Dillon v Cush; Dillon v Boland [2010] NSWCA 165

Dillon v Cush; Dillon v Boland [2010] NSWCA 165

The Court of Appeal held that the trial judge erred in failing to find that the occasion of publication to Mr Croft was an occasion of qualified privilege at common law, in conflating the requirements for occasion and malice, and in reversing the onus of proof on malice. The trial judge further erred in relying on rejected evidence to find that the appellant spread the rumour outside a qualified occasion. The defence of qualified privilege requires determination in a new trial, as absence of honest belief alone does not constitute malice without more.

Jurisdiction
Australia
Judgment Date
15 July 2010
Procedural Posture
Appeal / Judgment on Appeal From District Court; Remitter for New Trial on Defence of Qualified Privilege
Outcome
Appeals allowed; District Court orders set aside; case remitted for new trial on defence of qualified privilege
Legal Topics
['qualified Privilege' 'malice' 'duty and Interest/relevance in Privilege' 'onus of Proof for Malice' 'determination of Occasion for Privilege']
['defamation'] ['qualified Privilege' 'malice' 'duty and Interest/relevance in Privilege' 'onus of Proof for Malice' 'determination of Occasion for Privilege']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From District Court; Remitter for New Trial on Defence of Qualified Privilege

Legal Issues

  1. 1 ['Whether the trial judge erred in failing to find that the occasion of publication was an occasion of qualified privilege at common law' 'Whether the trial judge reversed the onus of proof in relation to malice' 'Whether lack of honest belief in the truth of the matter establishes malice sufficient to defeat qualified privilege' 'Whether the appellant spread the rumour outside privileged occasions']

Ratio Decidendi

The Court of Appeal held that the trial judge erred in failing to find that the occasion of publication to Mr Croft was an occasion of qualified privilege at common law, in conflating the requirements for occasion and malice, and in reversing the onus of proof on malice. The trial judge further erred in relying on rejected evidence to find that the appellant spread the rumour outside a qualified occasion. The defence of qualified privilege requires determination in a new trial, as absence of honest belief alone does not constitute malice without more.

Court Disposition

Appeals allowed; District Court orders set aside; case remitted for new trial on defence of qualified privilege

Orders

  • ['The appeal is allowed.' 'The orders of the District Court made on 25 February 2009 and entered on 12 March 2009 be set aside.' 'There be a new trial on the defence of qualified privilege at common law.' "The Respondent is to pay the Appellant's costs of the appeal, including the application for leave to appeal,...