Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Trad v Harbour Radio Pty Ltd [2011] NSWCA 61
• Hearing dates: 11 June 2010, 18 June 2010
• Decision date: 22 March 2011
• Before: Tobias JA, McColl JA, Basten JA

Decision

(1) Appeal allowed in part;

(2) Set aside the orders made by McClellan CJ at CL on 31 July 2009;

(3) Remit the proceedings to the Common Law Division for the assessment of damages in relation to imputations (c), (h) and (k);

(4) Dismiss the appeal with respect to imputations (a), (b), (d), (g) and (j);

(5) Order the respondent to pay 50% of the appellant's costs of the appeal;

(6) Costs of the first trial to be determined by the judge who assesses damages.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: DEFAMATION – Defences – whether truth and comment can be pleaded in respect of the same imputations; DEFAMATION – Defences – truth – whether defendant established substantial truth of imputations – Defamation Act 1974 (NSW), s 15; DEFAMATION – Defences – comment – whether defendant proved factual basis for comment – Defamation Act 1974 (NSW), s 30; DEFAMATION – Defences – qualified privilege –common law – whether imputations reply to an attack – whether imputations relevant to occasion of qualified privilege; DEFAMATION – Malice – whether evidence of malice
• Legislation Cited: Anti-Discrimination Act 1977 (NSW); Defamation Act 1974 (NSW); Defamation Act 2005 (NSW); Disability Discrimination Act 1992 (Cth); Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth)
• Cases Cited: Adam v Ward [1917] AC 309; Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245; Clarke v Norton [1919] VLR 494; Fraser v Holmes [2009] NSWCA 36; Griffiths Australian Broadcasting Commission [2010] NSWCA 257; Jones v Skelton [1963] 1 WLR 1365; Lloyd v David Syme & Co Ltd [1986] AC 350; (1985) 3 NSWLR 728; Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503; New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340; Penton v Calwell [1945] HCA 51; (1945) 70 CLR 219; Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174; Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; Readers Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500; Sims v Wran [1984] 1 NSWLR 317; Spiller v Joseph [2010] UKSC 53; (2010) 3 WLR 1791; Sutherland v Stopes [1925] AC 47; Telnikoff v Matusevitch [1992] 2 AC 343; Toogood v Spyring [1834] 149 ER 1044
• Texts Cited: P Milmo and WVH Rogers, Gatley on Libel and Slander, 11th ed (2008) Sweet & Maxwell; Halsbury's Laws of England, 4th ed., vol. 28; Macquarie Dictionary, 5th ed, (2009)
• Category: Principal judgment
• Parties: 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

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].

In relation to issue (c)

7 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: at [91], [93], [98], [99] - [102].

In relation to issue (d)

8 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: at [112].

9 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: at [112] - [113].

Fraser v Holmes [2009] NSWCA 36 applied

In relation to issue (e)

10 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: at [116] - [118].

ORDERS

(1) Appeal allowed in part;

(2) Set aside the orders made by McClellan CJ at CL on 31 July 2009;

(3) Remit the proceedings to the Common Law Division to assess damages in relation to imputations (c), (h) and (k);

(4) Dismiss the appeal with respect to imputations (a), (b), (d), (g) and (j);

(5) Order the respondent to pay 50% of the appellant's costs of the appeal;

(6) Costs of the first trial to be determined by the judge who assesses damages.

**********

Judgment

1 THE COURT: The appellant, Keysar Trad, was defamed by a radio programme broadcast by Radio Station 2GB that went to air at approximately 10.05am on Monday 19 December 2005. The radio host at the time was Mr James Morrison. The broadcast lasted approximately 11 minutes with at least one commercial break during that period. It was said by McClellan CJ at CL, the primary judge, to comprise a monologue by Mr Morrison interspersed with a short excerpt from an audio recording of a public rally which had occurred the previous day and during which the appellant had made a speech: Trad v Harbour Radio Pty Ltd [2009] NSWSC 750 (at [1]). It also contained talkback calls comprising a discussion between Mr Morrison and a number of callers.

2 The appellant brought proceedings seeking to recover damages in respect of the allegedly defamatory broadcast. As the programme was broadcast before 1 January 2006, the proceedings were governed by the Defamation Act 1974 (NSW) ("the Act"): Defamation Act 2005 (NSW) Sch 4, cl 2(3). At the trial pursuant to s 7A of the Act 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."

3 The respondent defended imputations (a)-(k) on the basis that each was published on an occasion of qualified privilege at common law, the occasion said to have been warranted as a response to what was said to be an attack on the respondent by the appellant in his speech at the public rally. A defence under s 22 of the Act was not pressed.

4 The respondent also 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 Act. Imputations (b), (c), (d), (h) and (j) were additionally sought to be justified on the basis that each was a matter of substantial truth: s 15 of the Act. Finally, the respondent pleaded that any imputation found to be substantially true was published contextually to other imputations not so found, by reason of which the latter did not further injure the appellant's reputation: s 16 of the Act .

5 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 (at [124]) 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, a finding which, although expressed in relation to s 15 of the Act, his Honour clearly regarded as also applicable to the defence of comment. He upheld the defence of contextual truth (at [129]), 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.

6 There is no challenge to his Honour's finding of public interest.

7 Although his findings on truth and contextual truth were sufficient to establish the respondent's defence to the claim, the primary judge indicated his conclusions in relation to the remaining defences.

8 The primary judge held that the matter complained of was published on an occasion of qualified privilege as a response to the appellant's attack on the radio station. His Honour rejected a claim by the appellant that the defence was defeated by the malice of the respondent (at [147]). He also found that imputations (b), (c), (d) and (g) were defensible as comment (at [154]), being expressions of opinion based upon the appellant's attack on the respondent at the rally. We consider the implications of this approach further below: at [38] - [41].

9 Accordingly, his Honour dismissed the appellant's claim with costs: primary judgment at [157].

10 It is from that decision that the appellant appeals to this Court. The case raises important issues in relation to the limits on freedom of expression.

The matter complained of

11 The matter complained of was as follows:

"Let me tell you about the peace rally that happened on Sunday. Peace rally so it was called. You gotta be kidding!

There is a well known apologist for the Islamic community spewing hatred and bile at anyone who did not agree with (his) philosophies and principles including this radio station and a number of the broadcaster here including myself. And the vitriol towards 2GB at the moment shows no bounds with some of these people. Each announcer on this station has his or her own opinion and that is his own opinion, there is no station agenda here, it is called free speech, we operate it. Same thing, if you want to ring up and be a part of it, you can, its easy, it is free speech.

Then there was Keysar Trad spewing his bile towards the crowd and in particular to one of our reporters, I'll share that story with you in a moment. Once you hear this bloke, we actually have him on tape talking and stirring up the crowd. Now Keysar believes in free speech and freedom of the media, but it seems only when it is in his directions (sic). More to say on that shortly.

...

I might talk to you about this so called peace rally that was held in the city yesterday. Peace rally. And our good old friend Keysar Trad, the peacemaker. Well wait until you hear what we've got on Keysar Trad this morning, how you might have seen the TV pictures on this last night, I wasn't there, I had a reporter there, and that's part of the reason I'm talking about this right now. This peace rally was a nice idea, but unfortunately, like these things, it was hijacked by the radicals. When watch things slowly and I did (sic), I pulled the video tape out and slow mo'ed through it and had a look at the banners that were being held up as this march went through the city, many thousands of people, banners for the Communist Party, the anti-detention centre mob, the refugee advocates, the national students union, I even saw someone holding up a banner against the federal government's industrial relations laws. Remember this was an anti-racism peace rally, so much for a nice cross section of the community here, this was a multipurpose rally in the end and another case of loonies trying to hijack the situation.

Now mid-afternoon yesterday, I got a phone call from one of our reporters that we sent out to cover this, we had four people out in Sydney yesterday covering the city because we didn't know really what to expect, one of the things we went to cover was the peace rally because that's what we thought it was going to be. However, let me tell you that the phone call that I got from my report Chris Glasscock, who is a young guy in his 20s and a fairly tough young guy in his twenties let me tell you that. The phone call I got from him was one of fear because halfway through this peace rally things turned very hostile and hostile against his radio station but also towards Chris himself. I'm gonna play this in just a moment, but I want you to have a listen to the words of Keysar Trad, Keysar Trad who now days represents nobody from the Islamic community apart from his own views, he doesn't have the backing of the Lebanese Muslim Society, in fact I am told quite reliably that Keysar Trad is somewhat loathed.

