Trad v Harbour Radio Pty Ltd

Mr C Evatt/Mr R Rasmussen (Appellant) Mr R McHugh/Mr M Richardson (Respondent) Solicitors:

Turner Freeman (Appellant) Banki Haddock Fiora (Respondent) File Number(s): CA 2012/362654 Decision under appeal Jurisdiction: 9111 Citation: Trad v Harbour Radio Pty Ltd [2009] NSWSC 750 Date of Decision: 2009-07-31 00:00:00 Before: McClellan CJ at CL File Number(s): SC 2006/20324

Judgment 1McCOLL JA: I agree with Basten JA's reasons and the orders his Honour proposes. 2BASTEN JA: The appellant, Keysar Trad, brought proceedings in defamation against the respondent in relation to statements made on a program broadcast on Radio 2GB on 19 December 2005. The proceedings were governed by the Defamation Act 1974 (NSW). A jury found that eight imputations were conveyed by the broadcast and that each was defamatory of the appellant. (The imputations are set out at [9] below.) However, the trial judge (McClellan CJ at CL) upheld the respondent's defences with respect to all imputations. In addition to upholding the defence of substantial truth, the trial judge upheld a defence of qualified privilege, with respect to all the imputations. He also upheld a 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. The claim was dismissed: Trad v Harbour Radio Pty Ltd [2009] NSWSC 750. Mr Trad appealed to this Court. This Court concluded that four imputations, (b), (c), (d) and (g), could not be justified as substantially true and that three imputations, (c), (h) and (k), did not fall within the defence of qualified privilege. The effect of the ruling on substantial truth was that the defence of contextual truth to these imputations failed. The three imputations were remitted to the Common Law Division for an assessment of damages: Trad v Harbour Radio Pty Ltd [2011] NSWCA 61; 279 ALR 183. 3The respondent ("the broadcaster") sought special leave in the High Court to challenge the order of remittal. It contended that this Court had erred in dealing with the defences of substantial truth and contextual truth. Had they been properly addressed, the broadcaster contended, the defence with respect to the remaining three imputations would have been upheld, with the result that the appeal should have been dismissed. 4That conclusion was accepted in part in the High Court: Harbour Radio Pty Ltd v Trad [2012] HCA 44; 247 CLR 31. The High Court held that imputation (c), which this Court found not to be covered by the defence of qualified privilege, was so covered. There thus remained two imputations, (h) and (k), to which, if any of imputations (b), (c), (d) and (g) had been substantially true, the defence of contextual truth could have applied. The High Court remitted to this Court for consideration the defences of substantial truth with respect to imputations (b), (c), (d) and (g) and contextual truth with respect to imputations (h) and (k). 5For the reasons set out below, the defence of substantial truth was made out, with the result that the appeal to this Court from the trial judge should be dismissed. Factual background 6The factual background is readily available from each of the decisions referred to above: there is no need to provide more than a general statement at this stage: the detail may be dealt with in respect of the substantive issues, so far as required. 7On 18 December 2005, a "peace rally" was held in Hyde Park in the centre of Sydney, attended by some 5,000 people. The rally had been organised in the aftermath of "the Cronulla riots", a phrase used to describe a major disturbance which had occurred on Cronulla beach approximately a week earlier. 8The appellant attended and spoke at the rally, referring on one occasion to the suffering of Muslims in Australia as a result of "the racist actions of predominantly one radio station", identified by the crowd as Radio 2GB. The following day, a presenter on Radio 2GB responded with remarks directed at the appellant which were the subject-matter of the appellant's claim in defamation. A jury held that the broadcast gave rise to a number of imputations. It is not necessary at this stage to set out the whole of the broadcast, but it may be found in the first judgment of this Court, at [11]. The key passages (with numbered paragraphs) were as follows: "[14] And it goes on, there is about ten minutes of this bile about how evil and hate filled this radio station is and about how we incite people to commit acts of violence and racist attitudes. I don't think that I've ever quite done that, like he did. In fact I don't think anyone here has ever done anything quite like that. ... [16] Now, Keysar Trad, you are a disgraceful individual and I'm not alone in thinking this, I won't talk to you on the air because you represent no one's views other than your own, so you know, why you call up purporting to be from the Islamic community is beyond me. You are one guy who basically has been marginalized. And I think the more you say the more you represent to me that you are a dangerous individual to be out there trying to represent the views because I think you're responsible about more misinformation about the Islamic community of the attitudes of Christian Australians than any other person. [17] Now he is widely perceived as a pest, that's the way I see him, he is not a peacemaker, so why he was invited to a peace rally is beyond me. ... [24] ... I mean this guy has a media monitoring company basically watching about any reference about him or for any reference that he believes will be advantageous towards his cause and there he is straight on the phone straight on the fax pumping out letters of complaint, he is one of the most complaining people around the place and he does nothing to try to address the actual issues, he just wants to sort of hatchet job people who once gave him the privileged position that he thinks he has." 9The relevant imputations accepted by the jury were as follows: "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." 10The imputations which have been remitted for further consideration by this Court, which were not protected by qualified privilege, were (h) (that the appellant is widely perceived as a pest) and (k) (that the appellant attacks those people who once gave him a privileged position). The trial judge did not uphold the substantial truth of those imputations, but he did uphold as matters of substantial truth imputations (b), (c), (d) and (g), which he concluded were contextual to imputations (h) and (k), in circumstances where the latter did not further injure the reputation of the plaintiff: see Defamation Act, s 16. Findings of High Court 11In order to correct any errors and omissions made in the first appeal, in accordance with the terms of the remittal, it is necessary to identify relevant conclusions in the reasons of the High Court. 