In recent years, the High Court has had several opportunities to consider the defence of qualified privilege in defamation law. Both Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 and Aktas v Westpac Banking Corporation (2010) 241 CLR 79 dealt with the requirement of "reciprocity" of duty or interest in the defence. Cush v Dillon; Boland v Dillon (2011) 85 ALJR 865 has provided the Court with the opportunity to consider another issue raised in Bashford – the scope of the defence of qualified privilege – in a unique situation.

The cases were brought by Ms Amanda Cush and Mr Leslie Boland, respectively the General Manager and a Board member of a New South Wales statutory authority, the Border Rivers-Gwydir Catchment Management Authority ("CMA"). Rumours (which were later conceded to be untrue) of an affair between Ms Cush and Mr Boland had been circulating the organisation for several months. The rumours were apparently spurred by:

  • the fact that Ms Cush may have been involved in organising a CMA staff meeting in Tweed Heads, close to Mr Boland’s Gold Coast unit, when it was quite "unusual" to hold meetings in such locations; and
  • a perception of "familiarity" between the plaintiffs. A CMA staff member had noted that while Mr Boland was "normally aloof", there had been "signs of physical intimacy or a 'relative closeness'" between the plaintiffs in the workplace.  

Whilst the unfounded rumours were bubbling (which sounds like most workplaces), a CMA employee made an unrelated complaint against Ms Cush (covering matters such as travel claims and expenses). This was considered by the CMA’s Grievance Committee, which included Mr Boland and Mr Croft, the Chairperson of the Board. The Committee decided against taking further action. The employee was concerned about this outcome, as he believed that Mr Boland had played a role in determining the grievance whilst having an affair with Ms Cush. The employee raised this with Mrs Dillon (the defendant), who was also a member of the Board.

When it seemed that the allegations against Ms Cush may be referred to the Department of Infrastructure, Planning and Natural Resources, Mr Croft requested the Board’s support for Ms Cush. A week later, Mrs Dillon organised to meet Mr Croft at a café so that they could have a "private conversation".

At trial, the jury found that during this conversation, Mrs Dillon said to Mr Croft: "[i]t is common knowledge among people in the CMA that Les and Amanda are having an affair".

Mrs Dillon submitted that this statement had been made on an occasion of qualified privilege. Without determining whether privilege existed, the trial judge (in the New South Wales District Court) found that privilege would have been defeated by Mrs Dillon’s malice, as she had "previously spread the rumour", and had not believed it to be true when she made the defamatory statement.

On appeal, the New South Wales Court of Appeal held that the trial judge had erred in failing to consider whether the defamatory statement was made on a privileged occasion. Bergin CJ (with whom Allsop ACJ and Tobias JA agreed) found that qualified privilege did attach to the occasion, and ordered a new trial solely on the question of whether Mrs Dillon had acted with malice (which would defeat the defence of qualified privilege).

In the High Court, the plaintiffs’ central submission was that Mrs Dillon’s statement went outside the "umbrella of applicable privilege". They argued that by using the words "common knowledge", the defendant gave "the rumour the quality of a known fact".

All three judgments (French CJ and Crennan and Kiefel JJ; Gummow, Hayne and Bell JJ; and Heydon J) came to the conclusion the occasion attracted qualified privilege given "the duty Mrs Dillon had in disclosing and the interest Mr Croft had in receiving the information concerning CMA staff-related matters, including the nature of the relationship between members of the Board and members of staff". Furthermore, the defamatory statement was made within the scope of the privilege.

French CJ and Crennan and Kiefel JJ extensively considered the origins of the common law defence, limitations on the scope of qualified privilege and the requirements for proving actual malice. Their Honours rejected the plaintiffs’ argument on scope, finding that the "necessary connection" existed between the occasion of qualified privilege and the defamatory statement. Following the plaintiffs’ concession that privilege extended to communicating "the existence of the rumour"”, their Honours stated that "[i]t could not … then be suggested that the communication of the fact of an affair was less relevant to the matters discussed than a rumour". Their Honours also emphasised that the "error inherent in the statement [did] not deny the privilege".

The other two judgments focused more heavily on the plaintiffs’ distinction between expressing a statement as an "allegation, belief or concern", and expressing it to be "common knowledge". Gummow, Hayne and Bell JJ found that there was "no relevant distinction" between the two categories in this case, as both formulations would have implied "that, as a member of the Board and as General Manager of the CMA respectively, Mr Boland and Ms Cush were acting unprofessionally by having an affair". Similarly, Heydon J found that the difference "between saying that there is a rumour that something is the case (without conveying that the rumour is true) and saying that it is common knowledge that something is the case (conveying that it is true)" was "too sharp a distinction".

Accordingly, the High Court unanimously dismissed the appeal – so IP Whiteboard readers can stay tuned for the new trial on the question of malice.