But Chris Glasscock our reporter down there called to say that he had significant concerns about his own personal safety because Keysar had turned his little moment of peace into a hate 2GB rally. Now Keysar blames this radio station for the violence over the last week, he's not hidden from that he said it everywhere, on television, he accused me of it, he accused everyone on this station, not the blokes who have been caught with tins of petrol to make the bombs and not the guys who smashed hundreds of windscreens or bashed and stabbed each other or fired shots into churches and school yards, but its 2GB's fault. And it didn't take him long at this rally to point the figure against at us. But I gotta say it wasn't just at us, he started to point out our reporter in the crowd. Now Chris was there and you see it every night on television our reporters with little 2GB microphones in their hands. They have to stand there right in the thick of it, often, to record the audio so we can bring it back and play it on the radio station and there was Keysar point out the 2GB reporter and pointing out the microphone in the crowd and highlighting that it's these people, pointing at 2GB, these people stirring up the hatred.

Now the audio on this is not brilliant because Chris had to retreat, so we only have, you know, long shot audio recording, but I think you'll get an idea, have a listen closely to this:

'[inaudible] ... Australian against Australian ... [inaudible] ... human being against human beings ... [inaudible] ...'

(Interjector from the crowd); 'What about 2GB, what about 2GB?'

(applause from the crowd)

'there is a great deal of shame, a great deal of shame in tabloid journalism and one talk back radio station they've been nothing, they've been nothing other than the mouthpiece of the Howard government over the last few years ... [inaudible]'

(applause from the crowd)

Now that's Keysar Trad at a peace rally, peace rally. Now I'm sorry about the quality of that, but as I said Chris our reporter there had to pull back because it wasn't safe for him to be standing at the front while all this was going on.

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 every quite done that, like he did. In fact I don't think anyone here has ever done anything quite like that. It actually took, I'm told very reliably, one of the organizers from the rally to wind him and a Labor MP whose name escapes me but I did see her on television last night, actually had to lean forward to Keysar and tell him to back off, because Chris, she said, was just doing his job.

Now as Chris pulled out of that crowd, he copped it from plenty of people there, remember we got the loony left there, the Communist Party, the anti-detention mob, the refugee advocates, the students union, the whole lot, they're all there. Another reporter from another radio station told me last night he saw someone spit at Chris Glasscock as he walked away, now I haven't asked Chris about that yet, but someone else told me it happened so I'll believe it to be true. Remember this was a peace rally.

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 you[r] 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.

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. Now Keysar, you can say what you like about me or about Alan Jones or about Brian Wilshire because we're fair game and yes sometimes we deserve it. But don't take it out on a young reporter on his own in a crowd of people that you're whipping up. You are gutless, you're just trouble mate and I think a lot of people agree with my view and they're not just my people, let me put it that way mate. Your lot that you claim to represent, they think exactly the same Keysar, you're history mate, see you later.

...

Jason Morrison: G'day.

Caller: G'day Jason. All I can say is good on you for fronting this Keysar Trad, it is about time somebody talked to that mealy mouthed person, he is supposed to represent ... are ya there?

Jason Morrison: Yeah mate, I'm with you.

Caller: Supposed to represent ... How do we know he represents these people?

Jason Morrison: Well look, he doesn't represent. He calls himself the Islamic Friendship Association. Ahm, he formed the organisation because he used to be with the Lebanese Muslim Association as a paid spokesman and they didn't want him anymore, he had a falling out, because I think because Keysar became too interested in his own personality than he did about the cause that he was there for and that still to me seems the same. He doesn't really represent anybody. I'm you know, I do not have any information and cannot get it from anywhere about people who are part of his organisation, he smells to me a bit like the pedestrian council.

Caller: Well, don't quote me on that one, I have a four wheel drive. Um, well look why do we keep giving him coverage, that is the question that I ask.

Jason Morrison: Well I don't, I only talk about the bloke when he does thinks 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 Today Tonight did a hatchet job or tried to on us the other day, and that was a back, that basically backfired because it achieved nothing because, I mean he cannot cite specific examples where people like me, don't, he goes, and let me tell you, 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.

Caller: Well who funds him, that's the question.

Jason Morrison: Ohh I don't know, I don't know.

Caller: I survived, as a particularly, is this what they call oxymoron, the way he carries on and its called the friendship association.

Jason Morrison: Heh heh heh it's a bit isn't it, thanks for your call and happy Christmas. 131873. Josh, G'day.

Caller Josh: Ah good mate. How are you?

Jason Morrison: Mate, good thank you, how you going?

Caller: Yeah I'm surprised with this Keysar Trad, he wants to um, keep, keep Australians not talking, like if they could silence you guys, well or silence anyone else who is talking about the way things are really happening out there. I was surprised. I live in the Sutherland Shire and in the Leader there was an article in the paper and a Muslim Cleric or whatever he was, he came out there and, he looked like he stepped out of the cage, ten years ago, but anyway ...

Jason Morrison: Well han[g], hang on, wo wo wo that was unnecessary, that was totally unnecessary Josh.

Caller: Well what about what he said. He said, to the Christian people, do unto others as others would do unto you.

Jason Morrison: Yeh.

Caller: And to the Muslim community he said just because these people hate you don't force them to um make you do anything bad. Well why would he say that? Why wouldn't he just say do unto others to both communities?

Jason Morrison: Yeh that's right that's right, and Josh the trouble is, and you've got a good point there this is where these people get you ..."

The appellant speaks at a rally

12 The appellant attended a rally in Hyde Park in Sydney in mid-December 2005. The rally was in response to the major public disturbance at Cronulla Beach, which has come to be known as the " Cronulla Riots ". Both the riot and the public rally attracted some 5,000 people. Although the riot was not the subject of particular evidence or analysis in the proceedings, it was an event of considerable public significance, giving rise to much disquiet, not merely because of the numbers involved, but because it was perceived by many people, in the word of the primary judge (at [6]), as " a confrontation between adherents to the Muslim faith and persons of Caucasian heritage ".

13 The cause of the riot was a matter of general public interest and importance. In the course of his speech at the rally, the appellant, with considerable support from the crowd, placed at least part of the blame on the respondent. Although he did not expressly name Radio 2GB, he referred to " tabloid journalism and one talk back radio station ", to which the crowd responded " 2GB ", a reference he immediately accepted by continuing, " this station yes ...".

14 Relevant extracts from a transcript of the appellant's speech, together with comments made by persons in the crowd, taken from a video of the occasion, read as follows:

"Trad: I pay my respects to the Gadigal people.

The brave people who have not met the violence of colonialism with more violence, that have been peacefully resisting for the last 200 years.

What I see today is most heartening for me.

I never lost my faith in the great people of this nation and if a handful of students can muster so many thousands of true Australians here today, then this is a poke in the eye of those racist rednecks in tabloid journalism that for a whole week could only must 5000 people filled with hatred.

For almost ten years ago, almost ten years, the ugliest government in the history of this nation has been attacking everything they hold sacred.

They have fuelled hatred with patriotic fervour. Through nationalistic racism and made so many people forget their common humanity.

Their common humanity, our common humanity transcends ethnic differences, it transcends religious differences, it is what makes us a step above the animal kingdom. But this racist government, Federal government, is taking us back to the level of being animals attacking each other.

And I have to credit to a neighbour Asian nation, to a leader who said to John Howard in his own diplomatic language 'Stop this ethnic scapegoating'.

Stop this ethnic scapegoating that has been building up for nearly ten years now and this signal to his lackey, his supporters, in the worst aspects of tabloid journalism, they seem to be regularly giving them the green light to attack communities, to attack minorities and to keep covering up for his inefficiency and mismanagement through blaming everything on minorities in this country.

Crowd:

What about 2GB?

What about 2GB?

What about Alan Jones and 2GB?

Shame

Shame

Trad: There is a great deal of shame, a great deal of shame in tabloid journalism and one talk back radio station, seems to be nothing, seems to be nothing other than the mouthpiece of the Howard government over the last few years.

Crowd:

2GB

Trad: This station yes it is winning the ratings in its small niche in the Sydney market, it is winning the ratings, it is whipping up fears. There is an old, there is an old belief that fear sells newspapers and gets people into their TV sets and into their radios. But we have to make sure that we change that belief. And we change that belief, I'll tell you how we can change that belief, every time they whip up hatred, we show them the opposite. We show them that they are bringing us closer together and what I would like us to do, I would like us to do now, is for each lady to look at your sister next to you and for each gentleman to look at your brother next to you and given them an embrace for two seconds, just now embrace the person next to you for two seconds.

This embrace, that tells us racist criminals, those criminals who have turned Australian against Australian, have turned human being against human being, their racism and their hatred is going to backfire on them. And these people play dirty, they play very very dirty, and I stand here as a Muslim, as a Muslim, you can look at me as the face of many Muslims in Australia, of Musli men, of Muslim women, of Muslim children, all of whom are suffering as a result of the racist actions of predominantly one radio station, predominantly one radio station that is

Crowd:

2GB, 2GB

Arrest 2GB

Arrest Alan Jones

Arrest Alan Jones

Trad: Why isn't this government

Crowd:

To Jonesy

Trad: Applying, applying the sedition provisions against that radio station, when they consider

Obviously, obviously they are not serious. The sedition provisions are not meant for people who support the government's racism...."