12The principal findings are in the joint judgment of Gummow, Hayne and Bell JJ. Heydon J dissented, upholding a cross-appeal by the plaintiff, to the effect that the broadcaster was affected by malice and therefore the defence of qualified privilege must fail in respect of all imputations: at [91]. Heydon J accepted an invitation by the plaintiff not to permit remittal for the purposes of reagitating the defence of substantial truth: at [97]. Kiefel J wrote separately, concurring in the orders proposed in the joint reasons (other than as to costs): at [157]. 13On the first appeal, this Court upheld the appellant's allegations that the defence of substantial truth had not been made out with respect to imputations (b)-(g). Accordingly, the Court concluded that the defences of contextual truth in relation to the remaining allegations must also fail: at [120]. The Court further held that the defence of qualified privilege at common law was correctly upheld in respect of the imputations other than (c), (h) and (k): at [122]-[123]. Accordingly, it was those three imputations which this Court remitted for an assessment of damages. 14The High Court having upheld the broadcaster's submission that imputation (c) fell within the defence of qualified privilege, the broadcaster's remaining challenge concerned the rejection by this Court of its defence of substantial truth to imputations (b)-(g), in order to advance its defence of contextual truth to imputations (h) and (k). Before considering that challenge, it is appropriate to identify the basis upon which this Court was held to have erred in its earlier judgment. It is necessary to have regard to three aspects of the appeal in the High Court, namely: (a) the correct legal test to be applied to the defence of substantial truth; (b) the imputations to which the test was to be applied, and (c) the error in the approach of this Court. 15In relation to the test of substantial truth, in this Court the appellant had "(1) challenged, as a matter of law, the invocation of the 'right-thinking' person, and (2) disputed the factual findings upon which the primary judge had held that imputations (b), (c), (d) and (g) were substantially true ...": at [51]. The joint reasons further noted the submissions of the broadcaster that "the Court of Appeal was correct in its identification of the right-thinking community member test, but erred in holding that the primary judge had not applied it and, on remitter from this Court, itself should apply it": at [53]. 16The joint reasons stated at [50]: "The Court of Appeal held that the primary judge had erred in not asking the question 'whether, given the attitudes and views he found [Mr Trad] held, a right-thinking member of the Australian community would consider' that he incites people to commit acts of violence, and to have racist attitudes, is a dangerous individual, and is a disgraceful individual (imputations (b), (c), (d) and (g))." 17Two errors were identified in this approach. First, there was a question as to the kind of imputations to which such a test should apply. The trial judge stated at [12] that "[i]n most cases where a court is required to determine questions of fact, including whether or not an imputation is true, the answer will be reached by consideration of relatively uncomplicated issues of primary fact." In respect of all imputations other than (g) he applied that approach, and not a test invoking general community standards. In that the High Court held he was correct: at [56]. 18Secondly, where an evaluative test was required (as with respect to imputation (g)) reference to the requirement of a "right-thinking" person was inappropriate and the correct test (as in establishing defamation) was to ask whether "an audience composed of ordinary decent persons, being reasonable people of ordinary intelligence, experience and education who brought to the question their general knowledge and experience of worldly affairs" would hold that the person had been defamed: at [54], referring to Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460 at [4]-[6] and [39]-[40]. The difference between a "right-thinking" person and a "decent" person is, perhaps, a matter of emphasis. The Oxford English Dictionary Online defines "right-thinking" as "holding views or principles regarded as socially acceptable or morally sound"; "decent" is a somewhat curious word to use in this context, given its variable meaning, but may, as described in the Australian Concise Oxford Dictionary, mean "conforming with current standards of behaviour or propriety ... respectable ... kind, obliging, generous". In Chesterton, the joint reasons (of French CJ, Gummow, Kiefel and Bell JJ) stated: "[37] The reference in the general test, as stated in Sim v Stretch, to a plaintiff being 'lowered in the estimation' of the hypothetical referee does not imply the exercise of a moral judgment, on their part, about the plaintiff because of what is said about that person. It does not import particular standards, those of a moral or ethical nature, to the assessment of the imputations. It simply conveys a loss of standing in some respect. [38] The expression 'right-thinking' should not be taken to refer to the application by the hypothetical referee of moral or social standards, those referable to general character. Such an approach might also limit the application of the general test. It should be understood as a rejection of a wrong standard, one not held by the community. It should be taken to describe a person who shares the standards of the general community and will apply them." 19The joint reasons in Chesterton continued, in somewhat different vein, at [42]: "There are a number of assumptions apparent, in the decisions of the Court of Appeal in Gacic and in this case, about general community standards which might be applied to defamatory imputations, which require correction. Any standards which might be applied by the ordinary reasonable reader will vary according to the nature of the imputation. It should not be assumed that such standards are limited to those of a moral or ethical kind, such as may reflect upon a person's character. It should not be assumed that moral standards have no relevance to imputations concerning a person's business or professional reputation. And it should not be assumed that it will be necessary in every case to apply a standard in order to conclude that a plaintiff's reputation has been injured." 20From this it may be inferred that there should be no assumption as to the standards against which the attack on the plaintiff is to be judged, although, in the present case, it is clear that social and moral standards (and not business or commercial standards) were invoked. The trial judge, appropriately, referred to Chesterton and to "general community standards": at [15]-[17]. However, perhaps seeing no more than a muted warning as to the possible erroneous connotations of that term in Chesterton, he continued to use such language in discussing the views expressed by the appellant (in 12 paragraphs). 