Case Law: Cush and Boland v Dillon, High Court of Australia upholds privilege defence – Giselle Kenny

1 09 2011

In a unanimous ruling ([2011] HCA 30) the High Court of Australia has dismissed an appeal by two employees of the NSW Catchment Management Authority (“CMA”) and affirmed that a defamatory statement made by their former colleague to the chairperson of the CMA board was protected by qualified privilege.

Their colleague stated that the two were having an affair and that it was “common knowledge”.  The High Court affirmed the decision of the NSW Court of Appeal, which had overturned an award of Aus$5000 damages each.  The matter will be returned to the District Court to determine whether the privilege is defeated by malice.

Background

The appellants, Amanda Cush and Leslie Boland, and the respondent, Meryl Dillon were employees of the Border Rivers-Gwydir Catchment Management Authority.  The CMA is a statutory body controlled by the CMA board, of which Boland and Dillon were members. Boland was also a member of the CMA’s internal complaints handling body, the Grievance Committee. Cush was the CMA general manager.

In December 2004, a CMA employee lodged a complaint against Cush with the Grievance Committee. When the Grievance Committee decided not to take action against Cush, the aggrieved employee told Dillon he suspected it was because Boland and Cush were having an affair.

This suspicion evolved into a rumour after Boland and Cush attended a CMA workshop in January 2005, where they were perceived by some as being somewhat familiar with one another.

In March 2005, Randall Hart, regional director of the Department of Infrastructure, Planning and Natural Resources, which was responsible for the CMA, contacted Dillon to discuss separate allegations that had been made against Cush.

Dillon told Hart about the rumoured affair, who then submitted a memorandum to the Director General of the department, recommending that the Department investigate Cush. The chairperson of the CMA Board, James Croft, emailed the board to rally support for Cush.

Dillon arranged to meet with Croft on April 8, 2005 in a caf in Moree, where Dillon relayed Hart’s concerns to Croft. According to Croft, she also said:

“It is common knowledge among people in the CMA that Les and Amanda are having an affair.

Procedural history

Cush and Boland brought defamation proceedings against Dillon in the NSW District Court.

At a section 7A hearing in November 2007, the jury found that Dillon had in fact made the defamatory statement, and that it conveyed imputations that Boland and Cush were acting unprofessionally by having an affair; that Boland was unfaithful to his wife; and that Cush was undermining the marriage of Boland and his wife.

The trial judge, Elkaim DCJ, rejected Dillon’s defence of common law qualified privilege, on the basis that sufficient malice on her part had been established such that any privilege that could have attached to the statement was negated at the outset.

His Honour did not determine whether the statement was made on a privileged occasion. The plaintiffs were each awarded $5,000 in damages.

On appeal, Bergin CJ in Eq (Allsop ACJ and Tobias JA agreeing) held the trial judge had erred in failing to find that the publication had occurred on an occasion giving rise to qualified privilege.

Her Honour also held that the trial judge’s finding of malice was based on evidence that Dillon had spread the rumour, which was hearsay and inadmissible.  The award of damages was set aside, and a fresh trial ordered. The plaintiffs appealed to the High Court.

Judgment

The appellants did not challenge the Court of Appeal’s finding that Dillon’s statement was made on a privileged occasion, but argued that her statement was “extraneous to, and made outside of, the umbrella of the applicable privilege” because she inaccurately “gave the rumour the quality of a known fact”.

In a joint judgment, French CJ, Crennan and Kiefel JJ held that Dillon’s statement was relevant to discharging her duty to disclose, and to safeguarding Croft’s interest in receiving, the information conveyed, because it concerned CMA staff related matters.

Their Honours held that the defence should not be unduly restricted, and that even statements that are not central to the matter communicated may still be relevant and protected, as was the case in Adam v Ward.

Their Honours noted in dicta that there must be evidence “that the statement was actuated by improper motive” in order for malice to negate the defence, and that neither knowledge that the statement was untrue nor lack of belief in the statement cannot be equated with actual malice.

Rumour or common knowledge

In a separate joint judgment, Gummow, Hayne and Bell JJ rejected the appellant’s submission that there was significant difference between “an allegation, belief or concern about an affair on the one hand” and the expression “common knowledge” the other, finding that both forms of words attributed the same unprofessional conduct to the appellants, namely that they were having an affair.

Hayne J (pic) in a separate judgment, was also critical of the appellant’s submission on the distinction between rumour and common knowledge, which was in his opinion, “too sharp”.

His Honour held that even if such a distinction was accepted, if there was a duty to or an interest in conveying that there is a rumour about a matter, then there would also be “at least as much a duty to convey” that the matter is common knowledge.

Pressing need not decisive

As noted by Gummow, Hayne and Bell JJ, the Court of Appeal decision in Holmes a Court v Papaconstuntinos, handed down shortly before this appeal was heard, undermined the appellants’ submission that a volunteered statement could only be privileged where there is a “pressing need” (defined strictly) to protect the interests of the defendant or a third party.

This submission relied on the dissent of McHugh J in Bashford v Information Australia (Newsletters) Pty Ltd.  But Holmes a Court held that the absence of such a pressing need is not decisive against the existence of a defence of qualified privilege. As a result, the appellants did not pursue this submission at hearing.

Appearances

For the appellants: T.A. Alexis SC and P.M. Wass instructed by Cole & Butler Solicitors.

For the respondents: G. O’L Reynolds SC with G. R. Rubagotti instructed by Banki Haddock Fiora.

This case report was first published in the Gazette of Law and Journalism, Australia’s leading online media law journal. It has, since 1986, been covering court cases, legislation and policy issues that affect the media. It has a comprehensive database of materials on defamation, contempt, suppression, protection of sources, freedom of information and privacy.


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