The nature of the litigation

15 Whether, and if so to what extent, there was any truth in the accusation the appellant levelled at the respondent at the rally was not the subject of the litigation. Rather, its subject was the broadcast the respondent published attacking the appellant and giving rise to the defamatory imputations. The broadcaster's response was largely an attack on the character of the appellant. It defended the most damaging imputations on the basis that they were substantially true - not on the basis of events surrounding the rally, but on the basis of other public conduct of the appellant and statements on unrelated (or marginally related) issues over a number of years.

16 The material relied on by the respondent related, first, to the appellant's statements about various public comments made by Sheik Taj el-Din al-Hilali ("Sheikh Hilali"), the Mufti of Australia and head of the Muslim religion in Australia at the relevant times (see below at [23]). Secondly, it dealt with publications by, or other comments of, the appellant in response to or by way of commentary on the statements of others (see below at [29]).

17 On the appellant's side it can be said that principles of free speech should allow him to express views on a matter of public importance, without fear of having his reputation besmirched by irrelevant attacks on his character while, from the point of view of the respondent, it should be entitled to resist paying compensation for injury to reputation by demonstrating that the injurious imputations were true. This in turn gave rise to a dispute as to how the Court should assess the conduct and statements of the appellant on a range of issues, some of which may have had a degree of support within the Muslim - but not the broader Australian - community. That, in turn, was said by the appellant to give rise to an issue as to whether the primary judge erred in failing to take account of minority religious views in upholding the substantial truth of allegations, for example, that the appellant was a dangerous and disgraceful individual (imputations (d) and (g)).

The primary judgment

18 The structure of the primary judgment was as follows. Having dealt with the background facts, the primary judge first considered the approach to imputation (g) (at [13]), that " the [appellant] is a disgraceful individual ", describing it as raising questions of some complexity. His Honour made findings about the appellant's credit and then considered each of the publications on which the respondent relied in its justification defence and the appellant's evidence about that publication. At the end of some of these sections of the primary judgment, his Honour made a finding as to what the events discussed revealed about the appellant's character (see for example primary judgment [42], [58]) or what the Australian community's attitude would be to the events discussed (see, for example, primary judgment [51], [67], [69], [74], [82], [97]). Having undertaken this analysis, his Honour made findings on the issue of substantial truth with respect to each imputation, and then considered the issues of public interest, contextual truth, qualified privilege and comment. His Honour did not consider the issue of damages (at [54]) because a number of issues he had determined in favour of the respondent might be the subject of challenges on appeal which, if upheld could affect the quantum of damages.

Approach to determining the truth of the imputations

19 The primary judge assessed (at [12] and [13]) the defence of substantial truth by reference to a distinction between a case which raised " relatively uncomplicated issues of primary fact " and one which raised " questions of some complexity ". In relation to the former his Honour held (at [12]):

" ... Where a defendant pleads that a plaintiff has committed a crime the court will be required to determine whether the alleged event occurred. Where the imputation consists of conduct which can be measured against an identifiable social or professional standard, for example, whether the plaintiff was negligent, the court will apply its understanding of the appropriate standard to resolve that issue."

20 As we have said, the primary judge described (at [13]) imputation (g), that " the [appellant] is a disgraceful individual ", as raising questions of some complexity. He concluded (at [14]) that the appellant's conduct " must be assessed having regard to general community standards which exist in the Australian community ". He said it would " be immediately obvious that conduct which would lead the ordinary person to describe an individual as 'disgraceful' at some point in history may not make that person disgraceful at some other time in history or in a different society ." His Honour described the question (at [15]) whether a plaintiff is a disgraceful person as raising " issues which are analogous to those that arise when the question is whether a particular imputation is defamatory ", referring to Readers Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 where the Court emphasised the " defamatory nature of an imputation is ascertained by reference to general community standards, not by reference to sectional attitudes ": primary judgment at [16]. He accepted (at [17]) the respondent's submission that the principles governing the question of whether an imputation is defamatory should not differ from those governing the analogous question of whether an imputation which required an evaluation of the qualities of a person was true.

21 His Honour also accepted (at [20]) the respondent's submission that even if a section of the community held views consistent with those expressed by the appellant, the fact that the publication of those views was a breach of legislation such as the Anti-Discrimination Act 1977 (NSW), the Sex Discrimination Act 1984 (Cth), the Racial Discrimination Act 1975 (Cth) and the Disability Discrimination Act 1992 (Cth) could inform a decision as to whether the appellant was a disgraceful person. As his Honour framed the issue (at [20]):

"The question is not whether a section, even a substantial section of the community shares the [appellant's] views. Rather it is whether, taken as a whole, the [appellant's]expression of his views and his other acts would cause right thinking members of the community, applying general community standards, to conclude that the [appellant]is a disgraceful person."

Credit

22 The primary judge found (at [23]) that the appellant attempted to frame his responses in a manner which he believed would suit his interests in the litigation at times modifying his true belief, that some of his answers were not truthful and that he was not a reliable witness.

The appellant and Sheikh Hilali

23 The primary judge found that Sheikh Hilali had, in 2001, 2004 and 2006, made public statements that caused significant controversy in Australia. The appellant, an acknowledged supporter of Sheikh Hilali, made numerous public comments about the Sheikh's utterances.

24 In or about October 2006 Sheikh Hilali made a public speech at the Lakemba Mosque in which he made statements to the effect that the responsibility for rape lies with the female victims, using the analogy that those women who dressed scantily invited sexual attention, in the same way that uncovered meat attracts cats. The primary judge found (at [35]) that the appellant's attempt to explain the speech as an attempt to discourage Islamic people from having sex outside marriage was disingenuous and (at [37]) that in his evidence the appellant attempted, in a clumsy way, to defend Sheikh Hilali in a manner which was at odds with the fact that many leaders in the general community, as well as members of the Islamic community, had had no hesitation in condemning the speech. His Honour then said (at [42]):

"The [appellant] did not condemn the speech but consistently defended it and attempted to portray the speech as a responsible moral lesson. The only appropriate response to Sheikh Hilali's remarks by a person holding values acceptable to the general Australian community was to condemn the speech. The [appellant] did not take this course."

25 In February 2004 Sheikh Hilali made a speech at the Sidon Mosque in Lebanon in which he was recorded as saying that:

"The true man is the boy who opposes Israeli tanks with strength and faith. The boy who, despite his mother's objections, goes out to war to become a martyr like his elder brother."

26 The appellant complained about the translation of the Sheikh's speech, but his Honour found (at [56]) that the appellant was endorsing at least that version of the speech that, inter alia, referred to " the blessings of the 11 th of September ". The primary judge stated (at [57]) that the speech both condoned and effectively encouraged the use of children as martyrs in the cause of Islam. He found that "[t]he use of children in this way and any encouragement of such actions would be abhorrent to the general Australian community ." He was satisfied (at [57]) that the appellant never condemned the remarks. Furthermore, in October 2004 the appellant made comments on air that his Honour found (at [58]) could only be understood as a general commendation of the views that Sheikh Hilali held.

27 The primary judge referred to statements published in the Brisbane Courier Mail newspaper on 16 March 2002 relating to an address by Sheikh Hilali to a meeting of Islamic scholars in Beirut in which he had referred to suicide bombers and, in particular, child suicide bombers. His Honour found (at [66]) that the appellant was unable to point to any incident where he publicly condemned suicide bombers, but had been quoted as saying " they call them martyrdom operations, they don't call them suicide bombers. " He found (at [67]) that the statements by the appellant should be understood as an endorsement of the Sheikh's views, and when understood in conjunction with the appellant's implicit endorsement of the Sheikh's Sidon Mosque sermon concerned with child martyrs, that it was apparent that the appellant had publicly expressed views endorsing the tactical use of children as suicide bombers that would be utterly repugnant to the Australian community.

28 The primary judge then referred (at [70]) to an article written by the appellant and published in Nida'ul Islam magazine in 1996-1997 referring to Hindus as " cow worshippers " and Australia's English ancestors as " criminal dregs of white society [who] colonised this country " and the " descendants of these criminal dregs [who] tell use that they are better than us ." Separately, in January 2007, Sheikh Hilali had made remarks in an interview referring to Anglo-Saxons arriving in Australia in shackles whereas Islamic members of the Australian community had paid for their passports from their own pockets and had more of a right to Australia than Australia's English ancestors (at [72]). His Honour found (at [74]) that the appellant in speaking to a journalist about the Sheikh's interview, had not condemned the Sheikh's statements and had effectively sought to defend them. He was satisfied that the appellant continued to believe that Australians of Anglo-Irish descent were unworthy descendents of " criminal dregs ". His Honour concluded that the views expressed by the appellant with respect to Hindus and English-Irish Australians were offensive to the general Australian community.