21The grounds of appeal in this Court - noted in the first appeal judgment at [65] - and the submissions of the appellant on the first appeal, adopted criticisms of the term "right-thinking" from Chesterton, Hepburn v TCN Channel 9 [1983] 2 NSWLR 682 at 693 (Glass JA) and other sources. However, the focus of the criticism was on the following point: "If [the trial judge] was correct in applying any test it should have been the ordinary Australian citizen living in a multi-cultural society. His Honour made no reference to such an ordinary citizen and did not consider the probability that such citizen might regard the [plaintiff's] views as the opinions of members of the Muslim community and that the [plaintiff] was expressing typical Muslim views. One attribute of the ordinary Australian citizen is a recognition of the right of freedom of speech even if the citizen does not agree with what was said." 22As noted above, it was the broadcaster who asserted in the High Court that this Court had been correct in its identification of the right-thinking community member test (although it also submitted that the primary judge had correctly applied it). The broadcaster was no doubt concerned at the possibility that multiculturalism could broaden acceptable community standards and thus limit the scope of the defence (although it would also limit the scope of that which was defamatory). 23It is not entirely clear whether the joint reasons adopted the submission that there was appellable error in the use of the term "right-thinking" member of the community and, if so, whether they accepted the broader approach preferred by the appellant. Thus the joint reasons stated: "[59] In the Court of Appeal Mr Trad challenged the factual basis of the findings by McClellan CJ at CL (grounds 4 to 9). His appeal respecting the adverse truth findings succeeded on a ground not taken by him, that McClellan CJ at CL had proceeded on 'a false basis'. In the absence of a notice of contention by 2GB seeking to uphold the findings on any different basis, the Court of Appeal found it unnecessary to address the parties' submissions as to the factual basis for them. [60] 2GB has succeeded in its appeal against the setting aside of the primary judge's findings of substantial truth. In the result, it will be necessary for the Court of Appeal to reconsider so much of the appeal by Mr Trad as challenged the holding of the primary judge upon the defences under s 15 and s 16." 24The appellant's submissions on the first appeal dealt with the findings of the trial judge with respect to substantial truth at pp 4-37: whether it was true to say that the plaintiff's appeal succeeded "on a ground not taken by him" need not be addressed. The proposition appears to have been taken from the broadcaster's submissions to the High Court (set out by Heydon J at [95]), although reference would be needed to the footnotes to understand the material on which reliance was placed. The more important point is the extent to which the appellant's submissions were accepted by the High Court, which is unclear: no member of the Court addressed them in their terms. It is sufficient for present purposes to note that this Court did adopt the language of a "right-thinking" member of the community in relation to each of imputations (b)-(g); in relation to (b), (c) and (d) no evaluative judgment was required and, in relation to (g), the language of Chesterton was to be applied. 25The only ground of appeal raised by the broadcaster in the High Court with respect to substantial truth was that this Court had erred in concluding that the trial judge failed to apply the right-thinking member of the Australian community test with respect to imputations (b)-(g): the ground made no distinction between the first three imputations and the fourth. Nevertheless, it may be inferred that the application of this test to the first three grounds was an error on the part of this Court (albeit one which the broadcaster was content to accept). However, as noted above, the joint reasons also stated that "2GB has succeeded in its appeal against the setting aside of the primary judge's findings of substantial truth": at [60]. Those findings were not reinstated: had they been, there would have been no remitter for reconsideration by this Court. Accordingly, the task now to be undertaken involves the reconsideration of the appellant's challenges to the trial judge's findings as to the substantial truth of imputations (a)-(g). Preliminary matters (a) pleading of contextual truth to (k) 26Before undertaking that task, there are three preliminary matters which need to be addressed. First, the appellant submitted that the broadcaster's defence did not raise contextual truth with respect to imputation (k). The pleading was not entirely clear. Paragraph 6 of the amended defence pleaded substantial truth with respect to imputations (a), (b), (c), (d), (g), (h) and (j). Paragraph 7 pleaded contextual proof in the following terms, namely - "each of the plaintiff's imputations was published contextually to each of the plaintiff's other imputations, as follows"; the pleading then set out paragraphs (a), (b), (c), (g), (d), (l) and (h). What was meant by "as follows" was unclear; whether the list of imputations was intended to mirror those to which substantial truth was pleaded is unclear; why imputation (l) (the plaintiff deliberately gives out misinformation about the Islamic community) was included, but not (k) is also unclear. 27In the course of submissions in this Court, the presiding judge pointed out that the trial had been run on the basis that contextual truth was raised with respect to imputation (k); that assumption had continued to operate on the first appeal and in the High Court; it was too late to raise a pleading point of that kind on the remittal: Tcpt, 10/4/13, p 14(40). 28It appears that the matter was first raised by the solicitors for the appellant on 25 February 2013, suggesting to the solicitors for the broadcaster that the High Court was in error in treating (k) as the subject of a pleading of contextual truth. In reply, the solicitors for the broadcaster asserted that paragraph 7 of the amended defence referring to "any of the imputations pleaded by the plaintiff" included imputation (k). The letter also noted that senior counsel for the plaintiff had raised the issue during the trial, on 18 May 2009, referring to the absence of any reference to "the last imputation", being (k), in the defence of contextual truth. Senior counsel for the broadcaster had responded that this was a misapprehension and continued (Tcpt, 18/05/09, p 2(15-20)): "Truth is pleaded, as my friend said, to the first 7 and each of those is published as a contextual truth to all of the others, which includes 8. The only defence of a truth kind in relation to item 8 on my friend's sheet is contextual truth." The letter noted that the supposed omission had not been referred to again until 25 February 2013. 