Trad v Harbour Radio Pty Ltd - [2009] NSWSC 750

No judgment structure available for this case.

CITATION: Trad v Harbour Radio Pty Ltd [2009] NSWSC 750

HEARING DATE(S): 18-21 May 2009
25-26 May 2009

JUDGMENT DATE :
31 July 2009

JURISDICTION: Civil

JUDGMENT OF: McClellan CJatCL

DECISION: Plaintiff's claim dismissed with costs.

CATCHWORDS: DEFAMATION - justification - truth - contextual truth - DEFAMATION - proper material for comment - opinion - DEFAMATION - privilege - qualified privilege - response to attack

LEGISLATION CITED: Defamation Act 1974
Anti-Discrimination Act 1977 (NSW)
Sex Discrimination Act 1984 (Cth)
Racial Discrimination Act 1975 (Cth)
Disability Discrimination Act 1992 (Cth)

CATEGORY: Principal judgment

CASES CITED: Adam v Ward (1917) AC 309
Aktas v Westpac [2009] NSWCA 9
Bass v TCN Channel Nine [2003] NSWCA 118; (2003) 60 NSWLR 251
Cairns v John Fairfax & Sons Ltd (1983) 2 NSWLR 708
Corby v Channel Seven Sydney Pty Ltd (Supreme Court of New South Wales, Nicholas J, 20 February 2008, unreported)
Hepburn v TCN Channel 9 (1984) 1 NSWLR 386
Horrocks v Lowe [1975] AC 135
Jackson v John Fairfax Publications & Sons Ltd (1981) 1 NSWLR 36
John Fairfax v Blake (2001) 53 NSWLR 541
Loveday v Sun Newspapers Ltd (1937) 59 CLR 503
Penton v Calwell (1945) 70 CLR 219
Radio 2UE Pty Ltd v Chesterton [2009] 8 HCA 16
Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
Rivkin v Amalgamated Television Services Pty Ltd [2001] NSWSC 432
Sims v Wran (1984) 1 NSWLR 317

PARTIES: Keysar Trad (Plaintiff)
Harbour Radio (Defendant)

FILE NUMBER(S): SC 2006/20324

COUNSEL: C A Evatt/R K M Rasmussen (Pltf)
R G McHugh SC/M F Richardson (Def)

SOLICITORS: Turner Freeman (Pltf)
Banki Haddock Fiora (Def)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

McCLELLAN CJ at CL

FRIDAY 31 JULY 2009

20324/06 TRAD v HARBOUR RADIO PTY LTD
JUDGMENT

1 HIS HONOUR: The plaintiff, Keysar Trad, was defamed by a broadcast on radio station 2GB which went to air at approximately 10.05 am on Monday 19 December 2005. The host at the time was Jason Morrison. The broadcast is approximately 11 minutes in length, although there was at least one commercial break during this period. It is comprised of a monologue by Mr Morrison interspersed with a short excerpt from an audio recording of a public rally which occurred the previous day during which the plaintiff made a speech. It also contained a talk back call comprising a discussion between Mr Morrison and a caller identified as “Jason” and a further talk back call between Mr Morrison and a caller identified as “Josh”.

2 The plaintiff sues under the Defamation Act 1974. At the trial pursuant to s 7A of that Act the jury found that the following imputations were conveyed and were defamatory of the plaintiff:

3 The defendant pleaded truth pursuant to s 15 of the Defamation Act in respect of imputations (a), (b), (c), (d), (h) and (j) but does not press that defence in relation to imputation (a). The defendant did not plead truth with respect to imputation (k). The defendant also relied on a defence of contextual truth pursuant to s 16 of the Act. No additional contextual imputation was pleaded. In addition the defendant relied upon a defence of qualified privilege being the right of reply to an attack at common law. No defence was pressed with respect to s 22 of the Act.

4 The defendant also relied on defences of comment pursuant to s 32 and 33 of the Act. The defence of comment was not pressed in respect of imputations (a), (h) and (j) but it was pressed in respect of imputations (b), (c) and (d) and (g).

The broadcast

5 A transcript of the relevant broadcast reads as follows:

“Let me tell you about the peace rally that happened on Sunday. Peace rally so it was called. You gotta be kidding!

