Cush v Dillon: Workplace affairs, rumours and defamation

The defence of qualified privilege has been accepted by the High Court in the matter of Cush v Dillon; Boland v Dillon [2011] HCA 30.

 

In 2005 Ms Meryl Dillon, a board member of the Catchment Management Authorities (‘CMA’), told Mr James Croft, the then chairperson of the board that it was “common knowledge” that fellow board member, Leslie Boland was having an affair with the general manager of the CMA , Ms Amanda Cush.

At trial, Ms Dillon conceded that the respondents were not having an affair.

Mr Croft and Ms Cush who accepted that there was a legitimate interest for the chairperson to know whether they were in fact having an affair argued that stating that that their alleged affair was “common knowledge” was akin to spreading a rumour – proving malice on Ms Dillon’s part and thus negating the defence of qualified privilege under s30 of the Defamation Act 2005 (NSW).    

The majority of the High Court rejected the argument, stating that for the defence of qualified privilege to be destroyed, Ms Dillon’s statement must have proven to have been motivated by malice, with Heydon J stating:

If, as the plaintiffs accept, there was a duty to convey or an interest in conveying that there is a rumour about a matter, there would appear to be at least as much a duty to convey or an interest in conveying the proposition that that matter is a matter of common knowledge.

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