29It should be accepted that this explanation of paragraph 7 of the amended defence was accepted; it was not suggested that any further amendment was required; the proceedings were conducted over more than three years on that basis. Contextual truth was run as a defence to imputation (k) and this Court must deal with the matter on that basis, in accordance with the remitter from the High Court. (b) effect of finding one or more imputations substantially true 30Section 16 of the Defamation Act provided a defence of contextual truth where "one or more imputations contextual to the imputation complained of ... are [sic] matters of substantial truth, and ... the imputation complained of does not further injure the reputation of the plaintiff". Section 16 required the tribunal of fact "to weigh or measure the relative worth or value of the several imputations contended for by both parties"; the defence failed if the plaintiff's imputations would still have had some effect on his or her reputation, notwithstanding the substantial truth of the defendant's contextual imputations. The test in s 16(2)(c) has been referred to colloquially as a requirement that the contextual imputations "swamp" the plaintiff's imputations: Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; 278 ALR 232 at [139] - [140] (McColl JA; Spigelman CJ, Beazley JA, McClellan CJ at CL and Bergin CJ in Eq agreeing). In John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; 53 NSWLR 541, in rejecting a submission that the provision required "weighing imputation against imputation", Spigelman CJ (Rolfe AJA agreeing) stated: "[5] Section 16(2)(c) does not focus attention on a contextual imputation as such but on the proposition that such an imputation is a 'matter of substantial truth'. It is 'by reason' of such 'substantial truth' that a defence to an imputation pleaded by a plaintiff can be made out on the basis that the plaintiff's imputation does not 'further injure the reputation of the plaintiff'. For purposes of determining whether the s 16 defence is capable of being made out, the Court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself. [6] Hodgson JA emphasises the use of the words 'further injure' and notes that a person's reputation is injured by the publication of an imputation. I accept that s 16(1) requires that, for an imputation to be contextual, it must be 'made by the same publication'. However, s 16(2)(c) does not begin with words to the effect 'by reason of the publication of the contextual imputation' or 'by reason of the injury caused by the publication of the contextual imputation'. The drafter appears to have assumed that there was such injury and then directed attention to 'substantial truth' which, in my opinion, ought be taken into account in formulating the conclusion for which s 16(2)(c) calls." 31Some care must be taken in the application of Blake: there the imputations relied upon to give the context were not those pleaded by the plaintiff. Further, the matter was dealt with pre-trial, as a pleading point: namely, by asking whether the defendant's proposed contextual imputations were capable of providing a defence to the plaintiff's imputations. 32In the present case, there was no dispute that, in principle, establishing the substantial truth of one or more of the appellant's imputations (b)-(g) could have the effect that neither of imputations (h) or (k) would further injure the appellant's reputation. In other words, the broadcaster did not need to establish substantial truth of all of (b)-(g) in order to succeed on contextual truth with respect of (h) and (k): success would depend upon weighing the injury to reputation of those proved to be substantially true, against any injury flowing from (h) and (k). 33So far as concerned the basis on which the weighing exercise was to be carried out, the broadcaster accepted that it was necessary to look at the matters relied upon to establish the substantial truth of the contextual imputation(s), which were to be weighed against the injury to reputation caused by the particulars supporting the other imputations. The appellant accepted that what needed to be compared were not the imputations themselves, but the particulars behind them: Tcpt, 10/04/13, p 54(5-20). He did not suggest that the exercise proposed by the broadcaster was inapt. Accordingly, the issue does not require to be addressed further. (c) meaning of "incites" 34There was little assistance provided at trial or, initially in this Court, in relation to the concept of incitement, which forms a critical element in imputations (b) and (c). It is to be treated as an ordinary English word, meaning to urge or spur on others to action: Oxford English Dictionary Online, "incite". That meaning has been applied in the context of inciting to commit a crime in R v Crichton [1915] SALR 1 at 2-3 (Way CJ, Murray and Gordon JJ agreeing), and by the New South Wales Administrative Decisions Tribunal in Kazac v John Fairfax Publications Ltd [2000] NSWADT 77 in dealing with a complaint under s 20C of the Anti-Discrimination Act 1977 (NSW), which makes it unlawful for a person to "incite hatred towards ... a person or group of persons on the grounds of the race of the person or members of the group". In applying the test, the Tribunal adopted, from defamation cases, the standard of the "ordinary reasonable reader", to determine whether the conduct should be so characterised. 35The Victorian Court of Appeal considered the meaning of "incite" in s 8 of the Racial and Religious Tolerance Act 2001 (Vic): Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; 15 VR 207. That section requires that "a person must not, on the ground of the religious belief or activity of another person ... engage in conduct that incites hatred against ... that other person". As the Victorian Court of Appeal noted, questions of incitement can depend upon (i) the subjective motivation of the speaker or actor, (ii) the likely effects of the words spoken or the conduct in question, or (iii) the actual effect on the audience. Thus, Nettle JA stated at [16]: "Evidently, there can be no incitement in the absence of an audience. It is not a contravention of s 8 to utter exhortations to religious hatred in the isolation of an empty room. If conduct is to incite a reaction, it must reach the mind of the audience. And if conduct is to be perceived as inciting a particular reaction, it must reach the mind of an audience as something which encourages that reaction. So, for conduct to incite hatred or other relevant emotion it must reach the mind of an audience as something which encourages those emotions. So, therefore, the question of whether it has that effect will depend upon the perception of the audience." 36Neave JA (with whom Ashley JA agreed) stated that "the Victorian legislation is not concerned with whether the alleged inciter had been actuated by the religious belief of a person or class of person, but with whether the audience was incited to hatred (or other relevant emotion) of another group, because of that group's religious beliefs": at [141]. 