The appellant's other publications

29 In or about 1999 the appellant wrote a document relating to homosexual persons. His Honour found (at [89]) that the article contained many remarks that denounced homosexuality as unnatural. The appellant also made derogatory remarks about lesbianism and stated in the article that " homosexuality is analogous to cancer ". Furthermore, in January 2007 Sheikh Hilali had made derogatory remarks about homosexuals in an interview which the appellant had failed to condemn.

30 The primary judge found that in 1999 the appellant was of the view that homosexuality was a crime and that the appropriate penalty was stoning to death. Although the appellant attempted to distance himself from those views when he gave evidence, the primary judge (at [91]) was satisfied that he still held them. His Honour accepted a submission (at [94]) on behalf of the respondent that the appellant had given dishonest evidence as to the meaning of his 1999 article. He rejected the appellant's evidence that what he said then was no longer his view. He concluded (at [97]) that the views expressed by the appellant in 1999 were generally consistent with the views he held at the present time, which would be rejected by right-thinking members of the Australian community.

31 The appellant wrote an article published in the Sydney Daily Telegraph newspaper in March 2005 in which he asserted that Australia should be more concerned by the United States than it is by radical Islam. The article contained references to the United States using weapons of mass destruction in the "war on terror" which the primary judge found were incorrect. His Honour found (at [61]) that the appellant was effectively suggesting that the United States presented a greater threat than radical Islam to the Australian people - a stance which, in his Honour's view, would be entirely repugnant to the overwhelming majority of people in the Australian community.

32 In about September 2002 the appellant told a journalist that he did not want to believe that Muslims were behind the events of 11 September 2001. These remarks were published in the Weekend Australian newspaper. When the appellant was asked about the remarks, he said that he had " no idea " who was responsible for the attacks in New York. He did not know if the perpetrators had been radical Islam militants or not.

33 His Honour found (at [64]) that the appellant's suggestion that the September 11 terrorist act was not perpetrated by adherents to Islam would not be accepted by Australians, whatever their ethnic origins or religious views.

34 In an article in the Bulletin magazine the appellant told a journalist that " Hezbollah should be taken off Australia's list of terrorist organisations ". The article reported that the appellant also accused the United States of engaging in acts of terrorism. The appellant asserted in evidence that he was referring only to the removal of the political wing of Hezbollah from the list of prescribed organisations. The primary judge (at [69]) rejected this suggestion and held that a call to de-list Hezbollah from the list of terrorist organisations in Australia would be entirely unacceptable to most people in the Australian community.

35 Finally, the primary judge (at [75] - [82]) referred to the appellant's website and to links on it in November 2001 to a number of websites including one called Radio Islam. All of the websites which were listed on the appellant's website were derogatory of Jewish people. One of those links was to " Nazism; Mein Kampf ". Following a complaint from a journalist the appellant removed the link to the Radio Islam site. A printout of the Radio Islam website tendered in evidence revealed it to be a vehicle for significantly anti-Semitic views.

36 The primary judge held (at [77]) that the appellant was both aware of the link and believed it appropriate to be incorporated into his website. He rejected the appellant's disclaimer. The primary judge found that the appellant at least authorised a link to a site that not only expressed anti-Semitic views but explicitly expressed sympathy for the views of Adolf Hitler and the Nazi movement.

37 Furthermore, when interviewed by a journalist from the Courier Mail newspaper the appellant stated words to the effect that " there are many Jews who question how many died in the Holocaust " (see primary judgment at [81]). The primary judge found (at [82]) that the appellant's views must be understood having regard to his apparent sympathies for the views of Adolf Hitler and were views that were unacceptable to right-thinking members of the Australian community.

The primary judge's findings with respect to the respondent's defences

38 The primary judge dealt first with the defences of truth and contextual truth. Having upheld the defence of substantial truth (and public interest) to imputations (b), (c), (d) and (g), his Honour found (at [129]) that these imputations together had the effect that the publication of imputations (a), (h), (j) and (k) did not occasion further injury. His Honour concluded (at [131]) that it was " strictly unnecessary to consider the further matters pleaded in the defence ", but stated that he would " discuss them and indicate [his] conclusions in relation to them ": at [131]. This statement gives rise to three difficulties. First, to the extent that the appeal in respect of the defences of substantial truth and reliance upon contextual imputations is upheld, it leaves in some doubt whether his Honour's conclusions in relation to the other defences provided alternative bases on which the respondent could rely, or were merely " indications " as to how the primary judge might have proceeded had it been necessary to rule upon those defences. On balance, we think it is correct to accept, as the appellant assumed, that each defence constituted an alternative basis for rejecting the appellant's claim and that to succeed on appeal the appellant needed to demonstrate error with respect to qualified privilege (and comment in relation to (b) - (g)), even if error was shown with respect to truth.

39 Secondly, there was no discussion as to whether the defence of substantial truth was indeed available in respect of all of the imputations and, if so, whether (or when) defences of both truth and comment can apply in respect of a single imputation.

40 Thirdly, if, as suggested below, there is a difficulty in respect of the way in which his Honour dealt with the defence of substantial truth, is it necessary and appropriate for this Court to revisit the relevant findings, given that they depended in part upon an assessment of the appellant as a witness -as to which the primary judge reached a conclusion adverse to the appellant?

41 It is convenient to address first the availability of the defences of truth and comment respectively. The conclusion, set out below, is that whilst a defence of truth is available in respect of statements of fact and statements of opinion, a defence of comment is not available in respect of an imputation properly characterised as a statement of fact.

Whether "truth" and "comment" can be concurrent defences

(a) Truth

42 The defence of substantial truth arose under s 15 of the Act which was in the following terms:

" 15 Truth generally

(1) Notwithstanding section 11, the truth of any imputation complained of is not a defence as to that imputation except as mentioned in this section.

(2) It is a defence as to any imputation complained of that:

(a) the imputation is a matter of substantial truth, and

(b) the imputation either relates to a matter of public interest or is published under qualified privilege."

43 The opening words of s 15(1) indicated that the section was an exception to the general rule that the provision of a defence under the Act did not diminish a general law defence: see s 11. Nevertheless, the phrase " substantial truth " not being defined, it is necessary to rely upon general law principles as to the meaning of that phrase.

44 It is also important that the defence under s 15 was identified as a defence to an imputation, language consistent with the statutory provision of a cause of action in respect of any defamatory imputation: s 9.

(b) Comment

45 The defence of " fair comment on a matter of public interest " was available only in accordance with Division 7 of the Act: see s 29. The defence under Division 7 was available as to any comment but only if:

"(a) the comment is based on proper material for comment, or

(b) the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment."

46 Subsection 30(1) is subject to sub-s (2), which provided:

"(2) A statement of fact which is a matter of substantial truth is proper material for comment for the purposes of this section, whether or not the statement relates to a matter of public interest."

47 The extent to which this may be said to qualify the general law requirements relating to facts underlying comment need not be pursued, as it was assumed in the present circumstances that the appropriate factual basis of the comment had to be a matter of substantial truth.

(c) The significance of the distinction between fact and comment

48 Importantly for present purposes, there is an apparent anomaly in requiring that comment be based (relevantly) on a statement of fact and the proposition that the same statement may be defended as both fact and comment.

49 The need to make a distinction between comment and fact is affirmed by P Milmo and WVH Rogers, Gatley on Libel and Slander 11 th ed (2008) Sweet & Maxwell (" Gatley ") at par 12.6. The authors further stated, quoting the language of Cussen J in Clarke v Norton [1910] VLR 494 (at 499):

"Though 'comment' is often equated with 'opinion' this is an over-simplification. More accurately it has been said that the sense of comment is 'something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.'"

50 In Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 (at 192), Samuels JA stated:

"It is beyond doubt that a defendant who seeks to justify must answer the imputations specifically pleaded, which are themselves inferences of fact from the matter complained of. But a defence of comment must, I would have thought, go to the matter itself and not to inference, from the matter."

51 The reason for that approach was that conventionally whether a matter was comment or fact might well depend upon how it was expressed in the publication. Further, where the jury decided on the imputations and the defences, it might have seemed awkward to require them to undertake related exercises on different bases: cf Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 (at [85]) (Gummow, Hayne and Heydon JJ). The distinction between fact and comment (and the requirement to choose) was applied in relation to the Act in Lloyd v David Syme & Co Ltd [1986] AC 350; (1985) 3 NSWLR 728 (at 733). That case also rejected (albeit without specific reference) Samuels JA's statement from Petritsis set out above and held that the comment to be defended must be found in the plaintiff's pleaded imputation, rather than in the publication itself: (at 735 - 6); see now Manock (at [83]). Despite Lloyd , it has since been held that it remains appropriate to consider the published material to determine whether " that matter made an imputation which was comment ": New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 (at 344 - 345) (Priestley JA); Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 (at 469) (Clarke JA).

