HIGH COURT OF AUSTRALIA
GUMMOW, HAYNE, HEYDON, KIEFEL AND BELL JJ
HARBOUR RADIO PTY LIMITED APPELLANT
AND
KEYSAR TRAD RESPONDENT
Harbour Radio Pty Limited v Trad [2012] HCA 44
5 October 2012
S318/2011ORDER
1.Appeal allowed.
2.Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 22 March 2011, and in lieu thereof order that:
(a)the appeal to that Court be allowed;
(b)the orders of the Common Law Division made on 6 August 2009 be set aside.
3.Declare that the defence of qualified privilege at common law with respect to imputations (a), (b), (c), (d), (g) and (j) is made good.
4.Remit the matter to the Court of Appeal for consideration of:
(a)the defences of substantial truth with respect to imputations (b), (c), (d) and (g) and contextual truth with respect to imputations (h) and (k);
(b)any questions of remitter to the Common Law Division for assessment of damages if the Court of Appeal holds that a defence of contextual truth does not apply in relation to imputations (h) and (k);
(c)all questions of costs of proceedings in the Common Law Division and the Court of Appeal.
5.No order as to costs of the appeal or cross-appeal to this Court.
On appeal from the Supreme Court of New South Wales
Representation
R G McHugh SC with G R Rubagotti for the appellant (instructed by Banki Haddock Fiora)
G O'L Reynolds SC with C A Evatt and R K M Rasmussen for the respondent (instructed by Turner Freeman Lawyers) at the hearing on 3 February 2012
G O'L Reynolds SC with R K M Rasmussen for the respondent (instructed by Turner Freeman Lawyers) at the hearing on 5 March 2012
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
GUMMOW, HAYNE AND BELL JJ. The principal issues of defamation law in this appeal from the New South Wales Court of Appeal (Tobias, McColl and Basten JJA)[1] concern the defence at common law of qualified privilege. The proceedings are governed by the Defamation Act 1974 (NSW) ("the 1974 Act"), rather than the Defamation Act 2005 (NSW)[2]. The effect of s 11 of the 1974 Act was to preserve the common law defence.
[1]Trad v Harbour Radio Pty Ltd (2011) 279 ALR 183.
[2](2011) 279 ALR 183 at 185 [2].
The objects stated in s 3 of the 1974 Act include the provision of "effective and appropriate remedies for persons whose reputations are harmed by the publication of defamatory matter" (par (a)) and, on the other hand, ensuring "that the law of defamation does not place unreasonable limits on the publication and discussion of matters of public interest and importance" (par (b)). It will be apparent that there may be some tension between these objects.
Further, the width of the principles governing the defence of qualified privilege emphasises the need, in deciding whether they apply in a…
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- Case
- [2012] HCA 44
- Decision Date
CaseChat Overview and Summary
The central legal issues before the High Court were whether the defence of qualified privilege at common law was applicable to certain imputations made in the broadcast, and whether the broadcast was sufficiently connected to Mr Trad's criticism to attract this defence. The court also considered whether the broadcast was made bona fide to vindicate 2GB's reputation and whether it was actuated by malice. Further, the court examined the relevance of community standards and the concept of a "right-thinking" person to the defences of substantial truth and contextual truth.
The High Court reasoned that a response to criticism is sufficiently connected to the privileged occasion if it addresses the content or credibility of the attack, or the credibility of the attacker. In this instance, 2GB's broadcast, which imputed hypocrisy and racist attitudes to Mr Trad, and suggested he had incited violence and stirred up hatred against a 2GB reporter, was considered a relevant and reasonable response to Mr Trad's criticism of 2GB's journalism. The court found that imputations (a), (b), (c), (d), (g), and (j) were sufficiently connected to the privileged occasion and made in response to Mr Trad's attack, thus making good the defence of qualified privilege for these imputations. However, imputations (h) and (k) were found to exceed the occasion of the privilege.
Consequently, the High Court allowed the appeal, setting aside the orders of the Court of Appeal and the primary judge. The court declared that the defence of qualified privilege at common law was made good with respect to imputations (a), (b), (c), (d), (g), and (j). The matter was remitted to the Court of Appeal for consideration of the defences of substantial truth and contextual truth for other imputations, and for assessment of damages if the contextual truth defence failed for imputations (h) and (k). No order was made as to the costs of the appeal to the High Court.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 22 March 2011, and in lieu thereof order that:
(a) the appeal to that Court be allowed;
(b) the orders of the Common Law Division made on 6 August 2009 be set aside.
3. Declare that the defence of qualified privilege at common law with respect to imputations (a), (b), (c), (d), (g) and (j) is made good.
4. Remit the matter to the Court of Appeal for consideration of:
(a) the defences of substantial truth with respect to imputations (b), (c), (d) and (g) and contextual truth with respect to imputations (h) and (k);
(b) any questions of remitter to the Common Law Division for assessment of damages if the Court of Appeal holds that a defence of contextual truth does not apply in relation to imputations (h) and (k);
(c) all questions of costs of proceedings in the Common Law Division and the Court of Appeal.
5. No order as to costs of the appeal or cross-appeal to this Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: GUMMOW, HAYNE AND BELL JJ, HEYDON J
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