There is a well known apologist for the Islamic community spewing hatred and bile at anyone who did not agree with (his) philosophies and principles including this radio station and a number of the broadcasters here including myself. And the vitriol towards 2GB at the moment shows no bounds with some of these people. Each announcer on this station has his or her own opinion and that is his own opinion, there is no station agenda here, it is called free speech, we operate it. Same thing, if you want to ring up and be a part of it, you can, its easy, it is free speech.

Then there was Keysar Trad spewing his bile towards the crowd and in particular to one of our reporters, I’ll share that story with you in a moment. Once you hear this bloke, we actually have him on tape talking and stirring up the crowd. Now Keysar believes in free speech and freedom of the media, but it seems only when it is in his directions (sic). More to say on that shortly.

…

I might talk to you about this so called peace rally that was held in the city yesterday. Peace rally. And our good old friend Keysar Trad, the peacemaker. Well wait till you hear what we’ve got on Keysar Trad this morning, now you might have seen the TV pictures on this last night, I wasn’t there, I had a reporter there, and that’s part of the reason I’m talking about this right now. This peace rally was a nice idea, but unfortunately, like these things, it was hijacked by the radicals. When watch things slowly and I did (sic), I pulled the video tape out and slow mo’ed through it and had a look at the banners that were being held up as this march went through the city, many thousands of people, banners for the Communist Party, the anti-detention centre mob, the refugee advocates, the national students’ union, I even saw someone holding up a banner against the federal government’s industrial relations laws. Remember this was an anti-racism peace rally, so much for a nice cross section of the community here, this was a multipurpose rally in the end and another case of loonies trying to hijack the situation.

Now mid-afternoon yesterday, I got a phone call from one of our reporters that we sent out to cover this, we had four people out in Sydney yesterday covering the city because we didn’t know really what to expect, one of the things we went to cover was the peace rally because that’s what we thought it was going to be. However, let me tell you that the phone call that I got from my reporter Chris Glasscock, who is a young guy in his 20s and a fairly tough young guy in his twenties let me tell you that. The phone call I got from him was one of fear because halfway through this peace rally things turned very hostile and hostile against his radio station but also towards Chris himself. I’m gonna play this in just a moment, but I want you to have a listen to the words of Keysar Trad, Keysar Trad who now days represents nobody from the Islamic community apart from his own views, he doesn’t have the backing of the Lebanese Muslim Society, in fact I am told quite reliably that Keysar Trad is somewhat loathed.

But Chris Glasscock our reporter down there called to say that he had significant concerns about his own personal safety because Keysar had turned his little moment of peace into a hate 2GB rally. Now Keysar blames this radio station for the violence over the last week, he’s not hidden from that he said it everywhere, on television, he accused me of it, he accused everyone on this station, not the blokes who have been caught with tins of petrol to make the bombs and not the guys who smashed hundreds of windscreens or bashed and stabbed each other or fired shots into churches and school yards, but its 2GB’s fault. And it didn’t take him long at this rally to point the finger against at us. But I gotta say it wasn’t just at us, he started to point out our reporter in the crowd. Now Chris was there and you see it every night on television our reporters with little 2GB microphones in their hands. They have to stand there right in the thick of it, often, to record the audio so we can bring it back and play it on the radio station and there was Keysar point out the 2GB reporter and pointing out the microphone in the crowd and highlighting that it’s these people, pointing at 2GB, these people stirring up the hatred.

Now the audio on this is not brilliant because Chris had to retreat, so we only have, you know, long shot audio recording, but I think you’ll get an idea, have a listen closely to this:

‘[Inaudible] … Australian against Australian … [inaudible] … human being against human beings … [inaudible] …’

(Interjector from the crowd); ‘What about 2GB, what about 2GB?’

(applause from the crowd)

‘there is a great deal of shame, a great deal of shame in tabloid journalism and one talk back radio station they’ve been nothing, they’ve been nothing other than the mouthpiece of the Howard Government over the last few years … [inaudible]’

(applause from the crowd)

Now that’s Keysar Trad at a peace rally, peace rally. Now I’m sorry about the quality of that, but as I said Chris our reporter there had to pull back because it wasn’t safe for him to be standing at the front while all this was going on.

