Cush v Dillon and Boland v Dillon

CITATION:	Cush v Dillon and Boland v Dillon [2009] NSWDC 21
HEARING DATE(S):	9/2/09, 10/2/09, 11/2/09, 12/2/09, 13/2/09
JUDGMENT DATE:	25 February 2009
JURISDICTION:	Civil
JUDGMENT OF:	Elkaim SC DCJ
DECISION:	See paragraph 88
CATCHWORDS:	Defamation
LEGISLATION CITED:	Defamation Act 1974
CASES CITED:	Aktas v Westpac Banking Corporation Limited [2009] NSWCA 9 Roberts v Bass (2002) 194 ALR 161 Jones v Sutton [2004] NSWCA 439 Moumoutzakis v Carpino [2008] NSWDC 168 Hennessy v Lynch (No 3) [2007] NSWDC 268
PARTIES:	Amanda Cush (Plaintiff) Leslie Francis Boland (Plaintiff) Meryl Lurline Dillon (Defendant)
FILE NUMBER(S):	4735/06; 4917/06
COUNSEL:	T Alexis SC and P Sibtain (Plaintiffs) M Lynch (Defendant)
SOLICITORS:	Cole & Butler (Plaintiffs) Banki Haddock Fiora (Defendant)

JUDGMENT

Reasons for Judgment

1. Mr Leslie Boland and Ms Amanda Cush are plaintiffs in separate actions in which they have each sued Ms Meryl Dillon. Their actions were brought pursuant to the Defamation Act 1974 (“the Act”). The two cases have been heard together.

2. Under the above Act the litigation has occurred in a two stage process. First is what is commonly known as a Section 7A Hearing which took place before a Judge and Jury in November 2007. Following the success, from the plaintiff’s point of view, of that hearing the matters moved on to the hearing before me. My task has been to consider the defences raised by Mrs Dillon and, if appropriate, to assess the damages payable to each plaintiff.

3. The Section 7A Hearing considered two statements alleged to have been made by the defendant. The jury was only satisfied that one of the statements had been made. In respect of that statement the jury found that the statement had been published to at least one person and that certain imputations flowed from the statement. As between the plaintiffs these imputations were substantially the same but, of course, varied with the particular circumstance of each plaintiff. I have annexed to this judgment a copy of the transcript relating to the alleged statements, the Jury’s findings, and the imputations which were established.

4. It is common ground that the statement in respect of which damages are claimed was made to one person only. It is equally clear that the subject of this statement had been published by and to other persons. The plaintiffs in this case face the difficult task of identifying the damages flowing from the publication sued upon against the background of the publication of the subject matter outside of this one instance. In addition, the person to whom the sued upon publication was made, a Mr James Croft, did not, other than to the plaintiffs, repeat the publication.

5. The plaintiffs, in addition to their claim for general damages, have sought aggravated damages. I was at pains to enquire of senior counsel for the plaintiffs whether this was a separate head of damage or whether damages should be larger because of various aggravating factors. I was told the latter was the case (T332.37) and I was given…