37In the present case, a somewhat different approach should be adopted. The appellant's reputation was not damaged because he set out to incite people to violence, or because what he said had the ability to incite people to violence, or because he did incite people to violence, but because the broadcaster said that he incited people to violence. To determine a defence of substantial truth, it is necessary to know how that imputation should be understood. It is unlikely to have invoked the third meaning: a person's reputation does not generally depend on the effect or consequence of things they do but on their purpose or intention. Thus, it is also unlikely that the imputation referred to objective qualities of the statements made and the likelihood they will have a particular consequence. Rather, the sting of the imputation lay in the view that the appellant intended, or was at least reckless as to, the consequences of his words. The focus on the inciter's intention makes the likely response of the ordinary decent reader (a matter which was the focus of the trial judge's approach) of limited relevance. 38That does not mean that to incite violence it was necessary that he expressly invited his audience to engage in violent conduct: there are more ways than one to move people to action, as illustrated by Mark Antony's speech in Julius Caesar. However, different conclusions may reasonably be reached as to statements which fail to condemn the words of others and those which express views in the speaker's own words. Substantial truth (a) grounds of appeal 39Because there was some doubt as to the ground upon which the appellant had been partly successful in the first appeal, it is convenient to set out the grounds in the original notice of appeal which need to be addressed on the remitter: they were grounds 4-11, involving particularly the factual challenges set out at grounds 4-9: "4. His Honour erred in finding the Appellant incited people to commit acts of violence and to have racist attitudes because there was no evidence that the Appellant incited anyone to commit acts of violence or to have racist attitudes. 5. His Honour erred in his understanding of what was said by Sheikh al-Hilali and further erred in condemning the Appellant because of his alleged failure to criticise the Sheikh. 6. His Honour erred in that he misquoted or misunderstood the evidence of the Appellant and the evidence as to what had been said by Sheikh al- Hilali. 7. His Honour erred in finding that the Appellant and Sheikh al-Hilali had referred to or approved of child martyrs or child suicide bombers. 8. His Honour erred in finding that the Appellant held racist and anti-Semitic views and incited persons to commit acts of violence and have racist attitudes. 9. His Honour erred in finding that the Appellant was a disgraceful and dangerous individual merely because he exercised his right to freedom of speech. 10. His Honour erred in finding that imputations (b), (d), (d) and (g) were substantially true. 11. His Honour erred in upholding the Respondent's defence of contextual truth." 40As may be seen, grounds 4 and 8 did little more than challenge the ultimate findings of substantial truth with respect to imputations (b) and (c); grounds 5-7 related specifically to the trial judge's findings as to the speeches by Sheikh al-Hilali. Ground 9 was largely argumentative but challenged the ultimate findings with respect to imputations (d) and (g). Grounds 10 and 11 challenged the findings of substantial truth and contextual truth globally. The bases of the challenges were only articulated in submissions. 41Although the broadcaster invited the Court to have regard to the evidence upon which the findings of the trial judge were made, it did not invite this Court to make additional findings of fact. Accordingly, reference will be made to the evidence only so far as necessary to address the issues raised. 42Further, the broadcaster did not challenge a criticism made of the reasoning of the trial judge in the first appeal judgment in relation to homosexuality. The trial judge had held, at [89] that "at least in 1999 [the appellant] was of the view that homosexuality is a crime for which the appropriate punishment was stoning to death". This Court took a different view of the underlying document written by the appellant and posted on a website: at [70]-[76]. In all other respects, the broadcaster submitted that the findings of fact made by the trial judge and challenged by the appellant were open for reconsideration on the remitter. The appellant did not contend otherwise. (b) imputation (b) 43The trial judge dealt with the volume of material submitted by the broadcaster in support of its contention that the imputations were substantially true, making findings as to the views held by the plaintiff and the occasions on which he had expressed those views. With respect to imputation (b) (the plaintiff incites people to commit acts of violence), the trial judge correctly approached the matter as an exercise in fact-finding, not involving evaluative judgment according to community standards; his findings were set out in the following passages: [99] The defendant submitted that because the plaintiff holds and expresses the view that many women rather than men are responsible for rape there is increased probability that women will become the victims of sexual violence. It was further submitted that the plaintiff's defence of Sheikh Hilali's views that child martyrdom in war was honourable and that suicide bombing was a legitimate tool, incited violence in the sense that these views encouraged children to go to war and encouraged acts of terrorism. Furthermore it was submitted that the anti-Semitic material on Radio Islam and the references to the Protocols of Zion and Mein Kampf on the plaintiff's website were an incitement to violence. The defendant submitted that encouraging beliefs that Jewish people foment conspiracies to take over the world have been a driving force for many acts of violence against Jewish people for centuries. These views were reflected in the extreme acts of some governments, particularly Germany in the 20th century. It was further submitted that maintaining in strident language that the appropriate punishment for homosexuals is stoning to death is an incitement to violence. Describing homosexuals as depraved perverts and likening homosexuality to cancer dehumanises homosexuals and exposes them to violence. [100] There is little doubt that many of the plaintiff's remarks are offensive to Jewish persons and homosexuals. Although the plaintiff said that he was not aware of the content of some of the links on his website I do not believe him. The plaintiff is plainly a person who has devoted considerable time to communicating his views to other people. He impressed me as concerned with matters of detail and it is inconceivable that he would not have been aware of the links on his site. Many of his remarks are distasteful and appear to condone violence. His views about the punishment of homosexuals, and the use of children as suicide bombers in the war between Palestinians and Israelis are properly described as inciting people to commit violence. Although expressed as an endorsement of the view of Sheikh Hilali I am satisfied that he holds those views. This imputation is substantially true." 44On the first appeal, this Court raised two issues with respect to these conclusions. The first was that a significant underlying factual finding could not be sustained; the second was that the trial judge had failed to apply the general community standard to his assessment of that imputation: at [79]. The second criticism was rejected by the High Court as erroneous: imputation (b) required no more than an appropriate finding based on the primary facts. 