Harbour Radio Pty Ltd v Trad

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.