Australia: Rumour has it: recent defamation claims

Last Updated: 29 February 2012
Article by Samantha Kelly

The average number of defamation cases in the High Court is usually only one per year. The contender for 2011 was Cush v Dillon [2011] 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 [2011] 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 [1945] 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 [2011] 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 [2004] 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 [2011] 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 [2011] 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 [2011] 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 [2011] 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.


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.

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.

DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.