45It is apparent that the findings of the trial judge with respect to this imputation cannot be assessed purely by reference to the two paragraphs set out above. The first, [99], merely sets out the broadcaster's submissions. The second, [100], focuses almost entirely upon the views and opinions held by the appellant, with only passing reference to "many of his remarks" which "appear to condone violence". A finding of substantial truth needed to focus upon the element of incitement with respect to at least some of the matters identified by the broadcaster. Putting to one side the last allegation of demanding death by stoning for homosexuals, the topics were support for the views that: (a) women rather than men are responsible for rape; (b) child martyrdom in war is honourable; (c) suicide bombing is a legitimate tool of war; (d) there is merit in anti-Semitic material, including reference to the Protocols of Zion and Mein Kampf, and (e) homosexuality is a cancer and a perversion. 46The first matter related to a speech given by Sheikh Hilali at the Lakemba Mosque in October 2006, in which he had compared the situation of women who are raped with that of a person who left a kilo of meat on a plate in the backyard, stating "Is the fault [that] of the cat or the uncovered meat?" It was not suggested that the appellant was responsible for the speech: rather, reliance was placed on comments made to the media outside the Mosque which included the proposition: "The scanty dress might seem like an invitation, that's what he said that that invitation must be resisted. He was trying to encourage his flock towards modesty and chastity." 47The trial judge held that Sheikh Hilali's remarks, which included reference to "a merciless judge who gives you 65 years", made after the trial and conviction of members of the Sydney Lebanese community of a notorious gang rape, were to be understood as referring to rape. He also described the appellant's attempt to explain the speech "as an attempt to discourage Islamic people from having sex outside marriage" as "disingenuous": at [35]. He concluded that the appellant had attempted on various occasions "in a clumsy way, to defend Sheikh Hilali who had found himself embroiled in a significant public controversy": at [37]. 48However, the trial judge did not articulate how providing an attempted public defence of remarks by a leader which clearly did incite violence, without disowning them, of itself constitutes incitement to violence. In some circumstances such an inference might be drawn, but the available material did not warrant that conclusion in this case. 49The second and third points arose from a speech given by Sheikh Hilali in February 2004 at the Sidon Mosque in Lebanon in which he promoted the use of children as suicide bombers: set out by the trial judge at [53]. In a letter, the appellant complained to the ABC about the translation of the speech: at [54]. The letter did not, as the trial judge noted, condemn the Sheikh's remarks: at [57]. Although, in October 2004, the appellant described Imam Hilali as "a voice of moderation", which may have been disingenuous, it could hardly be described as incitement to the kind of violence and abuse of children promoted by the Sheikh. 50In March 2002, the appellant gave an interview to the Courier Mail in Brisbane, referring to a speech given by Sheikh Hilali in Beirut in December 2001. The appellant noted that the Sheikh had referred to "suicide bombers" and said that it was "a legitimate term [sic] of removing the enemy from the occupied territories" and that "Sheikh Hilali did not condone martyrdom operations or other civilian killings outside the occupied area": at [65] (trial judgment). The trial judge described this at [67] in the following terms: "I am satisfied that the reported defence of the Sheikh by the [appellant] should be understood as the [appellant] endorsing the Sheikh's views. When understood in conjunction with the [appellant's] implicit endorsement of the portion of the Sheikh's Sidon Mosque sermon concerned with child martyrs, it is apparent that the [appellant] has publicly expressed views endorsing the tactical use of children as suicide bombers. In this respect the [appellant] has expressed views which would be utterly repugnant to the Australian community." 51There is a difficulty in combining the potential effect of a newspaper report in March 2002 with a failure to condemn similar remarks made two years later. Further, the reporting of such views, even as a spokesperson for their proponent and even if the views are condoned, does not necessarily constitute incitement to violence in itself. The same may be said of the finding by the trial judge that a call to delist Hezbollah from Australia's list of terrorist organisations was "entirely unacceptable to most people in the Australian community". So much may be accepted, but it falls short of incitement to violence. 52The anti-Semitic material referred to on the appellant's own website falls into a somewhat different category. The appellant's website contained a link, prior to November 2001, to a Swedish website referred to as "Radio Islam, very good articles concerning Islam and Muslims - mainly political": at [80] (trial judgment). It was not in issue that the Radio Islam site contained virulent anti-Semitic material. The trial judge disbelieved the appellant's denials that he was aware of the link or the contents of the Radio Islam website. These findings support the conclusion that the appellant incited violence against Jewish people. 