52 A similar debate has occurred under the general law. Because remarks may constitute statements of fact or comment, depending on their context, it has been necessary to determine the extent to which that question can be decided by reference to context. There is, however, no debate about the underlying exercise, namely, that the distinction must be made. If the judge considers that the material complained of is capable of only one categorisation, the relevant defence must be left to the jury on that basis. However, if the material is capable of more than one categorisation, the exercise of determining their categorisation must be left to the jury: see Sims v Wran [1984] 1 NSWLR 317 (at 323). Thus, in Telnikoff v Matusevitch [1992] 2 AC 343 (at 351), Lord Keith of Kinkel quoted with approval the following passage from Halsbury's Laws of England , 4 th ed, vol 28, at 114, par 228:

"The question whether all or some of the words complained of are statements of fact or comments is a question of construction for the judge. If, in his opinion, there is no reasonable doubt, he must direct the jury accordingly; but if, in his view, there is reasonable doubt as to whether the words are statements of fact or expressions of opinion he must leave it to the jury to decide."

53 Lord Templeman in Telnikoff commenced his speech with the following remarks (at 355 - 356):

"My Lords, the plaintiff alleges that certain of the contents of the letter by the defendant ... were defamatory.... If the contents of the letter were fair comment, then the plaintiff cannot complain notwithstanding that they were defamatory. If the contents of the letter included defamatory statements of fact, however, then the plaintiff will succeed in his action for defamation unless the statements of fact set out in the letter were true. If the contents

'were a statement of facts, and the facts were untrue, a plea of fair comment would not avail and it is for the jury in a proper case to determine what is comment and what is fact, but a prerequisite to their right is that the words are capable of being a statement of a fact or facts:' per Lord Porter in Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 461.' "

54 Similar statements may be found in other authorities: see, eg, Jones v Skelton [1963] 1 WLR 1362 (at 1378), a judgment of the Privy Council on appeal from the Full Court of this Court, delivered by Lord Morris of Borth-Y-Gest. On the other hand, there are statements of high authority under the general law, supporting the availability of a defence of justification in relation to a comment or an opinion. Thus, as explained by Gatley (at par 11.7):

"If the libel contains defamatory statements both of fact and of opinion, the defendant, under a plea of justification, must prove that the statements of fact are true and that the statements of opinion are correct."

55 In support of that proposition, Gatley cites passages from the opinions of Viscount Finlay and Lord Shaw in Sutherland v Stopes [1925] AC 47 (at 62 - 63 and 75) respectively:

"[A] plea of justification means that the libel is true not only in its allegations of fact, but also in any comments made... [T]he defendant has to prove not only that the facts are truly stated but also that any comments upon them are correct."

"[I]n a plea of justification the defence that a matter of opinion or inference is true is not that the defendant truly made the inference, or truly held that opinion, but is that the opinion and inference are both of them true."

56 Because the elements of the defences differ, a finding that the imputation involves a comment, which is shown to be correct, would be sufficient by way of a defence of justification, but would not necessarily entail success on a defence of comment under the Act. For example, a defendant who did not hold that the opinion expressed could not rely upon the defence of comment, whereas the state of mind of the defendant is irrelevant to the defence of justification.

57 Thus, the characterisation of the imputation is important because, although both defences may be available if the imputation is a comment, the defence of comment will not be available in relation to a statement capable only of being a statement of fact: Griffith v Australian Broadcasting Commission [2010] NSWCA 257 (at [54]), and see generally the discussion in the judgment of Lord Phillips in Spiller v Joseph [2010] UKSC 53; [2010] 3 WLR 1791. This point of distinction is not reflected in the reasons of the primary judge.

(d) The appellant's challenge to characterisation

58 In the present case the particulars of the defence of comment relied on by the respondent in its amended defence were somewhat imprecise. Paragraph 9 of the defence was pleaded generally in relation to " the imputations ". Under the heading "Particulars, D Comment", the following appeared:

"The comment was based upon:

(a) the facts stated and/or referred to in the matter complained of, or upon matters of notoriety;

(b) the [appellant's] attacks upon the [respondent] at a rally on 18 December 2005 and made to various media organisations in the period leading up to 18 December 2005."

59 At some stage during the trial, the comment defence was apparently limited to imputations (b), (c), (d) and (g). His Honour considered the respondent's submissions that each was an expression of opinion, and looked at the words in the context of the respondent's publication. No issue was taken with that approach. Having stated the respondent's submission, his Honour noted (at [152]) that the respondent further said that the comments " were based upon the [appellant's] attack on 2GB at the rally ." He then referred to the reliance placed by the respondent on the terms of s 30(3)(b), which permitted a comment to be based on matters of fact which had only partly been established, so long as the comment " represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment ." (It will be necessary to refer to the material shortly.) His Honour's conclusion was briefly stated at [154]:

"I am satisfied that the [respondent's] submission should be accepted. However, I do so in relation to in particular imputations (b) and (c) with some hesitation. Although the [respondent] filed detailed written submissions the [appellant] provided me with little assistance on these issues. The fact that Mr Morrison was of the view that the reporter had been required to withdraw when this was not the case, and Mr Morrison put his belief to air raises a difficult issue. However, I have ultimately decided that the [respondent] may rely on s 30(3)(b) to sustain the defence notwithstanding the inaccuracy."

60 The source of hesitancy is not entirely clear, but may have related to whether imputations (b) and (c) were indeed opinions, as opposed to statements of fact. If that were so, there was an implicit finding that each of the four imputations to which comment was pleaded was indeed a comment in the sense identified by Cussen J. That finding may be accepted as having been made for present purposes, although it appears to be inconsistent with the alternative view which allowed his Honour to uphold the defence of substantial truth in respect of the same four imputations, as statements of fact.

61 An alternative reading of his Honour's expression of hesitation in relation to imputations (b) and (c) may be that his Honour was expressing doubt as to whether the defences were made out in respect of each imputation.

62 The reasoning to the conclusions in respect of each imputation leaves something to be desired: however, on a rehearing in this Court, it is the conclusion that must be assessed. In this Court, counsel for the appellant submitted:

"Mr Morrison referred to the Appellant as a dangerous individual, a disgraceful individual and inciting people to commit acts of violence and to have racist attitudes because of what the Appellant was supposed to have done to Mr Glasscock. However, the Appellant did nothing to Mr Glasscock and there is consequently no foundation or proper material on which these comments were based."

63 The appellant also submitted that the four imputations were statements of fact and not expressions of opinion. As noted below, we would accept that they were expressions of opinion.

The challenge to the defence of substantial truth

64 The terms of the defence of substantial truth have been set out above at [42]. We have earlier explained (at [19] - [21]) his Honour's approach to determining whether the imputations were a matter of substantial truth.

65 The first three grounds of appeal were as follows:

"(1) In determining the effect of the appellant's views and statements his Honour erred in applying the test of the right thinking member of the community.

(2) His Honour erred in failing to take into account that Australia is a multi-cultural society and the ordinary average Australian citizen would not condemn a Muslim Australian such as the appellant for expressing views and making statements about which the ordinary average Australian did not agree.

(3) His Honour erred in finding that the appellant was a disgraceful and dangerous individual just because he expressed views and made statements which his Honour held were unacceptable to right thinking persons in contemporary Australian society."

66 Although, as noted above (at [19] - [21]), the primary judge identified two different standards depending on the complexity or straightforwardness of the question, he appears not to have adopted that approach. In assessing the conduct and statements of the appellant on earlier occasions, he adopted the standard of " right thinking members of the community ", although occasionally he referred simply to the " Australian community ", " most people in the Australian community " and similar expressions. His Honour should be understood as applying a consistent test in determining whether the imputation was defamatory and whether it was substantially true.

67 The justification for applying the same test might be found in what appears to be the underlying premise of the primary judge's approach to determining how to assess the substantial truth of the imputations, namely the proposition that the truth cannot damage reputations and hence the defence to the imputation should be assessed on the same basis as the defamatory nature of the imputation, namely, capacity to damage reputation. However, that premise is unsatisfactory. First, it can hardly be doubted that the widespread publication of a truth, may (whether published for the first time or repeated) do novel and irreparable harm to reputation. Second, while substantial truth provides a defence to publication of defamatory imputations, it did so under the Act (the position now being different under the Defamation Act 2005 (NSW)) only where the imputation relates to a matter of public interest or is published under qualified privilege. (The second limb of the test will be addressed further below.)

