Cush v Dillon [2011] HCA 30

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

Matter No S309/2010

AMANDA CUSH APPELLANT

AND

MERYL LURLINE DILLON RESPONDENT

Matter No S310/2010

LESLIE FRANCIS BOLAND APPELLANT

AND

MERYL LURLINE DILLON RESPONDENT

Cush v Dillon

Boland v Dillon

[2011] HCA 30

10 August 2011

S309/2010 & S310/2010

ORDER

In each matter, appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

T A Alexis SC with P M Sibtain for the appellant in both matters (instructed by Cole & Butler Solicitors)

G O'L Reynolds SC with G R Rubagotti for the respondent in both matters (instructed by Banki Haddock Fiora)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Cush v Dillon

Boland v Dillon

Defamation – Defence of qualified privilege – Where occasion of qualified privilege existed to communicate existence of rumour – Where defendant published rumour as "common knowledge" – Whether matter published on occasion attracting defence of qualified privilege – Whether distinction between publication of rumour and publication of fact of rumour.

Defamation – Defence of qualified privilege – Rebuttal by express malice – Where defendant did not believe truth of publication – Whether lack of belief in truth of publication sufficient to establish malice.

Words and phrases – "express malice", "qualified privilege".

Defamation Act 1974 (NSW), s 7A.

