Trad v Harbour Radio Pty Ltd

rties: A: Keysar Trad R: Harbour Radio Pty Ltd Representation: Counsel: A: Mr C. Evatt / Mr R. Rasmussen R: Mr R. McHugh SC / Mr M. Richardson / Ms G. Rubagotti Solicitors: A:Turner Freeman R: Banki Haddock Fiora File Number(s): Decision under appeal Citation: Trad v Harbour Radio Pty Ltd [2009] NSWSC 750 Date of Decision: 2009-07-31 00:00:00 Before: McClellan CJ at CL

Headnote [This headnote is not to be read as part of the judgment ] The appellant, Keysar Trad, was defamed by a programme broadcast by the respondent, Radio Station 2GB. The programme was published at approximately 10.05am on Monday 19 December 2005. The appellant brought proceedings against the respondent seeking to recover damages for the allegedly defamatory programme. At a trial pursuant to s 7A of the Defamation Act 1974 (NSW), the jury found that the following imputations were conveyed and were defamatory of the appellant: a. the plaintiff stirred up hatred against a 2GB reporter which caused him to have concerns about his own personal safety; b. the plaintiff incites people to commit acts of violence; c. the plaintiff incites people to have racist attitudes; d. the plaintiff is a dangerous individual; g. the plaintiff is a disgraceful individual h. the plaintiff is widely perceived as a pest; j. the plaintiff deliberately gives out misinformation about the Islamic community; k. the plaintiff attacks those people who once gave him a privileged position. It then fell to the primary judge to determine the defences and damages: s 7A(4), Defamation Act. The respondent defended all the imputations on the basis that each arose from matter published on an occasion of qualified privilege at common law, as a response to it asserted was an attack on it by the appellant in a speech he gave at a public rally the day before the radio broadcast. The respondent further pleaded that imputations (b), (c), (d), (h) and (j) were each a matter of substantial truth and related to a matter of public interest: s 15 Defamation Act . It claimed that any imputation held to be substantially true was published contextually to any others not so found in consequence of which the latter did not further injure the appellant's reputation: s 16 Defamation Act . The respondent further defended imputations (b) - (g) on the basis that they constituted comment on a matter of public interest within the meaning of Division 7 of the Defamation Act . The primary judge upheld the defences in respect of each imputation with the exception of the defence of justification in relation to imputations (h) and (j). He found imputations (b), (c), (d) and (g) were substantially true. He held, for the purposes of s 15 of the Defamation Act , that the respondent's response to what he described as the appellant's "attack on the Australian government and the media, in particular the [respondent's] radio station" at the rally, related to a matter of public interest. The primary judge also upheld the defence of contextual truth finding that by reason of the substantial truth of imputations (b), (c), (d) and (g), imputations (a), (h), (j) and (k) did not further injure the appellant's reputation. Although the primary judge's findings on truth and contextual truth were sufficient to establish the respondent's defence, the primary judge indicated his conclusions in relation to the remaining defences. He held that the matter complained of was published on an occasion of qualified privilege as a response to the appellant's attack on the respondent. He rejected a claim by the appellant that the defence of qualified privilege was defeated by the malice of the respondent. He also found that imputations (b), (c), (d) and (g) were defensible as comment, being expressions of opinion based upon the appellant's attack on the respondent at the rally. The primary judge dismissed the appellant's claim with costs. The issues for determination on appeal were : (a) Whether the defences of truth and comment can run in relation to the same imputations; (b) Whether the primary judge erred in finding imputations (b), (c), (d) and (g) were substantially true; (c) Whether the primary judge erred in upholding the defence of comment in relation to imputations (b) - (g); (d) Whether the primary judge erred in upholding the defence of qualified privilege; and (e) Whether the primary judge erred in finding there was no evidence of malice; Held by the Court, allowing the appeal in part : In relation to issue (a) 1 A defence of truth is available in respect of statements of fact and statements of opinion, but a defence of comment is not available in respect of an imputation properly characterised as a statement of fact: at [41], [48] - [57]. Telnikoff v Matusevitch [1992] 2 AC 343; Sutherland v Stopes [1925] AC 27; Jones v Skelton [1963] 1 WLR 1362; Griffith v Australian Broadcasting Commission [2010] NSWCA 257; applied. Petritsis v Hellenic Herald Ltd [1978] 2 NSWLR 174; Lloyd v David Syme & Co Ltd [1986] AC 350; (1985) 3 NSWLR 728; New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340; Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; Clarke v Norton [1910] VLR 494; Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 referred to. In relation to issue (b) 2 The primary judge erred in finding that the appellant believed that, in modern Australian society, death by stoning was the appropriate punishment for homosexuality: at [73], [76] 3 The primary judge erred in finding that imputation (b) was a matter of substantial truth both because the underlying factual finding could not be sustained and because he failed ask the question whether, given the attitudes and views properly found to be held by the appellant, a right thinking member of the Australian community would consider that he incites people to commit acts of violence: at [79]. 4 The primary judge erred in finding that imputation (c) was a matter of substantial truth because he failed to ask the question whether, given the attitudes and views properly found to be held by the appellant, a right thinking member of the Australian community would consider that the appellant incited people to have racist attitudes: at [81]. 5 The primary judge erred in finding that imputation (d) was a matter of substantial truth because it may be doubted that the appellant's views on homosexuality published on a website via a discussion board were likely to encourage violence against homosexuals, because there was no evidence that the views were expressed on more than one occasion and because he failed to determine whether right thinking members of the community would consider a person who held those views and expressed them in the form that they were expressed on one occasion, to be a dangerous individual: at [84]. 6 The primary judge erred in finding that imputation (g) was a matter of substantial truth because he failed to determine whether right-thinking members of the community would consider an individual who expressed views entirely repugnant to accepted values within the Australian community to be disgraceful: at [86].