And it goes on, there is about ten minutes of this bile about how evil and hate filled this radio station is and about how we incite people to commit acts of violence and racist attitudes. I don’t think that I’ve ever quite done that, like he did. In fact I don’t think anyone here has ever done anything quite like that. It actually took, I’m told very reliably, one of the organizers from the rally to wind him up and a Labor MP whose name escapes me but I did see her on televison last night, actually had to lean forward to Keysar and tell him to back off, because Chris, she said, was just doing his job.

Now as Chris pulled out of that crowd, he copped it from plenty of people there, remember we got the loony left there, the Communist Party, the anti-detention mob, the refugee advocates, the students union, the whole lot, they’re all there. Another reporter from another radio station told me last night he saw someone spit at Chris Glasscock as he walked away, now I haven’t asked Chris about that yet, but someone else told me it happened so I’ll believe it to be true. Remember this was a peace rally.

Now, Keysar Trad, you are a disgraceful individual and I’m not alone in thinking this, I won’t talk to you on the air because you represent no one’s views other than you own, so you know, why you call up purporting to be from the Islamic community is beyond me. You are one guy who basically has been marginalized. And I think the more you say the more you represent to me that you are a dangerous individual to be out there trying to represent the views because I think you’re responsible about more misinformation about the Islamic community of the attitudes of Christian Australians than any other person.

Now he is widely perceived as a pest, that’s the way I see him, he is not a peacemaker, so why he was invited to a peace rally is beyond me. Now Keysar, you can say what you like about me or about Alan Jones or about Brian Wilshire because we’re fair game and yes sometimes we deserve it. But don’t take it out on a young reporter on his own in a crowd of people that you’re whipping up. You are gutless, you’re just trouble mate and I think a lot people agree with my view and they’re not just my people, let me put it that way mate. Your lot that you claim to represent, they think exactly the same Keysar, you’re history mate, see you later.

…

Jason Morrison: G’day

Caller: G;day Jason. All I can say is good on you for fronting this Keysar Trad, it is about time somebody talked to that mealy mouthed person, he is supposed to represent … are ya there?

Jason Morrison: Yeah mate, I’m with you.

Caller: Supposed to represent … How do we know he represents these people?

Jason Morrison: Well look, he doesn’t represent. He calls himself the Islamic Friendship Association. Ahm, he formed the organisation because he used to be with the Lebanese Muslim Association as a paid spokesman and they didn’t want him anymore, he had a falling out, because I think because Keysar became too interested in his own personality than he did about the cause that he was there for and that still to me seems the same. He doesn’t really represent anybody. I’m you know, I do not have any information and cannot get it from anywhere about people who are part of his organisation, he smells to me a bit like the pedestrian council.

Caller: Well, don’t quote me on that one, I have a four wheel drive. Um, well look why do we keep giving him coverage, that is the question that I ask.

Jason Morrison: Well I don’t, I only talk about the bloke when he does things like he did to my staff over the weekend, he can say what he likes about me and other people can run him, I mean Today Tonight did a hatchet job or tried to on us the other day, and that was a back, that basically backfired because it achieved nothing because, I mean he cannot cite specific examples where people like me, don’t, he goes, and let me tell you, I mean this guy has a media monitoring company basically watching about any reference about him or for any reference that he believes will be advantageous towards his cause and there he is straight on the phone straight on the fax pumping out letters of complaint, he is one of the most complaining people around the place and he does nothing to try to address the actual issues, he just wants to sort of hatchet job people who once gave him the privileged position that he thinks he has.

Caller: Well who funds him, that’s the question.

Jason Morrison: Ohh I don’t know, I don’t know.

Caller: I survived, as a particularly, is this what they call oxymoron, the way he carries on and its called the friendship association.

Jason Morrison: Heh heh heh it’s a bit isn’t it, thanks for your call and happy Christmas. 131873. Josh, G’day.

Caller Josh: Ah good mate. How are you?

Jason Morrison: Mate, good thank you, how you going?

Caller: Yeah I’m surprised with this Keysar Trad, he wants to um, keep, keep Australians not talking, like if they could silence you guys, well or silence anyone else who is talking about the way things are really happening out there. I was surprised. I live in the Sutherland Shire and in the Leader there was an article in the paper and a Muslim Cleric or what ever he was, he came out there and, he looked like he stepped out of the cage, ten years ago, but anyway …

Jason Morrison: Well hand, hang on, wo wo wo that was unnecessary, that was totally unnecessary Josh.

Caller: Well what about what he said. He said, to the Christian people, do unto others as others would do unto you.

