Abou-Lokmeh v Harbour Radio Pty Ltd

Abou-Lokmeh was the plaintiff in defamation proceedings against Harbour Radio Pty Ltd, the defendant. The plaintiff alleged that the defendant conveyed imputations that he had paid to have the defendant murdered. The defendant sought to rely on defences of contextual truth and qualified privilege at common law. The defendant also applied to strike out the plaintiff's statement of claim. The matter came before the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the defendant's pleaded contextual imputation, that the plaintiff wanted to have the defendant killed, was capable of being conveyed "in addition to" the plaintiff's pleaded imputation, for the purposes of section 26 of the Defamation Act 2005 (NSW). It also had to consider whether the defence of qualified privilege, in reply to an attack, was available where the plaintiff's reply attacked a third party, and if so, whether it was sufficient that the attack on the third party was necessary to vindicate the plaintiff's reputation and whether the reply was commensurate with the occasion. Finally, the court considered whether the defences were obviously untenable or unarguably bad, justifying a strike-out.

Regarding the defence of contextual truth, the court applied the "differ in substance" test, considering whether the contextual imputation was capable of being conveyed in addition to the primary imputation. On the qualified privilege defence, the court examined the principles of reply to an attack, including the necessity of attacking a third party to vindicate the plaintiff's reputation and the proportionality of the reply. The court also assessed the defences against the threshold for a strike-out application, determining if they were obviously untenable.

The Court of Appeal ordered that leave to appeal be refused, and that the applicant pay the respondents' costs.