53Finally, whilst accepting this Court's earlier conclusion that in the discussion of homosexuality, the appellant was not promoting the death by stoning of homosexuals in current times, the broadcaster nevertheless pursued its contention that other passages in the article published by the appellant online demonstrated that he viewed homosexuals as animals and predators and homosexuality as a perversion and a cancer. The broadcaster maintained the submission that by dehumanising homosexuals in strident language, the appellant incited others to violence against them. 54The language used by the appellant with respect to homosexuals and homosexuality was, in part strident, and thus calculated to stimulate homophobia and possibly indirectly encourage violence against homosexual people. However, the article is lengthy and ranges widely across religious views and other fields of discourse. It is a more thoughtful piece than much of the surrounding blogs, though that is not saying much. More importantly, the strident language, which was set out by the trial judge at [87]-[92], and fairly characterized by the appellant as involving hyperbole, was a small part of the total. It should not fairly lead to the inference that it was intended to incite others to violence against homosexual people. 55It follows from the finding that the appellant incited violence against Jews, that imputation (b) was substantially true, but only on that limited basis. (c) imputation (c) 56In relation to imputation (c) (the plaintiff incites people to have racist attitudes) the primary judge dismissed the broadcaster's reliance upon an article published in December 1996-January 1997 on the basis that it was "robust contribution to a debate which was taking place within Australian society at the time": at [101-[102]. The trial judge continued: "[103] The defendant also relied in relation to this imputation on the plaintiff's comments on the speech in January 2007 by Sheikh Hilali. I have already discussed this speech and the plaintiff's response to it at [73] above. The defendant further relied on the fact that the plaintiff maintained a link on his website to that of Radio Islam. [104] I am satisfied that the plaintiff does hold views which can properly be described as racist. I am also satisfied that he encourages others to hold those views. In particular he holds views derogatory of Jewish people. The views which he holds would not be acceptable to most right thinking Australians. This imputation is substantially true." 57The penultimate sentence suggested that the trial judge in fact thought the community standards test to be applicable to this imputation, but, arguably if this sentence is ignored, the finding of substantial truth would not be affected. Given the conclusion that support expressed by the appellant for sources of virulent anti-Semitism was sufficient to justify a finding that he incited others to anti-Semitic violence, it follows that he incited people to have racist attitudes with respect to Jews. Imputation (c) was therefore justified as substantially true. (d) imputation (d) 58With respect to imputation (d) (the plaintiff is a dangerous individual) the reasoning extended to a range of matters: at [105]-[111]. The findings of the trial judge were encapsulated in the conclusion at [110] in the following terms: "A person may hold a view which is dangerous without that person being described as a dangerous individual. To express a view on one occasion which may encourage violence or inappropriate conduct towards others does not of itself make that person dangerous. However, when those views are expressed on many occasions by someone who has significant influence within the community and has access to opportunities to influence others through the media and the views expressed are an incitement to violence or disparagement of women, Jews, and homosexuals, it is, in my judgment, appropriate to describe that person as a dangerous individual." 59There was no reference to general community standards in this passage: the criticism in the judgment on the first appeal based on this omission - at [84] - was erroneous. To the extent that findings with respect to incitement to violence and incitement of racist attitudes have been upheld, there is support for the conclusion that the appellant was properly described as a "dangerous" individual, in circumstances where the views he expressed were capable of influencing others, were intended to influence others and would have a receptive audience in some (if limited) quarters. 60There were other aspects of the trial judge's findings in this respect which should also be accepted. The fact that the appellant did not incite violence against women, did not mean that his publicly stated opinions which trivialised the responsibility of rapists and demeaned their victims may not have had dangerous consequences: at [106]. There may be a fine line between incitement to violence and promoting a culture in which violent conduct (in this case against women), whilst deprecated is nevertheless trivialised. Further, whilst the treatment of the use of boys as martyrs in war may not constitute active incitement to violence, as the trial judge said, it involved putting forward ideas which risk an unbalanced or fanatical person being encouraged, or encouraging others, to participate in such activities: at [107]. These factors, combined with the respects in which he incited others to violence and racist attitudes, being a person with a public presence and influence in some quarters, fully support the characterisation of the appellant as a dangerous individual. The finding of the trial judge is sustained in relation to imputation (d). (e) imputation (g) 61Finally, the findings of the trial judge with respect to imputation (g) (the plaintiff was a disgraceful individual) were briefly stated at [112]-[114]. It is convenient to set those findings out in full: "[112] I am satisfied that the plaintiff holds and expresses views which would not be acceptable to right thinking members of the Australian community. I have previously discussed them. Some of his views and the manner in which they are expressed are entirely repugnant to accepted values within the Australian community. [113] The question which the pleaded imputation raises is not whether any of the views of the plaintiff are disgraceful but rather whether by his words and actions he can be described as a disgraceful individual. The plaintiff's attitude to women and homosexuality, apparent support of the use of children in the pursuit of terrorist actions against Israel and his failure to condemn the events of September 11 are views which may be shared by some people. However, those views are not acceptable to the general Australian community and I am satisfied that a person who holds them and, more particularly who encourages others to share those views, may be described as a disgraceful individual. [114] A person who is convicted of a crime of any significance will be described as being disgraced. A person who encourages others to support attitudes repugnant to the Australian community or encourages violence against women, homosexuals or various ethnic groups and supports child suicide bombers and acts of terror or when given the opportunity fails to condemn these views would be similarly described. The plaintiff is such a person." 