Cush v Dillon [2011] HCA 30

Cush v Dillon [2011] HCA 30

The statement made by Mrs Dillon to Mr Croft, even if phrased as 'common knowledge,' was sufficiently connected to the Board's functions and the concerns under discussion to fall within the scope of qualified privilege. Presenting the rumour as 'common knowledge' did not remove the statement from the privileged occasion. The trial judge erred by failing to first determine whether the occasion was privileged before addressing malice, and by finding that lack of belief in the statement alone established malice. The defence of qualified privilege can only be defeated by proof of actual malice—a purpose foreign to the occasion's duty or interest—which was not properly found in the trial below.

Parties
Appellant: Amanda Cush; Appellant: Leslie Francis Boland; Respondent: Meryl Lurline Dillon
Jurisdiction
Australia
Judgment Date
10 August 2011
Procedural Posture
Appeal / High Court Determination of Appeal From Supreme Court of New South Wales
Outcome
Appeals dismissed with costs.
Legal Topics
Qualified Privilege, Express Malice, Common Law Privilege, Relevance of Statements, Defamatory Imputations
Defamation Qualified Privilege Express Malice Common Law Privilege Relevance of Statements Defamatory Imputations

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Parties

Amanda Cush

Appellant

Leslie Francis Boland

Appellant

Meryl Lurline Dillon

Respondent

Procedural Posture

Appeal / High Court Determination of Appeal From Supreme Court of New South Wales

Legal Issues

  1. 1 Whether the occasion on which the defamatory statement was made attracted the defence of qualified privilege at common law
  2. 2 Whether the content of the statement (presenting a rumour as 'common knowledge') went beyond the scope of the qualified privilege
  3. 3 Whether lack of belief in the truth of the statement alone is sufficient to establish malice and defeat the privilege

Ratio Decidendi

The statement made by Mrs Dillon to Mr Croft, even if phrased as 'common knowledge,' was sufficiently connected to the Board's functions and the concerns under discussion to fall within the scope of qualified privilege. Presenting the rumour as 'common knowledge' did not remove the statement from the privileged occasion. The trial judge erred by failing to first determine whether the occasion was privileged before addressing malice, and by finding that lack of belief in the statement alone established malice. The defence of qualified privilege can only be defeated by proof of actual malice—a purpose foreign to the occasion's duty or interest—which was not properly found in the trial below.

Court Disposition

Appeals dismissed with costs.

Orders

  • In each matter, appeal dismissed with costs.
  • A new trial on the issue of malice is required as a result of the orders of the Court of Appeal.