68 In its written submissions at para 5, the respondent identified the apparent dilemma raised by the appellant in complaining that he had been " unfairly branded by the Respondent and its lawyers, and then by the trial judge, as a racist, homophobic, terrorist-supporting, women-hating bigot when all he was doing was expressing views consistent with his Islamic faith and his role as a prominent Australian Lebanese community spokesman ". The dichotomy was described as false, as might be understood from the appellant's views on homosexuality that, it was asserted (at para 6), went far beyond a Koranic viewpoint critical of homosexuality.

69 Both the appellant's assertion and the respondent's counter-assertion should be rejected. The evidence in this case did not permit an assessment to be made as to whether, and if so to what extent, the appellant's views were consistent with Islamic beliefs, or those of a particular branch of Islam. The respondent was on different ground in asserting that the primary judge had been correct to rely on the views of right-thinking members of the Australian community generally. At least in respect of the defamatory imputations, the matter complained of was addressed to the general community. If the particular views expressed by the appellant were being addressed to a specific audience however, the various statements would have to be considered individually. It would also be necessary to consider them with reference to the specific imputation which each was said to support.

70 Before going to that exercise, it is necessary to note how the primary judge applied the test or standard. By way of example, his Honour dealt under the heading "Homosexuality" with a document written by the appellant in 1999 and posted on a website identified as " [e-mail] ". He described the document (at [83]) as " a detailed discussion centred upon the sexual acts of homosexual males and whether or not they are acceptable to persons of the Muslim faith ."

71 As the primary judge stated, there were many passages in the publication that demonstrated an abhorrence of homosexuality, which is described in one place as " the ugliest form of perversion ". A finding of some importance at [89] was made in the following terms:

"It is apparent from the article that the [appellant], at least in 1999, was of the view that homosexuality is a crime for which the appropriate punishment was stoning to death. By contrast he believed that polygamy guarantees spiritual, emotional and physical gratification for women in society where homosexuality is 'mere depraved carnal pursuit.'"

72 The appellant's views on polygamy were in fact expressed in relation to " polygyny ", which we take to be a deliberate and accurate use of the more precise concept in relation to Islam. (The primary judge treated it, wrongly in our view, as an aberrant reference.)

73 More importantly, we do not derive from the article a view that, in 1999, the appellant believed that, in modern Australian society, death by stoning was the appropriate punishment. The references to death by stoning are all to be found in the Ahadith, which the appellant quoted. The Macquarie Dictionary, 5 th ed (2009) defines the Hadith (of which the Ahadith is the plural) to be the collection of traditions recording the actions and sayings of the Prophet Mohammed, being one of the primary sources of belief and principles in Islam.

74 Religions which rely upon biblical texts of some antiquity are not infrequently confounded by the need to reconcile the literal meaning of such texts with modern social attitudes, laws and customs. Once it is accepted that views based on traditional religious texts should be tolerated in modern society, it becomes more difficult to assert (let alone assume) that right-thinking members of that society will abhor those who hold such views.

75 There are further difficulties with the finding. First, under the heading " Treating perversion " there is a lengthy discussion of what approach should be taken to those who claim to be homosexual. The appellant stated:

"I have used the term sin and evil though I have not really gone into religion since I started dealing with the logical side, as the religious position is clear. The religious treatment of such perversion, in a situation like the world find [2] itself in today, where religious law cannot be applied, is one that begins by an admission of the pervert that what he's engaging in is wrong."

76 The passage proceeds for several further paragraphs: nowhere does the appellant suggest that in modern society homosexuals should be stoned to death. Based on that article, we are not satisfied that the finding set out (at [89]) can be supported in its terms.

77 That finding aside, we accept the views of the primary judge (at [91]) that the article demonstrates the appellant held homophobic views. We also accept that the appellant's views (although undoubtedly shared by some), would not be shared by the majority of right-thinking people in Australia. This finding, however, is not sufficient for present purposes. A person who does not share the appellant's views on homosexuality would not necessarily consider the appellant a dangerous individual, or a disgraceful individual. Holding such views is certainly not unlawful. There is, however, an offence of serious homosexual vilification: Anti-Discrimination Act 1977 (NSW), s 49ZTA. Further, homosexual vilification that does not fall within that concept may nevertheless give rise to a claim for relief by way of civil remedies under s 108 of that Act.

78 In respect of imputation (b), inciting people to commit acts of violence, the primary judge noted the respondent's submission that " maintaining in strident language that the appropriate punishment for homosexuals is stoning to death is an incitement to violence ": at [99]. His Honour concluded (at [100]):

"His views about the punishment of homosexuals ... are properly described as inciting people to commit violence."

79 Because, in our view, the underlying factual finding cannot be sustained, that element in respect of the truth of that imputation also cannot be sustained. That conclusion, by itself, might not require that the acceptance of the defence of substantial truth in relation to that imputation must be set aside. However, what his Honour did not do was 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 incites people to commit acts of violence. For this reason, the basis of the defence, as articulated by the primary judge, should not be accepted.

80 In respect of imputation (c), inciting people to have racist attitudes, the primary judge referred to three matters. The first (at [101]) was an article written by the appellant entitled "Racism", published in Nida'ul Islam in December-January 1996-1997, which his Honour described as " in a riposte to the views expressed by Pauline Hanson ...[and] a robust contribution to a debate which was taking place within Australian society at the time ". The second (at [103]) comprised comments by the appellant on the speech in January 2007 by Sheikh Hilali (see [28] above); the third was the link on the appellant's website to that of Radio Islam (see [35]-[36] above). He then said (at [104]):

"I am satisfied that the [appellant] 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."

81 Once again, with respect, his Honour did not ask the question whether, given the attitudes and views he found the appellant held, a right-thinking member of the Australian community would consider that the appellant incited people to have racist attitudes. In our view the defence of substantial truth in relation to imputation (c) was not made out.

82 The appellant's views on homosexuality were also relied upon in relation to imputation (d), that the appellant is a dangerous individual. Something more will need to be said about the findings in that respect generally.

83 His Honour's conclusions in relation to this imputation were as follows:

"109 The [appellant's] expressed views with respect to homosexuality described homosexuals in vitriolic terms. Although the views which he expressed may be held by others in the Australian community, the language in which he expressed them was likely to encourage violence against homosexuals.

110 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 ... homosexuals, it is, in my judgment, appropriate to describe that person as a dangerous individual."

84 Again, it may be doubted whether the discussion on the website was likely to encourage violence against homosexuals. Further, there was no evidence that the views were expressed on more than one occasion. More importantly for present purposes, there was no attempt to apply the accepted test by asking whether right-thinking members of the community (who might well not share the views) 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. An affirmative answer is by no means self-evident. Although the finding of truth in relation to that imputation was also based on the appellant's views in respect of women and Jewish people, the same difficulty arises, namely, the failure to address the substantial truth of the imputation according to the identified test.

85 The same criticism arises in respect of imputation (g), that the appellant is a disgraceful individual. Accepting the finding (at [112]) that the views expressed " are entirely repugnant to accepted values within the Australian community ", and are not shared by people generally, his Honour proceeded (at [113]):

"The question which the pleaded imputation raises is not whether any of the views of the [appellant] are disgraceful but rather whether by his words and actions he can be described as a disgraceful individual. The [appellant's] attitude to ... homosexuality ... 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."

86 The question whether right-thinking members of the community would consider such an individual disgraceful was not asked in those terms. The defence of substantial truth in relation to imputation (g) cannot be sustained

87 It will be necessary to say more about the findings on other subjects of the appellant's opinions, but it is sufficient to note for present purposes that the findings of substantial truth proceeded on a false basis and cannot be sustained. There was no notice of contention inviting the Court to uphold those findings on any different basis.

The challenge to the defence of comment

88 Imputation (b), being the first in respect of which the defence of comment was relied on, was that the appellant " incites people to commit acts of violence ". The material on which that comment was based was in part that which gave rise to imputation (a).

89 Imputation (a) was that the appellant " stirred up hatred against a 2GB reporter which caused him to have concerns about his own personal safety ". The respondent abandoned its claim of justification in respect of that imputation. The primary judge accepted that statements made by Mr Morrison on 2GB in respect of the journalist, Mr Glasscock, were inaccurate. Those statements appear to have included the following:

"The phone call I got from [Mr Glasscock] was one of fear because halfway through this peace rally things turned very hostile and hostile against his radio station but also towards Chris himself.

...

But Chris Glasscock our reporter down there called to say that he had significant concerns about his own personal safety .... But I gotta say it wasn't just at us, he started to point out reporter in the crowd. ... [A]nd there was Keysar point[ing] out the 2GB reporter and pointing out the microphone in the crowd and highlighting that it's these people, pointing at 2GB, these people stirring up the hatred.

Now the audio on this is not brilliant because Chris [Glasscock] had to retreat ...

Now I'm sorry about the quality of that, but as I said Chris our reporter there had to pull back because it wasn't safe for him to be standing at the front while all this was going on.

