Habib v Nationwide News Pty Ltd

The appeal concerned a defamation proceeding brought by the appellant, Mr. Habib, against the respondent, Nationwide News Pty Ltd. The dispute centred on statements made by Mr. Habib during interrogations in Pakistan and Guantanamo Bay, and whether these statements, admitted as evidence by the primary judge, were admissible under section 84(1) of the *Evidence Act 1995* (NSW). The respondent also sought to rely on a defence of substantial truth to the defamatory imputations.

The court was required to determine several legal issues. Firstly, whether the primary judge erred in admitting Mr. Habib's admissions, given the circumstances of their making in Pakistan and Guantanamo Bay, and whether the onus of proof under section 84(1) had been discharged by the respondent. Secondly, the court considered whether the issue under section 84(1) had been properly raised in the proceedings as required by section 84(2) of the *Evidence Act*. Thirdly, the court examined whether the defence of substantial truth was established, including the characterisation of the imputations and whether an interview given by Mr. Habib after the publication of the defamatory material was sufficiently proximate in time to support the defence. Finally, the court considered whether the appellant's failure to make a strike-out application constituted an abuse of process.

The Court of Appeal allowed the appeal, finding that the primary judge had erred in admitting the statements made by Mr. Habib during his interrogations. The court held that the respondent had failed to discharge the burden of demonstrating that these admissions were not influenced by the circumstances of their making, as required by section 84(1) of the *Evidence Act*. Consequently, the judgment of the primary judge was set aside, and judgment was entered for the appellant. The matter was remitted to the Common Law Division for the assessment of damages.