, in the sense in which that term was used by the judges below, will ordinarily only arise where two or more defamatory imputations are published on a single privileged occasion. In such circumstances, it will be necessary to determine whether each imputation falls within the umbrella of the applicable privilege or whether one of the imputations is not relevant and, therefore, not covered by the defence. In the present case, only one defamatory imputation has been found to have been conveyed. It is therefore necessary to consider whether that imputation was made on an occasion giving rise to a defence of qualified privilege arising out of a reciprocal duty or interest.
Could I note without reading the reference in paragraph 137 to Starkie on Slander and particularly the reference to communications made in discharge of the duty and the reference also in that respect to Baron Parke in Toogood v Spyring. In our submission, what needs to be considered is whether that imputation was made on an occasion arising out of a reciprocal duty or interest whether the defamatory matter that was uttered by Ms Dillon was made as a communication to discharge a duty or whether it was uttered to satisfy a relevant interest. It is to that issue that, in our submission, the Court of Appeal fell into error because they did not define the occasion of privilege by reference to the imputations. It was defined by reference to the rumour.
KIEFEL J: Are you saying that no occasion arose?
MR ALEXIS: In relation to the defamatory imputations? No.
BELL J: Can I just take you back to a passage in the evidence that you took us to, at transcript 218 in the appeal book. Ms Dillon accepted the jury’s verdict, that is, she acknowledged that she accepted that the factual finding that what had been said were words to the effect “It’s common knowledge amongst people in the CMA that Les and Amanda are having an affair”. Now, with reference to that acceptance at line 38 she offers as her reasons for making the comments that she had made to Mr Croft, the fact that he was the chairman of the board and that the matter was one of concern.
I just want to understand your argument. It seems to me there one has Ms Dillon saying, “Well, I accept that this is the jury’s finding that these words were said”. She is then giving an answer as to her reason for saying those words. This is in a context where, I think, elsewhere she says she does not remember saying those words. But is your submission that it is not open to her, as it were, to say, on the one hand, “I do not believe I said those words. Accepting that it has been found that I did say those words, this is the reason for my saying words to Mr Croft which necessarily accepted the words that were pleaded”.
MR ALEXIS: Yes. Her evidence on purpose was directed to her version or her recollection of what was conveyed to Mr Croft.
BELL J: At line 38 on page 218 it seems she is saying in answer to a question that is expressed in this way:
Q. Why did you make the comments you made to Mr Croft about the relationship that you considered was an affair?
A. There are several reasons. One was the fact that he was the chairman of the board.
MR ALEXIS: Yes, but, your Honour, in our submission, that question with the language employed in it makes it clear that she is being referred to the purpose of what she conveyed to Mr Croft as she recalled it and, your Honour, could I draw particular attention to the reference to “the relationship that you can considered was an affair” and her answer related to her version which did not disclose the existence of an affair, or did it disclose the parties that were alleged to be part of the affair because her version of course was she referred to the general manager, and that clearly enough was a reference to Ms Cush, but the identity of the board member was at large, and there were a number of board members who, theoretically at least, could have fallen into the category.
So her version was that there was no identification of Mr Boland and no identification of the relationship being an affair, and so when the question at 218, line 36 was put, it was put to explain her purpose of saying her comments in relation to “the relationship that you considered was an affair”, and that is the difficultly, in our respectful submission, with Ms Dillon trying to construct a duty based on the existence of an accusation or a rumour because that is the very thing that she did not convey according to the jury’s findings.
HAYNE J: Does that argument base itself on an either/or analysis? If it does, how does it take account of the evidence given at 217 to 218 where the witness says that, “To my recollection I did not say these words, I do not recall saying these words”, et cetera, leaving open the possibility that they were said? She accepts the finding of the jury that they were said.
MR ALEXIS: Your Honours, that is why I took your Honours to Ms Dillon’s 7A evidence.
HAYNE J: I understand that you can go through and you can parse the evidence as closely as you like, Mr Alexis, but is it not the overall weight of her evidence that “My recollection of what I said was X, I do not recall saying why, the jury has found I said why. That is not my recollection”. From that you create a polar universe where it is either one or the other. How does that sit with witnesses long after the event attempting to give their best recollection of a conversation that occurred?
MR ALEXIS: Yes, well, your Honour, I need to respond to your Honour’s question by putting this submission based on her 7A evidence at 503 which denied the matter complained of, or anything like it. She then went on to say at page 520 of the transcript, lines 25 and 30, that her recollection of the conversation were her exact words, and perhaps I should, in light of your Honour’s question, go to that. At 520, lines 15 and following, it was specifically put to her:
You referred to Mr Boland by name, didn’t you?
A. No.Q. Are you sure about that?
A. Yes.
This is before the jury where publication was very much in issue –
Q. You referred to a relationship between a board member and the general manager, didn’t you?
A. Yes.Q. What sort of relationship did you refer to?
A. I repeat, they were my exact words, that I mentioned that the Department had expressed concerns in relation to those matters and that the matter that you’re now talking about is that they had expressed concerns about the relationship between the board and the general manager and a particular board member and the general manager.
Now, in our submission, in light of that evidence which was unequivocal it does raise a question about the evidence that she gave on the subsequent occasion before the judge determining her defence about lack of recollection.
HAYNE J: Well, what is she meant to say, no, I do not accept the jury finding? It is a bit hard, is it not?
MR ALEXIS: Your Honour, really what one gets out of it is this, that her purpose according to her evidence was to convey Mr Hart’s message, and her purpose according to her evidence was that she was seeking to discharge a duty that related to the existence of the rumour, and I really do not wish to repeat myself, but we then look at what she in fact published and she did not publish anything about the existence of the rumour. She published the fact and that it was common knowledge and both of those matters she had seen no evidence of, as she accepted, and in respect of both of those matters she did not believe it was true.
What that leads to, in our submission, is this, that if the defamatory imputations were published to Mr Croft on a privileged occasion there would have to be a reciprocity of duty and interest to publish the fact of the appellants having an affair and that it was common knowledge when, as she well knew, it was only a rumour. It is our submission that there could be no duty on the respondent to publish the existence of a rumour to the chairman as a fact, there could be no interest to be satisfied by the chairman receiving the publication of a rumour as a fact. Publishing the rumour as a fact could not be for the common convenience and welfare of society. That must be so, in our submission, simply because, as I have said, the publisher did not believe the rumour was true and he did not know that it was common knowledge at the time.
The other important aspect of the particularly relevant circumstances is that the defamatory matter was volunteered, and that arises from the important finding the primary judge made concerning Mr Hart and the concern expressed by Ms Dillon to Mr Croft, not being a concern that he held or conveyed to Ms Dillon during that conversation.
Now, on the subject of voluntariness, I need to note Justice McHugh’s dissenting judgment in Bashford at paragraphs 73 to 75 that in light of a recent decision of the New South Wales Court of Appeal in Holmes a Court v Papaconstuntinos [2011] NSWCA 59, a decision of the court delivered on 21 March 2011 by a Bench of five that was convened because there was an issue concerning the correctness of an earlier decision of that court, in light of that decision, in our submission, the voluntary character of the defamatory statement here is a factor to be considered in scrutinising the circumstances. We do not submit that it is decisive.
GUMMOW J: Where do we find the relevant statement of principle by the Court of Appeal?
MR ALEXIS: Justice Allsop in paragraph 1 agrees with the reasons of Justice McColl. In his Honour’s short supplementary reasons at the end of paragraph 5, his Honour says in the last sentence:
The question whether a social duty arises in circumstances where no pre‑existing duty or interest exists will be analysed by reference to all the circumstances. To such an analysis the voluntariness of the statement may be relevant, as it may be in the assessment as to whether the statement was fairly warranted by the occasion -
Justice Beazley in paragraph 11 agreed with Justice McColl. Justice Giles in paragraph 12 agreed with the reasons given by Justice McColl and said in paragraph 12:
To the extent to which my agreement with Tobias JA in Goyan v Motyka [2008] NSWCA 28, in which his Honour’s recording of the law (as agreed by the parties) which included paras [73] and [77] of the reasons of McHugh J in Bashford . . . carried acceptance of McHugh J’s views concerning the decisiveness of voluntariness and “pressing need”, I do not adhere to it. Voluntariness can nonetheless be a relevant matter -
MR ALEXIS: The only answer I can give to your Honour is no, and the reason for it is that the particular articulation of applicable duties, as we see in our learned friend’s submissions, point up the significance of those matters. Of course, one has to have regard to the significance of all of those matters, and importantly we would say when one is speaking of duty and content of duty and satisfying an interest and if one is looking at her conduct and whether she satisfied that for the purpose of there being an occasion to protect the impugned publication, one has to also ask whether she complied with the rigours of those provisions and, in our submission, she did not.
FRENCH CJ: Well, if it were a legitimate point to take, it would be the sort of point one would have expected to have seen in a written reply.
MR ALEXIS: Yes, your Honour, I have to accept that. Those are the matters that I wish to raise in reply.
FRENCH CJ: Yes, all right, thank you. The Court will reserve its decision. The Court adjourns until 9.30 tomorrow in Canberra and 9.30 tomorrow in Sydney.
AT 2.39 PM THE MATTER WAS ADJOURNED
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