Dillon v Cush; Dillon v Boland

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.