Dillon v Cush; Dillon v Boland

Case [2010] NSWCA 165

New South Wales


Court of Appeal


CITATION: Dillon v Cush; Dillon v Boland [2010] NSWCA 165
HEARING DATE(S): 7 May 2010
 
JUDGMENT DATE: 
15 July 2010
JUDGMENT OF: Allsop ACJ at 1; Tobias JA at 5; Bergin CJ in Eq at 6
DECISION: In each appeal 40173 of 2009 and 40174 of 2009:
1. The appeal is allowed.
2. The orders of the District Court made on 25 February 2009 and entered on 12 March 2009 be set aside.
3. There be a new trial on the defence of qualified privilege at common law.
4. The Respondent is to the pay the Appellant’s costs of the appeal, including the application for leave to appeal and is to have a certificate under the Suitors' Fund Act 1951 if so qualified.
CATCHWORDS: DEFAMATION - QUALIFIED PRIVILEGE - process to determine whether occasion of qualified privilege at common law - onus of proof in relation to malice - whether lack of honest belief in truth of matter complained of on its own establishes malice to defeat qualified privilege at common law
LEGISLATION CITED: Catchment Management Authorities Act 2003
Defamation Act 1974
Evidence Act 1995
CATEGORY: Principal judgment
CASES CITED: Aktas v Westpac Banking Corporation Limited [2009] NSWCA 9
Bennette v Cohen [2009] NSWCA 60
Blair v Curran (1939) 62 CLR 464
Clark v Molyneux (1877) 3 QBD 237
Cush v Dillon and Boland v Dillon [2009] NSWDC 21
Gross v Weston (2007) 69 NSWLR 279
Hadid v Australis Media Ltd unreported, NSWSC, Sperling J, 1 November 1996
Roberts v Bass (2002) 212 CLR 1
Toogood v Spyring (1834) 1 Cr M & R 181
PARTIES: Meryl Lurline Dillon (Appellant)
Amanda Cush (Respondent)
Leslie Francis Boland (Respondent)
FILE NUMBER(S): CA 2009/40173; 2009/40174
COUNSEL: R G McHugh SC / M G Lynch (Appellant)
T A Alexis SC / P M Sibtain (Respondents)
SOLICITORS: Banki Haddock Fiora (Appellant)
Cole & Butler (Respondents)
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 4735/06; 4917/06
LOWER COURT JUDICIAL OFFICER: Elkaim SC DCJ
LOWER COURT DATE OF DECISION: 25 February 2009
LOWER COURT MEDIUM NEUTRAL CITATION: Cush v Dillon and Boland v Dillon [2009] NSWDC 21


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                          CA 40173 OF 2009
                          CA 40174 OF 2009

                          ALLSOP ACJ
                          TOBIAS JA
                          BERGIN CJ in Eq

                          15 JULY 2010

Meryl Lurline Dillon v Amanda Cush


Meryl Lurline Dillon v Leslie Francis Boland

Judgment

1 ALLSOP ACJ: I have read the reasons of Bergin CJ in Eq. I agree with them and with the orders proposed by her Honour.

2 The disposition of the appeal does not require consideration of the question of the voluntary character or not of a communication in the ascertainment of whether an occasion is privileged.

3 It is most regrettable that the matter must be remitted. It is, however, for the reasons the Chief Judge makes clear, necessary. It is to be hoped that the parties can see the possibility of compromise in an attempt to avoid significant further costs over such small verdicts. Compromise would…

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Dillon v Cush; Dillon v Boland [2010] NSWCA 165
Case
[2010] NSWCA 165
Decision Date

CaseChat Overview and Summary

In *Dillon v Cush* and *Dillon v Boland*, the Court of Appeal of New South Wales considered appeals concerning the defence of qualified privilege in defamation proceedings. The central dispute revolved around whether a lack of honest belief in the truth of defamatory statements, on its own, was sufficient to establish malice and defeat a claim of qualified privilege at common law.

The court was required to determine the correct test for establishing malice in the context of qualified privilege. Specifically, it had to consider the onus of proof in relation to malice and whether a defendant's subjective belief in the truth of the defamatory material was the sole determinant of whether they acted with malice.

The court reasoned that the common law defence of qualified privilege requires a reciprocal duty and interest between the maker and recipient of the communication. Malice, in this context, is not established merely by a lack of honest belief in the truth of the statement. Instead, it requires proof that the defendant was actuated by some improper motive, such as spite or a reckless disregard for the truth, beyond simply holding an erroneous belief. The court found that the trial judge had misapplied the principles relating to malice, leading to an erroneous finding on the defence of qualified privilege.

Consequently, the Court of Appeal allowed the appeals, set aside the orders of the District Court, and ordered a new trial on the defence of qualified privilege at common law. The respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

In each appeal 40173 of 2009 and 40174 of 2009:

1. The appeal is allowed.

2. The orders of the District Court made on 25 February 2009 and entered on 12 March 2009 be set aside.

3. There be a new trial on the defence of qualified privilege at common law.

4. The Respondent is to the pay the Appellant’s costs of the appeal, including the application for leave to appeal and is to have a certificate under the Suitors' Fund Act 1951 if so qualified.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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