1. FRENCH CJ, CRENNAN AND KIEFEL JJ. In two separate actions brought in the District Court of New South Wales under the Defamation Act 1974 (NSW) and heard together, a jury found that Mrs Meryl Dillon, the respondent in each of these appeals, had defamed the appellants, Ms Amanda Cush and Mr Leslie Boland. The jury found that, on 8 April 2005, she had said to Mr James Croft, "It is common knowledge among people in the CMA that Les and Amanda are having an affair." In the proceedings below the respondent did not suggest that the content of this statement was true. It was accepted by her that it was not. And she did not believe the statement to be true when she made it to Mr Croft. 2. The "CMA" is the Border Rivers-Gwydir Catchment Management Authority. It is a statutory body, representing the Crown, established under the Catchment Management Authorities Act 2003 (NSW)[1]. It is subject to the control of the relevant Minister[2]. Its general function is to carry out or fund "catchment activities"[3]. The affairs of the CMA are controlled by the Board of the CMA, the members of which are appointed by the Minister[4]. The office of member is a part-time office[5] and a member is entitled to be paid such remuneration, including travel allowances, as the Minister may from time to time determine[6]. At the time of the defamatory statement Mr Croft was the Chairperson of the Board of the CMA and Mrs Dillon and Mr Boland were Board members. Ms Cush was the General Manager. The CMA had offices in Inverell and Moree. Some five employees worked at the Moree office, where the rumour about Ms Cush and Mr Boland appears to have originated. 3. Internal complaints against officers of the CMA were dealt with by a "Grievance Committee" constituted by members of the CMA Board. A grievance against Ms Cush was filed with the Committee in December 2004. Mr Boland and Mr Croft were members of the Committee which dealt with that complaint. The Committee recommended that no further action be taken. The employee who had lodged the complaint was dissatisfied with this outcome and informed Mrs Dillon that he felt that his matter had not been dealt with impartially, because he believed Ms Cush and Mr Boland were having an affair. 4. The rumour about the appellants appears to have surfaced around the time of a workshop meeting of CMA staff which was held at Tweed Heads in January 2005. The trial judge, Elkaim SC DCJ, considered it likely that the rumour started before the meeting because it was unusual to hold meetings outside the organisation's area of responsibility and persons may have interpreted the reason for the meeting being held at Tweed Heads as connected to the fact that Mr Boland owned a unit nearby. Presumably Ms Cush was involved in the organisation of the meeting. The rumour appears to have strengthened, in part, because of a perception by some persons of familiarity between Ms Cush and Mr Boland. 5. Mr Randall Hart was the Regional Director of the Department of Infrastructure, Planning and Natural Resources, which Department had certain responsibilities for the CMA. He was also aware of the rumour in early 2005. On 30 March 2005 Mr Hart rang Mrs Dillon in order to have a confidential discussion concerning some allegations which had been made to him and which he intended pursuing. In the course of that discussion Mrs Dillon mentioned the subject of the rumour. It would not seem that Mr Hart was unduly concerned about it. Following that discussion Mr Hart prepared a memorandum to the Director-General of the Department dated 1 April 2005, in which he referred to allegations made against Ms Cush concerning approvals of inappropriate travel allowance claims and expenses associated with the Tweed Heads meeting, and also the circumstances surrounding the non-appointment of an indigenous officer to the CMA. The memorandum included advice that a Board member had contacted Mr Hart concerning "corporate governance matters" relating to the Board. Mr Hart recommended that the allegations against Ms Cush be referred to the Department for investigation. 6. These matters came to the attention of Mr Croft, who sought support for Ms Cush from the Board. On 31 March 2005 he sent an email in the nature of an "Out of Sessions Business Paper" to members of the Board to that end. Mrs Dillon responded to the email by enquiring as to the urgency of the issue. Mr Croft advised her that Ms Cush "may have to respond to an accusation prior to the next meeting and needs our support to be prepared for that eventuality". The other members of the Board provided that support. Mrs Dillon did not. 7. It is against this background that a meeting between Mrs Dillon and Mr Croft took place on 8 April 2005 at a café in Moree during which the defamatory words were spoken. Mrs Dillon said that she organised it after she had spoken with Mr Hart. At the meeting she informed Mr Croft of the telephone conversation she had had with Mr Hart and that he had raised a number of "concerns" about the CMA with her. In particular she referred to the complaint concerning the appointment process of the position of indigenous officer within the CMA, and issues of corporate governance and of staff management. In the latter regard she told Mr Croft that some members of staff had made complaints about "the conduct of the general manager" and she discussed the Board's attitude to staff and complaints about the grievance process. Mrs Dillon advised Mr Croft that Mr Hart was looking into the question of the Board's reaction to these issues. 8. Mr Croft gave evidence that during this discussion Mrs Dillon said it was "well known" or "widely known" that "Les and Amanda were having an affair", although the statement put to the jury was that it was "common knowledge". Nothing would appear to turn upon this difference. What is important, for the purposes of these appeals, is that such words do not convey merely that an unfounded rumour was circulating. They convey the fact of an affair which was known to staff at the CMA. The imputations found by the jury confirm such a perception. 9. The jury found that the statement conveyed the following defamatory imputations with respect to Mr Boland that: (a) as a member of the Board of the CMA he was "acting unprofessionally by having an affair with the General Manager of that organisation"; and (b) "he was unfaithful to his wife." With respect to Ms Cush, the jury found that the statement conveyed the defamatory imputations that: (a) as the General Manager of the CMA she was "acting unprofessionally by having an affair with a member of the board of that organisation"; and (b) "she was undermining the marriage of [Mr Boland] and his wife". 10. Mrs Dillon pleaded, by way of defence to the claims against her, that the statement had been made on an occasion of qualified privilege. In a separate hearing[7], his Honour the trial judge held that any privilege which may have attended the making of the statement had been lost, on account of malice on the part of Mrs Dillon[8]. His conclusion of malice was based upon two findings: that Mrs Dillon had previously spread the rumour and that she had not believed the allegation to be true when she made the statement to Mr Croft. His Honour also found that the conduct of Mrs Dillon was not reasonable in the circumstances. That finding was referable to, and destructive of, the statutory defence of qualified privilege[9]. But it does not affect the defence of qualified privilege at common law, which is preserved by the Defamation Act[10]. The statutory defence was not pursued by Mrs Dillon on appeal. 11. Reciprocity of duty and interest, as giving rise to a privileged occasion, is not a feature of the statutory defence, but it is the hallmark of the common law defence of a qualified privilege[11]. As Parke B explained in Toogood v Spyring[12], the law regards the publication of a false statement which is injurious to the reputation of a person as malicious: