Cush v Dillon and Boland v Dillon

Cush v Dillon and Boland v Dillon - [2009] NSWDC 21 - NSWDC 2009 case summary — Zoe

[52]

Mr Boland put the revelation from Ms Cush in this way:- "A. We had a meeting, I think it was - I'm pretty sure it was August 2005, a board meeting. At the conclusion of the board meeting Amanda, the general manager, come to me and told me that she had been told that Meryl had been spreading rumours about her and I having an affair." (T35.2)
I will return to the effects on the plaintiffs of receiving the news below as well as to the communications they had with their respective families. However, continuing with the narrative so far as the CMA was concerned, a short time after Ms Cush spoke to him Mr Boland spoke to Mr Croft. He told him what Ms Cush had said and asked Mr Croft if he would accompany him (Mr Boland) while he spoke with Mrs Cross and Ms Chittenden. Early in the following week Mr Croft and Mr Boland spoke with the above two women. First of all they spoke with Ms Chittenden. Mr Boland described this meeting as follows:- "A. We went up to Michelle's office and I said to her, "I have a matter I'd like to discuss with you, I'd like to ask you." I said, "I've just been informed at the last meeting that you told Amanda or - told Amanda that she and I were supposed to be having an affair, and that Meryl had passed that information on to you." She nodded and said, "Yes, that's right." She said it was - I said, "When did that happen?" She said, "I travelled back from Inverell in the February meeting with her" - that would have been 05, I presume - "and she made that statement to me. She says, 'I just think Les and Amanda are having an affair.'" " (T37.33)
Following this conversation, Mr Croft and Mr Boland spoke to Mrs Cross. This conversation then went as follows:- "Q. Can you tell his Honour what was said with Latitia in Mr Croft's presence. A. I said to Latitia exactly the same thing. I said, "I've just been informed that Meryl Dillon is spreading a rumour about Amanda and I having an affair. Have you heard anything about that, as Amanda said that you passed that message on to her?"

[68]

In addition to telling his wife, Mr Boland also told his daughter Mrs Kerri Phillips. In relation to her observations of her father she said:- " A. Okay. So my observations of him, when we spoke of the matter at different times, was that he was very concerned about it. He was very frustrated, as I said before. Quite angry, upset. I know there was a couple of occasions - I don't know exactly the points in time - but I know his eyes welled up and for that to happen to my dad is a massive thing, because he was so concerned about it and the effects on Mum." (T151.22) When asked what her father had said as to the source of the frustration she replied:- "A. He was frustrated that these lies had been told. He was frustrated that Meryl Dillon was out to ruin his reputation and to affect his family. That's why he was frustrated." (T152.1).
I may not have related every part of the evidence describing the effect on Mr Boland of the slander but I think I have stated enough to demonstrate that the effect on him was profound. It was no doubt compounded by the illness of his wife and the upset that he knew such a rumour would cause her. It was suggested by counsel for the defendant, as part of an argument on mitigation of damages, that Mr Boland's informing people about the allegations, including other Board members, was unnecessary and that in effect he was inflicting further damage upon himself. If I understood the submission correctly, if he would not have told so many people he would not have been as upset. I reject this submission. In my view people react differently to the same stresses. Ms Cush on the one hand felt she could not discuss the matter with her extended family. Mr Boland perhaps sought solace in informing people and in regard to the Board plainly felt it appropriate that as a Board member his fellow members should be aware of the allegation in case it affected his relationship with them. I do not think there was any failure to mitigate on Mr Boland's part.

[72]

The reason I do not think I have to firmly decide the 'circumstance' or 'relevance' questions is because I am satisfied that the plaintiff has established malice on behalf of Mrs Dillon and that, as a matter of law, the establishment of malice negates the privilege. As stated by the High Court in Roberts v Bass (2002) 194 ALR 161 at 179:- "Malice - the critical issue : In this way, the real focus of these appeals becomes that of considering the common law of malice as it operates as a disqualifying factor in the law of qualified privilege. There are two elements to note. The first is the general rule that, if an improper purpose is the actuating motive for a publication, the qualified privilege otherwise attracted to it by the occasion of its making is destroyed. The second is the relevance of the state of mind of the publisher as to the truth or untruth of the contents of the published material and the way in which such a state of mind is to be found or inferred."
Although the High Court makes it clear that knowledge that the defamatory statement is false will not necessarily destroy the privilege their Honours Gaudron, McHugh, Gummow JJ said at paragraph 77:- "If the defendant knew the statement was untrue when he or she made it, it is almost invariably conclusive evidence of malice. That is because a defendant who knowingly publishes false and defamatory material almost certainly has some improper motive for doing so, despite the inability of the plaintiff to identify the motive."
In my view, for Mrs Dillon to assert that the qualified privilege was not lost because of malice on her part she would need to show that she had otherwise acted properly in the bringing of the information to Mr Croft's notice. In other words I think I can look at her conduct outside of the meeting with Mr Croft on 8 April to assist me in determining whether she acted with or without a proper motive. I have already accepted that Mrs Dillon spread the rumour to Ms Chittenden and Mrs Cross. Against this background I do not see how, having already told other people about the rumour in clearly not qualified circumstances, Mrs Dillon could create a qualified circumstance with Mr Croft, in particular absent any disclosure by her that the rumour had already been spread to others and by others. In addition, I also think the previous dissemination of the rumour by Mrs Dillon would probably affect the creation of the necessary circumstance to ground the qualified privilege. In a situation such as the present there must be an implication that the confidentiality upon which Mrs Dillon relies in the conversation with Mr Croft was not set on a background in which she had told others of the rumour.

[84]

(b) Mr Croft did not republish the allegation and it only came to light some months later when the rumour had otherwise come to the attention of the plaintiffs. On the one hand I have no doubt that they did have a reaction to discovering Mr Croft had received the rumour. On the other hand, absent the publication to Mr Croft the effect of the rumour may have been little different. Had I been assessing damages for the whole of the effects of the rumour on each of the plaintiffs, and taking into account Section 46A of the Act, I think I would have assessed them in the order of $30,000. 85. I should say here that I do not see any good reason to award a greater sum of damages to any one of the plaintiffs. Their circumstances are quite different and they are quite different people. In some senses their reactions were also dissimilar. As stated in Aktas, however, the assessment of damages for defamation is not a precise science and despite the differences I do not see that the plaintiffs should be treated differently. On one argument the existence of Mr Boland's family circumstances might weigh in favour of a greater award to him but, on the other hand, Ms Cush's youth and her fear of condemnation as a home wrecker could be seen as weighing equally heavily. 86. Starting off then with the $30,000 representing the overall hurt from the rumour, the distilling of the harm arising from the 8 April publication does not leave any significant body of identifiable hurt. The rumour had been widespread, was known to people both within and outside the CMA, was apparently much talked about at the trade fair (Agquip) and, as one often anticipates with such rumours, presumably spread in the manner that such salacious gossip tends to attract the interest of the community. In addition is Mr Croft receiving the rumour, doing nothing with it and apparently treating it with disregard. Even if I am wrong on the effect it had on Mr Croft (assuming he thought it was true) the damages that could be attributed to the publication compared to the rumour at large must be reduced.

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