Cush v Dillon and Boland v Dillon [2009] NSWDC 21

Cush v Dillon and Boland v Dillon [2009] NSWDC 21

The defendant's defence of qualified privilege failed because malice was established: she made the defamatory statement knowing it was untrue and had already spread the rumour to others. The statutory defence under section 22 also failed as her conduct was not reasonable, and the s13 defence failed as there was a real possibility of harm. Although the damage attributable to the particular publication was minimal relative to the widespread rumour, the plaintiffs were each entitled to $5,000 in damages as specific hurt arising from discovering the publication.

Jurisdiction
Australia
Judgment Date
25 February 2009
Procedural Posture
Civil / Judgment After Trial on Defences and Assessment of Damages
Outcome
Verdict for each plaintiff in the sum of $5,000.
Legal Topics
['qualified Privilege' 'malice' 'damages' 'statutory Defences to Defamation']
['defamation'] ['qualified Privilege' 'malice' 'damages' 'statutory Defences to Defamation']

Case Brief

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Procedural Posture

Civil / Judgment After Trial on Defences and Assessment of Damages

Legal Issues

  1. 1 ["Whether the defendant's publication was protected by qualified privilege at common law or under statute" 'Whether malice defeated any privilege' 'Assessment and apportionment of damages given widespread prior publication of the rumour' 'Availability and quantum of aggravated damages' 'Applicability of the defence that plaintiffs not likely to suffer harm']

Ratio Decidendi

The defendant's defence of qualified privilege failed because malice was established: she made the defamatory statement knowing it was untrue and had already spread the rumour to others. The statutory defence under section 22 also failed as her conduct was not reasonable, and the s13 defence failed as there was a real possibility of harm. Although the damage attributable to the particular publication was minimal relative to the widespread rumour, the plaintiffs were each entitled to $5,000 in damages as specific hurt arising from discovering the publication.

Court Disposition

Verdict for each plaintiff in the sum of $5,000.

Orders

  • ['Judgment for Amanda Cush against Meryl Lurline Dillon in the sum of $5,000.' 'Judgment for Leslie Francis Boland against Meryl Lurline Dillon in the sum of $5,000.' 'Costs stood over for argument.']