Harbour Radio Pty Ltd v Trad

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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
S318/2011

ORDER

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.

  1. 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].

  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.

  3. 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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Details
Case
[2012] HCA 44
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Harbour Radio Pty Ltd (2GB) against a decision of the Court of Appeal of the Supreme Court of New South Wales concerning a defamation claim brought by Mr Trad. The dispute arose from a radio broadcast made by 2GB in response to statements made by Mr Trad, who had criticised the station's journalism in relation to the Cronulla Riots.

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

GUMMOW, HAYNE AND BELL JJ HEYDON J
That the matter complained of is sufficiently connected to the privileged occasion to attract the defence may appear upon any one of several considerations. The matter may be sufficiently connected with the content of the attack, or it may go to the credibility of the attack, or to the credibility of the person making that attack. Questions of degree inevitably will be presented.Conclusions respecting qualified privilege Mr Trad had attacked 2GB by placing at least part of the blame for the Cronulla Riots upon the "tabloid journalism" practised by one particular talk‑back radio station, namely 2GB. It was a relevant and reasonable response by 2GB to direct attention to the credibility of the attacker by imputing hypocrisy to Mr Trad as one who himself incited people to commit acts of violence and to have racist attitudes, and as one who at the peace rally had stirred up hatred against a 2GB reporter, causing him concern about his personal safety (imputations (a), (b) and (c)). Imputation (j) ranges more widely but is linked to par [16] of the broadcast[62]. In identifying Mr Trad as one who himself deliberately gives out misinformation about the Islamic community, it also seeks to undermine his credibility in complaining at the peace rally of the mistreatment of the community by 2GB. Imputations (d) and (g) are also linked by the pleading to par [16]. This text indicates that the imputations involved more than, as counsel for Mr Trad put it in this Court, 2GB "just having a crack at him". The misinformation was said to be of such a degree of seriousness as to render him a dangerous person, thus further undermining his credibility; further, it was disgraceful for Mr Trad at the peace rally to purport to represent the Islamic community in his attack upon 2GB when he had been marginalised by that community. Imputations (d) and (g) were protected by qualified privilege.[62]Set out at [7]. Accordingly, the primary judge correctly concluded that 2GB's defence of qualified privilege applied to imputations (a), (b), (c), (d), (g) and (j). Imputation (k) is obscurely expressed. Such coherence as it does have is provided by the portion of the 2GB broadcast set out in par [24][63]. The imputation seems to fix upon the relationship between Mr Trad and the media as the source of the relevant reciprocity of interest. The point then made appears to be that Mr Trad rose to prominence in Islamic community affairs by use of the facilities provided by the media, yet at the peace rally he criticised the media. Imputation (k) exceeded the occasion of the privilege. The Court of Appeal correctly decided that it was not a retort by way of vindication which was fairly warranted by the occasion[64]. [63]Set out at [7].[64](2011) 279 ALR 183 at 209 [112]. With respect to imputation (h), the Court of Appeal was correct in deciding that to publish of Mr Trad that he was a pest, without more, was not a relevant response to the attack on 2GB. Counsel for Mr Trad correctly emphasised that the charge of being a pest in no way reflected on Mr Trad's credibility in making the charges against 2GB.

Ratio Decidendi

Legal Principle Established

Established by: GUMMOW, HAYNE AND BELL JJ, HEYDON J

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