I'm told very reliably, one of the organizers from the rally to wind him up and a Labor MP ... actually had to lean forward to Keysar and tell him to back off, because Chris, she said, was just doing his job.

Now as Chris pulled out of that crowd, he copped it from plenty of people there .... Another reporter from another radio station told me last night he saw someone spit at Chris Glasscock as he walked away ...

But don't take it out on a young reporter on his own in a crowd of people that you're whipping up."

90 There were other statements that referred to hatred and bile directed at the respondent generally. Those statements needed to be related to things said by the appellant including the following, which commenced as an attack on the Federal Government and Prime Minister, Mr John Howard. The appellant said at the rally:

"Trad: ... this is a poke in the eye of those racist rednecks in tabloid journalism that for a whole week could only muster 5000 people filled with hatred.

...

But this racist government, Federal government, is taking us back to the level of being animals attacking each other.

And I have to give credit to a neighbour Asian nation, to a leader who said to John Howard in his own diplomatic language ' ' Stop this ethnic scapegoating'.

...

Crowd: What about 2GB?

What about 2GB?

What about Alan Jones and 2GB?

Shame

Shame

Trad: There is a great deal of shame, a great deal of shame in tabloid journalism and one talk back radio station, seems to be nothing, seems to be nothing other than the mouthpiece of the Howard government over the last few years.

Crowd: 2GB

Trad: This station yes ... it is whipping up fears. ... But we have to make sure that we change that belief. ... every time they whip up hatred, we show them the opposite. ...

... And these people play dirty, they play very very dirty, and I stand here as a Muslim, as a Muslim, you can look at me as the face of many Muslims in Australia ... all of whom are suffering as a result of the racist actions of predominantly one radio station, predominantly one radio station that is

Crowd : 2GB, 2GB

...

Trad: Again, should we, each and every one of us should be proud of this turn out today. If those creeps with their incredible resources after a week of racial hatred and incitement can only whip up five thousand people and make them behave in such an ugly manner. ..."

91 The reputed attacks on the 2GB reporter, Mr Glasscock, if shown to be true, might well have justified a finding that the appellant " incites people to commit acts of violence ". However, once those statements are removed and reliance is limited to the words used by the appellant, the most relevant being those set out above, the basis for the imputation is in large part removed. We are not satisfied that those words are sufficient in their terms to justify such a comment. The real basis for the comment having been removed, there was no proper material sufficient to support imputation (b) as a comment by Mr Morrison.

92 At trial the respondent submitted that, understood in the context of the following part of the matter complained, imputation (c) of constituted Mr Morrison's expression of his opinion, based on the appellant's conduct at the rally and in particular upon the excerpt of the appellant's speech that had been put to air (primary judgment (at [150])):

"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 I've ever quite done that, like he did."

93 It is difficult to understand the factual basis for this statement. The remark " like he did " appears to be a throwaway line. To accuse someone of racism is not, without more, to incite people to have racist attitudes; rather, one might think, the reverse. In its written submissions, the respondent identified no passage in the speech given by the appellant which could support such a finding. No further passages were identified in the course of oral argument. In our view, there was no proper material upon which a comment that the appellant incites people to have racist attitudes could be based. The defence of comment was therefore not made out in relation to imputation (c).

94 If it were not appropriate to say that the appellant stirred up hatred against a reporter, or that he incited people to commit acts of violence, or that he incited people to have racist attitudes, it is unclear upon what basis it was appropriate to describe the appellant as a dangerous individual, being the expression used in imputation (d).

95 Dangerousness, in relation to an individual, may be based on:

(a) conduct - such as carrying a weapon;

(b) personality - such as being volatile or unstable;

(c) ideas - (i) if privately held, only so far as they are revealed in (a) or (b); or (ii) if publicly proclaimed, only if combined with influence.

96 It is not necessary to consider privately held ideas, as no reliance was placed on ideas or attitudes held by the appellant which had not been publicly expressed. Nevertheless, ideas alone may be seen as inconsistent with key social or cultural values necessary for the stability and advancement of a particular society. Clearly, " dangerous " is an epithet of no precise denotation. Its connotation, however, is generally pejorative.

97 To engage in ethnic scapegoating, to whip up racial hatred, or to incite others to riot, may well lead the speaker to be characterised as a dangerous individual. To speak, even forcefully, against such activities, even if in so doing the emotional level of the public debate is raised, is not readily so characterised because it promotes, rather than undermines, values which are supportive of social stability and advancement. Of course, to accuse others without justification, and for provocative purposes, of inciting people to racial hatred, may be dangerous. However, the respondent did not attempt to prove that the appellant's accusations were so groundless as to imply that the appellant was an agent provocateur .

98 In our view the material in the appellant's speech relied on by the respondent provided no sufficient basis for imputation (d).

99 Imputation (g) uses a similar pejorative epithet, " disgraceful ", having a similar level of imprecision. As with the concept of dangerousness, being disgraceful is an attribute which, when applied to an individual, usually refers, at least indirectly, to conduct or behaviour. It connotes a failure to live up to expected standards that are basic and important. It is an epithet commonly associated with members of a profession whose conduct has forfeited the right to continued membership. The comment that gave rise to the imputation followed a series of statements (not sought to be justified as true at trial) in relation to the appellant's conduct with respect to Mr Glasscock. The broadcast continued:

"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 you 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."

100 Whether, when read in context, the description of the appellant as a disgraceful individual was, in the commentator's view, related to his conduct in relation to Mr Glasscock or more generally, is quite unclear.

101 If there were other material relied upon, it was not identified and would not have been clear to listeners. No evidence of other material was called and no reliance placed on any other material for the purposes of the defence of comment. On the other hand, the thrust of the attack on the appellant was not that he attacked the radio station or those who were responsible for making comments on air, but that he had attacked a reporter who was " just doing his job ".

102 In these circumstances, the description of the appellant as a disgraceful individual was not shown to be based on proper material for comment. The defence, in respect of imputation (g), should be rejected.

The challenge to the defence of qualified privilege

103 The primary judge upheld the defence of qualified privilege in relation to all the imputations. His Honour did so on the basis that the respondent had a broadly based privilege to respond to an attack, to vindicate its rights and interests. He noted (at [137]):

"At the rally on the day before the broadcast, the [appellant] accused the [respondent] of partisan politics and of inciting through its broadcasts racist attitudes which culminated in the riots at Cronulla in December 2005. It does not presently matter whether the allegations which the [appellant] made were true. The [respondent] was entitled to defend itself against them."

104 As his Honour correctly explained (at [138] - [140]), the broadcast was undoubtedly, at least in part, a response to the appellant's attack upon the respondent. He concluded (at [141]):

"In these circumstances I am completely satisfied that the [respondent], through the broadcast by Mr Morrison, was replying to the [appellant's] attack. For this reason, but for the possibility of malice, the [respondent] was entitled to respond as it did. The attack was expressed in strident terms and justified a vigorous response. The response was, in my opinion, proportionate to the attack."

105 That a public defamatory attack may give rise to an occasion of qualified privilege at common law, permitting a person having a relevant duty or interest to respond in defamatory terms, without attracting liability, is well established: see, eg, Adam v Ward [1917] AC 309.

106 For this purpose, it is beside the point that Mr Morrison's belief that there had been an attack by the appellant on Mr Glasscock, the reporter at the rally, was an inaccurate belief. The defence of qualified privilege at common law is available in respect of the publication of statements which are false in fact, and injurious to the character of another if "fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned ": Toogood v Spyring [1834] 149 ER 1044 (at 1050 - 10510) per Parke B.

107 When the privilege of the occasion arises from the plaintiff making some public attack upon the reputation or conduct of the defendant or upon some interest which the latter is entitled to protect, the purpose of the privilege is to enable the defendant on his part freely to submit his answer, whether it be strictly defensive or by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant: Penton v Calwell [1945] HCA 51; (1945) 70 CLR 219 (at 233 - 234) per Dixon J.

108 In this respect, defamation law provides a rare example of the law permitting an individual to seek self-redress by conduct that would otherwise be unlawful. Further, the reply by Mr Morrison could legitimately be made on behalf of his principal and could legitimately be made not only in reply to an attack on his employer, but also on a fellow reporter. The question in the present case is whether the response exceeded permissible limits.

