Harbour Radio Pty Ltd v Ahmed

This appeal concerned defamation proceedings brought by Mr Ahmed against Harbour Radio Pty Ltd. The appeal was heard in the Court of Appeal of New South Wales by McColl, Basten and Meagher JJA. The primary dispute revolved around the jury's findings in relation to defences raised by Harbour Radio, specifically the defence of honest opinion, and whether a substantial miscarriage of justice had occurred.

The court was required to determine whether the jury’s findings in relation to the defences were reasonably open on the evidence. This involved considering whether the appellate court could substitute its own findings for those of the jury, and if a retrial was appropriate. Key legal issues included the distinction between fact and opinion in defamation, whether opinions were based on facts stated in the publication, and the concept of substantial truth in relation to assertions and denials under section 31 of the Defamation Act 2005 (NSW). The court also considered whether the award of damages was excessive.

The Court of Appeal allowed the appeal in part, setting aside certain jury findings concerning the honest opinion defence and the assessment of damages. The court reasoned that the jury’s findings on whether the expressions of opinion were based on substantially true material were not reasonably open on the evidence. Consequently, the court set aside the original orders and directed a retrial. The retrial was limited to determining whether the relevant expressions of opinion were based on substantially true material, assessing damages for those imputations not based on substantially true material, and for other defamatory imputations, as well as costs.