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

New South Wales Court of Appeal

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

HEARING DATE(S): 7 May 2010

JUDGMENT DATE: 15 July 2010

JUDGMENT OF: Allsop ACJ at 1; Tobias JA at 5; Bergin CJ in Eq at 6

In each appeal 40173 of 2009 and 40174 of 2009: 1. The appeal is allowed. DECISION: 2. The orders of the District Court made on 25 February 2009 and entered on 12 March 2009 be set aside. 3. There be a new trial on the defence of qualified privilege at common law. 4. The Respondent is to the pay the Appellant's costs of the appeal, including the application for leave to appeal and is to have a certificate under the Suitors' Fund Act 1951 if so qualified.

CATCHWORDS: DEFAMATION - QUALIFIED PRIVILEGE - process to determine whether occasion of qualified privilege at common law - onus of proof in relation to malice - whether lack of honest belief in truth of matter complained of on its own establishes malice to defeat qualified privilege at common law

Catchment Management Authorities Act 2003 LEGISLATION CITED: Defamation Act 1974 Evidence Act 1995

CATEGORY: Principal judgment

Aktas v Westpac Banking Corporation Limited [2009] NSWCA 9 Bennette v Cohen [2009] NSWCA 60 Blair v Curran (1939) 62 CLR 464 Clark v Molyneux (1877) 3 QBD 237 CASES CITED: Cush v Dillon and Boland v Dillon [2009] NSWDC 21 Gross v Weston (2007) 69 NSWLR 279 Hadid v Australis Media Ltd unreported, NSWSC, Sperling J, 1 November 1996 Roberts v Bass (2002) 212 CLR 1 Toogood v Spyring (1834) 1 Cr M & R 181