109 The defence also invites comparison with the circumstances in which the respondent would be permitted to comment on the statements of the appellant. No defence of comment being available, because the proper material on which it might be based was missing, the defence of qualified privilege may yet permit a response under the general law. Further, the statement that the appellant incites people to racist attitudes was itself so clearly a misguided attempt to throw back at the appellant the accusation which had been levelled at the radio station as to be fairly described as a gratuitous attack. Less remote from the concept of a legitimate response may be the imputation that the appellant deliberately gives out misinformation about the Islamic community, because such an assertion may be said to challenge the credibility of the appellant, albeit on a matter of no direct relevance to the attack on the respondent. In Penton v Calwell (at 233-234), Dixon J stated:

"The defence of qualified privilege means that, in the absence of malice, the existence of which of course the defendant denies, the libel is not actionable, whether the charge it contains be true or untrue. It means that the publication of the defamatory statements is protected and that the question whether they are or are not true is immaterial. When the privilege of the occasion arises from the making by the plaintiff of some public attack upon the reputation or conduct of the defendant or upon some interest which he is entitled to protect, the purpose of the privilege is to enable the defendant on his part freely to submit his answer, whether it be strictly defensive or be by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant. The privilege is given to him so that he may with impunity bring to the minds of those before whom the attack was made any bona fide answer or retort by way of vindication which appears fairly warranted by the occasion.

The foundation of the privilege is the necessity of allowing the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect. ... The purpose is to prevent the charges operating to his prejudice. It may be conceded that to impugn the truth of the charges contained in the attack and even the general veracity of the attacker may be a proper exercise of the privilege , if it be commensurate with the occasion. If that is a question submitted to or an argument used before the body to whom the attacker has appealed and it is done bona fide for the purpose of vindication , the law will not allow the liability of the party attacked to depend on the truth or otherwise of defamatory statements he so makes by way of defence.

For both parties have invoked the judgment, not of the courts of law, but of the public or a section of the public or other body. In the present case, however, the defendant has chosen to challenge the plaintiff to come into the courts of law and to submit the charge as an issue for their decision. He has held up before the plaintiff the consequences of his failure to do so. That is not, I think, the kind of defence or vindication that comes within the privilege. It is inconsistent with the very basis and rationale of the protection which the privilege gives . It gives a protection against liability to suit for a statement made in a controversy submitted, so to speak, by the plaintiff himself to another forum .

To make a charge and invite the plaintiff to invoke the judgment of the courts of law is to depart from the course around which protection is thrown. The defendant cannot say in the libel, 'This is my charge against you; I make it so that you may submit the issue to the courts and if you refuse the challenge you are branded,' and then, when the plaintiff accepts the challenge, set up a privilege which, if well founded, intercepts the issue and defeats the action. Upon principle I think that the form of the libel takes it outside the privilege claimed for the occasion." (emphasis added)

110 The respondent submitted that all its statements constituted part of a legitimate reply or counter-attack and, too, that Dixon J's use of the terms " bona fide " and " fairly warranted " in the phrase " any bona fide answer or retort by way of vindication which appears fairly warranted by the occasion" , and the term "proper" in "proper exercise of the privilege ", were plainly references to considerations of malice. It pointed to the remarks made, on appeal from Dixon J in Penton , by Latham CJ and Williams J (at 242 - 243):

".... Statements which are made in self-defence are privileged when they are made in reply to attacks upon the character or conduct of the defendant.... When a person has been attacked seriously and abusively, the terms of his reply are not measured in very nice scales, but excess in reply may so exceed a reasonable view of the necessities of the occasion as to provide evidence from which malice may be inferred. " (emphasis added)

See also Penton (at 250), per Starke J; Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503 (at 515 - 516).

111 However, in our opinion, the better view is that for which the appellant contends. It is supported by Gatley, which notes (at par 14.48) that "[m]ere retaliation, which cannot be described as an answer or explanation, is not protected ". As Gatley (at par 14.64) records "[t]he privilege extends only so far as to enable [the defendant] to repel the charge brought against him - not to bring fresh accusations against his adversary ". In short, in our view, the question is whether the matter complained of is relevant to the occasion of qualified privilege: see Fraser v Holmes [2009] NSWCA 36 (at [35] ff) per Tobias JA (McColl JA and Basten JJA agreeing).

112 Imputations (a), (b), (d) and (g) were based upon a misapprehension of the facts, but that is not fatal to the defence. They constituted a legitimate response to the public attack on the radio station. As indicated above, imputation (c) was, in our view, not a legitimate response and was not, accordingly an answer or an explanation. Taken in context, imputation (g), describing the appellant as a disgraceful individual, could be seen as little more than vulgar abuse, but to the extent it was defamatory it was sufficiently linked to the public attack on the respondent to be part of a legitimate response. Describing the appellant as a pest (imputation (h)) was also vulgar abuse, and not, in our view, a relevant response. Imputation (j) concerning misinformation, ranges more widely, but, we would accept, was within the latitude of response allowed to a party attacked, which seeks to undermine the credibility of its attacker. Imputation (k) was a not bona fide answer or retort by way of vindication fairly warranted by the occasion.

113 The approach of the primary judge was to treat the whole of the response as an occasion of qualified privilege. However, such a broad-brush approach is not justifiable. In our view, the defence should not have been upheld in relation to imputations (c), (h) and (k).

Malice

114 The final question is whether the primary judge erred in concluding that the appellant had not proved the respondent was actuated by malice in publishing the matter complained of.

115 The substance of the appellant's case on malice was that the respondent and its agent, Mr Morrison, had taken no steps to verify the situation faced by the respondent's reporter, Mr Glasscock, before attacking the appellant and had, accordingly done so either knowing that assertion to be false or with reckless indifference to the truth or falsity of his attack.

116 The difficulty the appellant faced was that he bore the onus of proof with respect to malice, but was not able to show precisely how Mr Morrison came to form the (incorrect) views which he expressed in the matter complained of as to the situation in which Mr Glasscock found himself at the rally, nor what steps Mr Morrison may have taken to clarify the situation. The appellant relied solely upon the fact that the videotape of the rally did not support claims of aggression towards Mr Glasscock and that Mr Morrison said that he had viewed the video. Factually, those two statements were true, but they were not sufficient to demonstrate that Mr Morrison knew what he said to be false or made his statements with reckless indifference to the truth or falsity of his attack.

117 Perhaps because his Honour was not fully focused on the issues, having rejected the appellant's claims on other grounds, his factual conclusions were stated somewhat loosely (at [146]):

"Ultimately there is no evidence from which I could conclude that Mr Morrison as opposed to Mr Glasscock knew that his remarks on air were false. Even if Mr Morrison knew that this allegation which he broadcast was false I am not persuaded that the dominant purpose of the [respondent] in making the broadcast was improper."

118 With respect, both of these sentences are troubling. The reference to " no evidence " must be understood not as meaning there was no material from which he could draw a relevant inference, but rather that such material as there was did not suffice to satisfy him on the balance of probabilities. So far as the second sentence is concerned, if Mr Morrison knew that he was making false statements about the appellant's conduct and character, it is difficult to identify a " proper " motive for such conduct on Mr Morrison's part. However, these remarks do not undermine the finding of fact, namely, that Mr Morrison, believing that what he said was true, had not been shown to have acted with malice.

Conclusions

119 The imputations, other than (a) which was not sought to be defended on the basis of substantial truth, each involved a comment, rather than a statement of fact. The distinction can be seen in the language used: imputation (a) states that the appellant "stirred up hatred", indicating a fact involving past conduct. Each of the other imputations is in the present tense, indicating a general state of affairs or characterisation of the appellant, based on facts or opinions. It was open to the respondent to seek to defend those imputations on the basis that they were substantially true - as well as on the basis that they were defensible as comment within the meaning of Division 7 of the Act.

120 The defence of substantial truth was not assessed according to the relevant legal standard. The findings made by the primary judge cannot be supported, in relation to the imputations, (b)-(g). Absent affirmative findings of truth in respect of those imputations, the defences of contextual truth in relation to imputations (a), (h), (j) and (k) must also fail.

121 The defence of comment raised in relation to imputations (b), (c), (d) and (g) should have been rejected, for the reasons given above.

122 There remains a question as to whether the imputations could be defended as a reply to an attack on the respondent and its employee, providing an occasion of qualified privilege. We have concluded that each of the imputations, other than imputations (c), (h) and (k), could be so defended at common law.

123 The matter should be remitted to the Common Law Division for assessment of damages, limited to imputations (c), (h) and (k).

124 As to costs, each defence in relation to each imputation raised a separate issue. The appellant has been partly successful, although not in relation to what appear to be the most damaging imputations. The respondent should pay 50% of his costs in this Court. The judge who completes the hearing of the remitted matter should determine the costs of the first trial.

Orders

125 We make the following orders:

(1) Appeal allowed in part;

(2) Set aside the orders made by McClellan CJ at CL on 31 July 2009;

(3) Remit the proceedings to the Common Law Division for the assessment of damages in relation to imputations (c), (h) and (k);

(4) Dismiss the appeal with respect to imputations (a), (b), (d), (g) and (j);

(5) Order the respondent to pay 50% of the appellant's costs of the appeal;

(6) Costs of the first trial to be determined by the judge who assesses damages.

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Decision last updated: 23 March 2011