FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
Matter No S309/2010
AMANDA CUSH APPELLANT
AND
MERYL LURLINE DILLON RESPONDENT
Matter No S310/2010
LESLIE FRANCIS BOLAND APPELLANT
AND
MERYL LURLINE DILLON RESPONDENT
Cush v Dillon Boland v Dillon [2011] HCA 30 10 August 2011 S309/2010 & S310/2010
ORDER
In each matter, appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation
T A Alexis SC with P M Sibtain for the appellant in both matters (instructed by Cole & Butler Solicitors)
G O'L Reynolds SC with G R Rubagotti for the respondent in both matters (instructed by Banki Haddock Fiora)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Cush v Dillon Boland v Dillon
Defamation – Defence of qualified privilege – Where occasion of qualified privilege existed to communicate existence of rumour – Where defendant published rumour as "common knowledge" – Whether matter published on occasion attracting defence of qualified privilege – Whether distinction between publication of rumour and publication of fact of rumour.
Defamation – Defence of qualified privilege – Rebuttal by express malice – Where defendant did not believe truth of publication – Whether lack of belief in truth of publication sufficient to establish malice.
Words and phrases – "express malice", "qualified privilege".
FRENCH CJ, CRENNAN AND KIEFEL JJ. In two separate actions brought in the District Court of New South Wales under the Defamation Act 1974 (NSW) and heard together, a jury found that Mrs Meryl Dillon, the respondent in each of these appeals, had defamed the appellants, Ms Amanda Cush and Mr Leslie Boland. The jury found that, on 8 April 2005, she had said to Mr James Croft, "It is common knowledge among people in the CMA that Les and Amanda are having an affair." In the proceedings below the respondent did not suggest that the content of this statement was true. It was accepted by her that it was not. And she did not believe the statement to be true when she made it to Mr Croft.
The "CMA" is the Border Rivers-Gwydir Catchment Management Authority. It is a statutory body, representing the Crown, established under the Catchment Management Authorities Act 2003 (NSW). It is subject to the control of the relevant Minister. Its general function is to carry out or fund "catchment activities". The affairs of the CMA are controlled by the Board of the CMA, the members of which are appointed by the Minister. The office of member is a part-time office and a member is entitled to be paid such remuneration, including travel allowances, as the Minister may from time to time determine. At the time of the defamatory statement Mr Croft was the Chairperson of the Board of the CMA and Mrs Dillon and Mr Boland were Board members. Ms Cush was the General Manager. The CMA had offices…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Cush v Dillon [2011] HCA 30
Case
[2011] HCA 30
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a defamation claim brought by the appellant, Cush, against the respondent, Dillon. The dispute arose from the respondent's publication of information concerning the appellant, which the appellant alleged was defamatory. The respondent sought to rely on the defence of qualified privilege.
The central legal issues before the High Court were whether the occasion of publication attracted the defence of qualified privilege, and if so, whether the defence was defeated by express malice. Specifically, the court had to determine whether the respondent's publication of a rumour as "common knowledge" fell within the scope of qualified privilege, and whether the respondent's lack of belief in the truth of the published matter constituted express malice sufficient to rebut the defence.
The High Court reasoned that while an occasion of qualified privilege may exist to communicate the existence of a rumour, the defence does not extend to publishing the rumour as if it were established fact. The distinction between publishing a rumour and publishing the fact that a rumour exists was critical. Furthermore, the court held that a defendant's lack of belief in the truth of a publication is a significant indicator of express malice, capable of rebutting a claim of qualified privilege.
In each of the consolidated matters before it, the High Court dismissed the appeal, upholding the decisions of the lower courts and ordering the appellant to pay the costs of the respondent.
Orders
Orders of the court
In each matter, appeal dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, CRENNAN AND KIEFEL JJ
GUMMOW, HAYNE AND BELL JJ
(dissent)
HEYDON J
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, CRENNAN AND KIEFEL JJ,
HEYDON J