The average number of defamation cases in the High Court is usually only one per year. The contender for 2011 was Cush v Dillon  279 ALR 631. This case was rather unremarkable in terms of public interest and concerned false rumours of an affair within the workplace. The respondent, Mrs Dillon informed the chairman of the board of a water catchment management authority (Authority) that it was common knowledge that the General Manager, Ms Cush was having an affair with one of the board members, Mr Boland.
In fact, this was false and Mrs Dillon did not believe it to be true when she told the chairman. The question for determination was whether the communication to the chairman was protected by qualified privilege and whether the statement concerning the affair was relevant to such an occasion.
The Court of Appeal found that the communication was made on a privileged occasion on the basis that Mrs Dillon was raising concerns about the nature of a relationship between a member of the board and an employee in the context of a complaint about the Authority's grievance process. This finding was not challenged. The appellant's argument was that saying that the affair was common knowledge within the organisation made the statement extraneous to - and therefore not relevant to - the privileged occasion.
There are limits to what may be said on an occasion of qualified privilege, the test being the connection between the statement and the subject matter under privilege. It was held that Mrs Dillon had a duty to make the communication, which included communication of the existence of the rumour, which was therefore connected to the occasion of qualified privilege.
A claim for malice was made to defeat the qualified privilege defence. However, both the Court of Appeal and High Court held that in the circumstances it was not appropriate for the appeal courts to evaluate the evidence of Mrs Dillon on this issue. Therefore the matter was remitted to a new trial restricted to the issue of malice. Given the costs already expended, it may well be that this matter will be settled rather than go through another round of litigation.
Two cases have already been lined up for hearing in the High Court in early 2012. The first is Trad v Harbour Radio  NSWCA 61, which concerns a derivative of the defence of qualified privilege known as "reply to attack". This defence enables a person to reply to an attack within the same medium as the attack itself and be protected by qualified privilege (even where the attack was in a newspaper published to the world). In 2005, at a rally following the Cronulla riots, Mr Trad made a speech attacking Radio 2GB, claiming that it was whipping up fears and that it was racist. Radio 2GB responded to this attack and Mr Trad sued for defamation. A number of imputations were found to be conveyed, including that Mr Trad incites people to commit acts of violence and to have racist attitudes.
At first instance, the trial judge found a number of imputations were true or contextually true, or made by way of comment, and that the whole publication was made under qualified privilege without malice. The Court of Appeal overturned that decision with respect to truth, contextual truth and comment. With regard to qualified privilege, the court upheld the defence partially for five of the eight imputations and remitted the matter for assessment of damages in respect of those three imputations only.
The issues for the High Court will be firstly, whether a reply to attack must be proportional to the attack itself (in Penton v Calwell  70 CLR 219 the High Court said that the law permits a vigorous and aggressive response including one that impugns the general veracity of the attacker); and secondly, where an imputation invites a value judgment (here that the plaintiff was a disgraceful individual), is the test one of general community standards adopted by hypothetical right-thinking members of the community, or some other test?
The second case is Papaconstuntinos v Holmes a Court  NSWCA 59. This was a decision of a full bench of five judges of the NSW Court of Appeal. An issue had arisen as to whether a number of previous Court of Appeal decisions had to be overruled, and so a full bench was convened. The issue was whether a proposition put forward by McHugh J as part of a dissenting judgment in Bashford v Information Australia  218 CLR 366 was correct in law. That proposition was that where a communication is voluntary (in the sense that it was not made under a duty or in response to a request for information), then ordinarily it will not be privileged unless there was a pressing need at the time to make it. The Court of Appeal held unanimously that this proposition did not reflect the law and should not have been followed by the trial judge.
Finally, there were also a number of damages awards worthy of mention:
- Shandil v Sharma  NSWDC 273 – an allegation that the plaintiff, a school teacher in Hindi language studies, forged the signatures of two teachers on certain forms, when in fact those teachers gave him permission to sign on their behalf. $80,000 in damages, including $20,000 for three republications of the libel.
- Higgins v Sinclair  NSWSC 163 – allegations that the plaintiffs' invention (an electrical conductor system) was unsafe and that the plaintiff had stolen the intellectual property from the defendant. The unrepresented defendant failed on a truth defence. $100,000 in damages to each of the two plaintiffs.
- Cantwell v Sinclair  NSWSC 1244 – an allegation that the plaintiff, an employee of a dragon boat racing association, misused her position to block the defendant's attempt to move up the grades as an international umpire and appointed her female friends in key positions. The defendant sent two defamatory emails to as many people as he could throughout Australia who were involved in the sport. $75,000 including aggravated damages.
- Bui v Phung  QDC 239 – a dispute about fund-raising for the repair of a flagpole outside premises belonging to the Vietnamese Community of Australia, where the plaintiff was accused of being deceitful and untrustworthy. $20,000 damages were awarded.
THE YEAR AHEAD
It has been four years since the introduction of national defamation laws and overall it seems the objectives remain valid. With the increased reliance on social media, we can expect the defamation laws to be used more frequently and the provisions of the 2005 legislation fully tested. The key message for persons and organisations engaged in social networking is to remember their remarks are subject to the same legal requirements as any other media and the ease of posting comments, even if thought to be anonymous, will most likely generate an increase in online defamation claims.
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