62These findings must be reconsidered for two reasons. First, in the first sentence at [112] there is reference to "right thinking" members of the Australian community. The characterisation as "disgraceful" was held by the High Court to constitute an evaluative judgment, rather than an exercise in fact-finding based on the views of the Court. Accordingly, it is necessary to consider whether the adverse findings made about the appellant warrant the conclusion that he would be considered disgraceful by ordinary decent persons, being reasonable people of ordinary intelligence, experience and education, bringing to the question their general knowledge and experience of worldly affairs: High Court at [54]. 63The term "disgraceful" need not be defined: it gains its colour from synonyms such as "shameful", "dishonourable" and "disreputable": Oxford English Dictionary Online, "disgraceful", meaning 2. Any form of incitement to violence of a kind reasonably described as anti-social would satisfy such a standard. So would incitement to racist attitudes and the statements relating to homosexuals and homosexuality and the trivialisation of rape, discussed above. Although the trial judge may have erred in his approach to determining the substantial truth of this imputation, the conclusion reached was correct. (f) conclusions - substantial truth 64These conclusions differ in part from those reached by the Court in the first appeal. However, with respect to imputations (d) and (g), the findings of the trial judge were rejected because the conclusion appeared not to be based upon the standard of "right-thinking members of the community". This Court, wrongly as the High Court has held, failed to address the question by reference to the correct test. Further, in order to address the question, it would also have needed to form views about other findings which were not reconsidered. These include the questions relating to further injury to the appellant's reputation by imputations (h) and (k), viewed in the light of the bases on which the contextual imputations have been sustained. Further diminution of reputation 65It remains to consider whether, given the findings of substantial truth with respect to imputations (b)-(g), imputations (h) and (k) further injured the reputation of the appellant. The trial judge set out the approach to the defence in s 16 of the Defamation Act involving contextual truth at [125]-[128]. Those statements of principle are not challenged. On the basis of imputations (b)-(g), as found to be substantially true at trial, the further findings were that imputations (a), (h), (j) and (k) did not occasion further injury. The judge concluded that his findings "that the plaintiff incites acts of violence, incites racial attitudes, is dangerous and perhaps most significantly is a disgraceful individual occasion such injury that other imputations are incapable of causing further injury": at [129]. 66Although the findings of substantial truth have been upheld on a more limited basis, the finding of no further harm in respect to (h) (the appellant is widely perceived as a pest) must stand: that imputation is little more than a term of abuse, which could not further damage the appellant's reputation. A pest, on any view, involves a lesser level of opprobrium than being dangerous or disgraceful. 67Imputation (k) falls into a somewhat different category. It must be understood in its context. The statement occurred in the course of a dialogue between the broadcaster's journalist, Jason Morrison, and a caller, as to whom the appellant represented. Mr Morrison said that the appellant "calls himself the Islamic Friendship Association, although he used to be a paid spokesman with the Lebanese Muslim Association": matter complained of, par 22. The caller then asked "Why do you keep giving him coverage"? Mr Morrison replied (at par 24): "Well I don't, I only talk about the bloke when he does things like he did to my staff over the weekend. He can say what he likes about me and other people can run him .... I mean this guy has a media monitoring company basically watching about any reference about him or for any reference that he believes would be advantageous towards his cause and there he is straight on the phone straight on the fax pumping out letters of complaint, he is one of the most complaining people around the place and he does nothing to try to address the actual issues, he just wants to sort of hatchet job people who once gave him the privileged position that he thinks he has." 68Although this passage is arguably ambiguous, the preferable meaning to be ascribed to it is that the media gave the appellant a "privileged position" (presumably as a spokesperson for the Lebanese Muslim Association) whereas the appellant, without trying to address actual issues, now complains about statements made about him in the media. By attacking the media, he attacks those who gave him a privileged position. 69The trial judge did not discuss the content of imputation (k), apparently because it received little attention at trial. It was referred to on the first appeal, but only in passing as not involving a bona fide answer or retort by way of vindication fairly warranted by the occasion: at [112]. 70The sting of imputation (k) may be that the appellant is no longer trusted by the media, or that he is not seen as representing the Islamic community or a reputable segment of the Islamic community. Whatever the precise nature of the imputation, it is not capable of causing further injury to the appellant's reputation. Conclusions 71It follows that the findings of substantial truth should be upheld, though in somewhat more limited terms than the findings of the trial judge warranted. Nevertheless, those findings are sufficient to demonstrate that imputations (h) and (k) do not further damage the reputation of the appellant. Accordingly, the defence of contextual truth has been maintained. 72In the result, the appeal from the judgment of the trial judge should be dismissed. The appellant must pay the respondent's costs in this Court. 73TOBIAS AJA: I have had the benefit of reading in draft the judgment of Basten JA. It is apparent that his Honour has upheld the defence of substantial truth to the relevant imputations although on a more limited basis than had the trial judge. In so finding his Honour has, in effect, reversed findings of this Court in the first appeal. However it became necessary to revisit the defence of substantial truth due to the errors made by this Court identified by the High Court. Having carefully reconsidered the issue myself, having been a member of the Court on the first appeal, I recognise the force of the reasons expressed by Basten JA in concluding that the defence was made out. I therefore endorse his Honour's reasons and the orders he proposes for the resolution of the present appeal.