The SMH site today reports that -
Muslim community identity Keysar Trad is not dangerous, disgraceful or a racist who incites people to commit violence, the NSW Court of Appeal has ruled.Tobias JA, McColl JA & Basten JA in Trad v Harbour Radio Pty Ltd [2011] NSWCA 61 allowed Trad's appeal in part, setting aside the orders made by McClellan CJ and dismiss the appeal with respect to imputations a), b), d), g) and j). They remitted the proceedings to the Common Law Division for the assessment of damages in relation to the remaining three imputations - ie c), h) and k) - and order the respondent (Harbour Radio) to pay 50% of the appellant's costs of the appeal.
Mr Trad, the president of the Islamic Friendship Association of Australia, has been cleared of those defamatory labels thrown at him by 2GB's Jason Morrison and backed by Supreme Court Justice Peter McClellan. Last week the Court of Appeal ruled there was no evidence to support them.
The court found that Justice McClellan had erred in his findings on a number of points in relation to those defamatory statements and has ordered a retrial to assess damages regarding Mr Trad's reputation.
However, the court allowed, in part, a rare defence known as "reply to attack", on some points relating to the counts. Mr Trad is considering appealing in the High Court.
The chief operating officer of 2GB, Stuart Thomas, said the court found that 2GB was only defending itself and allowed the reply-to-attack defence in five out of eight points.
The radio station was considering whether it would also appeal the remaining three points to the High Court, he said.
The Court noted that the jury in the initial trial had found that the broadcast conveyed defamatory imputations regarding the plaintiff [ie Trad] -
a. stirred up hatred against a 2GB reporter which caused him to have concerns about his own personal safety;Harbour Radio -
b. incites people to commit acts of violence;
c. incites people to have racist attitudes;
d. is a dangerous individual;
g. is a disgraceful individual
h. is widely perceived as a pest;
j. deliberately gives out misinformation about the Islamic community;
k. attacks those people who once gave him a privileged position.
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.McLellan J -
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.In considering that decision Tobias, McColl & Basten indicated that the issues for determination on appeal were -
issue a) Whether the defences of truth and comment can run in relation to the same imputations;In allowing the appeal in part the Court held that in relation to -
issue b) Whether the primary judge erred in finding imputations b), c), d) and g) were substantially true;
issue c) Whether the primary judge erred in upholding the defence of comment in relation to imputations b) - g);
issue d) Whether the primary judge erred in upholding the defence of qualified privilege; and
issue e) Whether the primary judge erred in finding there was no evidence of malice
issue a) 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 factOn to the High Court!
issue b) The primary judge erred in finding that the appellant believed that, in modern Australian society, death by stoning was the appropriate punishment for homosexuality:
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
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.
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.
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].
issue c) The primary judge erred in finding that imputations b), c), d) and g) were defensible as comment, because there was no proper factual basis for them.
issue d) The primary judge did not err in finding imputations a), b), d), g) and j) were published on an occasion of qualified privilege. They constituted a legitimate response to the public attack upon the respondent or were within the latitude of response allowed by a reply to an attack.
The primary judge erred in finding imputations c), h) and k) were published on an occasion of qualified privilege. They were not relevant to the occasion of qualified privilege
issue e) The primary judge did not err in finding that the appellant failed to establish that the respondent was actuated by malice in the publication of the matter complained of.
