I think that the decision of the High Court of Australia today in Cush v Dillon; Boland v Dillon [2011] HCA 30 (10 August 2011) http://www.austlii.edu.au/au/cases/cth/HCA/2011/30.html is one that would not normally have been granted special leave. All 7 members of the court are in agreement; the particular point that is made by them all is not especially new. The decision holds that where a defence of qualified privilege at common law is being considered, it will be defeated if the plaintiff can show that the defendant was actuated by "malice". Defining what amounts to malice involves consideration of why the occasion of the speech was privileged. Perhaps the main point of interest in the judgement is the statement that even where the defendant admits that they did not believe in the truth of what they said, malice has not necessarily been made out- see [28]-[29]-

"[28] In Roberts v Bass[42] it was pointed out that qualified privilege, which attaches to a defamatory statement, can only be destroyed by the existence of an improper motive that causes the person to make the statement. Thus, lack of belief in the truth of the statement, or even ill-will felt towards the person defamed, will not be sufficient. There must be evidence that the making of the statement was actuated by improper motive. As Cotton LJ said in Clark v Molyneux[43] the question is "whether [the defendant] acted as he did from a desire to discharge his duty.

[29] Knowledge on the part of a defendant that a statement is untrue may be almost conclusive evidence of malice. This is because a person who knowingly publishes false and defamatory material will usually have an improper motive. A lack of belief in the statement may stand in a different category. But in neither event is there warrant for equating knowledge or lack of belief with actual malice[44]."

Where a member of a statutory board had told a senior public servant in the area that it was "common knowledge" that the plaintiffs (2 other members of the board) were having an affair, and even where she conceded she did not believe the affair to be true, this was an occasion of qualified privilege, but the trial judge had not made enough findings to establish a defence of malice, and the High Court agreed with the NSW Court of Appeal that the case had to be sent back to trial level to resolve this issue.

So why was the High Court considering the case, and full 7-member bench at that? I suspect the reason lies in paras [40]-[41] in the joint concurring decision of Gummow, Hayne and Bell JJ:

40. " In this Court, Mr Boland and Ms Cush seek to restore the decision at trial that the defence was not made out, accepting, however, that if their appeals fail there will be a new trial on the question of malice. They submitted in their written submissions that the "voluntary" nature of the defamatory imputations should have been a decisive answer to the defence of qualified privilege. In that regard they relied upon a passage in the dissenting reasons of McHugh J in Bashford[50] where his Honour had said:
    

"Ordinarily the occasion for making a volunteered statement will be privileged only where there is a pressing need to protect the interests of the defendant or a third party or where the defendant has a duty to make the statement to the recipient. The common law has generally perceived no advantage to society in giving qualified privilege to volunteered statements in the absence of a pre-existing reciprocity of interest between the defendant and the recipient[51]."

He had added[52]:

"But where neither life is in immediate danger nor harm to the person or injury to property imminent, the fact that the defendant has volunteered defamatory matter is likely to be decisive against a finding of qualified privilege."

41. The appellants initially contended that there had been no "pressing need" for Mrs Dillon to speak as she had to Mr Croft so as to protect her interests or those of the CMA. However, there intervened the decision of the Court of Appeal in Holmes a Court v Papaconstuntinos  [2011] NSWCA 59 (21 March 2011), given shortly before these appeals were heard. In that case, the Court of Appeal held that the circumstance that a defamatory statement was volunteered in the sense described by McHugh J in Bashford is not decisive against the existence of a defence of qualified privilege. The upshot was that at the hearing in this Court of the present appeals, the appellants did not press this ground of their appeal."

Regards

Neil