Jason Morrison: Yeh.

Caller: And to the Muslim community he said just because these people hate you don’t force them to um make you do anything bad. Well why would he say that? Why wouldn’t he just say do unto others to both communities?

Jason Morrison: Yeh that’s right that’s right, and Josh the trouble is, and you’ve got a good point there this is where these people get you …”

The plaintiff speaks at a rally

6 The broadcast followed a rally which was attended by many people and took place in Hyde Park in Sydney. It was promoted as a “peace rally” and was intended as a response to the events known as the “Cronulla riots” which occurred some days previously. The riots were perceived by many people as a confrontation between adherents to the Muslim faith and persons of Caucasian heritage. As I understand the situation the rally was intended to try and calm the situation.

7 There are estimates that some 5000 people attended the rally. There were a number of speakers, the plaintiff being one of them. Media outlets were present throughout the rally and a journalist from the defendant company was present and recorded proceedings. There is film of the rally which was tendered in evidence. It clearly shows a 2GB microphone, together with other microphones, close to the platform from which the plaintiff spoke. During the plaintiff’s speech the journalist does not retreat and no doubt it is for this reason that the defendant has conceded that imputation (a) is not true.

8 A transcript of the plaintiff’s speech, together with comments made by members of the crowd taken from a video of the occasion was tendered. It reads as follows:

What I see today is most heartening for me.

I never lost my faith in the great people of this nation and if a handful of students can muster so many thousands of true Australians here today, then this is a poke in the eye of those racist rednecks in tabloid journalism that for a whole week could only muster 5000 people filled with hatred.

For almost ten years ago, almost ten years, the ugliest government in the history of this nation has been attacking everything they hold sacred.

They have fuelled hatred with patriotic fervour. Through nationalistic racism and made so many people forget their common humanity.

Their common humanity, our common humanity transcends ethnic differences, it transcends religious differences, it is what makes us a step above the animal kingdom. But this racist government, Federal government, is taking us back to the level of being animals attacking each other.

^"

Stop this ethnic scapegoating that has been building up for nearly ten years now and this signal to his lackey, his supporters, in the worst aspects of tabloid journalism, they seem to be regularly giving them the green light to attack communities, to attack minorities and to keep covering up for his inefficiency and mismanagement through blaming everything on minorities in this country.

Crowd:
What about 2GB?
What about 2GB?
What about Alan Jones and 2GB?
Shame
Shame

Crowd:
2GB

This embrace, that tells us racist criminals, those criminals who have turned Australian against Australian, have turned human being against human being, their racism and their hatred is going to backfire on them. And these people play dirty, they play very very dirty, and I stand here as a Muslim, as a Muslim, you can look at me as the face of many Muslims in Australia, of Muslim men, of Muslim women, of Muslim children, all of whom are suffering as a result of the racist actions of predominantly one radio station, predominantly one radio station that is

Crowd:
2GB, 2GB
Arrest 2GB
Arrest Alan Jones
Arrest Alan Jones

Why isn't this government

Crowd:
To Jonesy

Obviously, obviously they are not serious. The sedition provisions are not meant for people who support the government's racism. This government seems to govern, seems firstly to fabricate a certain scenario, manufacture public opinion, then govern by the opinion and not by the public interest. And when is to make them accountable to make sure they start listening to the, ah, and analysing the public interest and governing by the public interest. There is so much that they have done to us over the last five and a half years. Whether it's the treatment of asylum seekers, or the invasion of other countries, the lies about the weapons of mass destruction.

The ?? before ??, the lies about children overboard, the assault on our industrial relations, the assault on our working privileges ??. And to cap it all off they have legislated to eliminate many of our basic human freedoms. And that, that is a serious effort at transforming Australian society into the cattle that they would like to herd, and we are not cattle and we will resist and we will continue to resist and we will continue to say no to these people.

We have a census next year, we have a census. And, these racist rednecks in the Federal Government, these evil fearmongers, these people who are turning Australian against Australian have raised alarm bells that Muslims are one and a half per cent of the Australian population. What I would like to do as a sign of protest, for their religion put "I am a protest Muslim"

Not a practising Muslim, write it in there even though it doesn't fit, they ... on form, it doesn't matter. Send the message I am a protest Muslim in solidarity with the Muslim community. I won't expect you to pray five times a day but please receive that message to these people, to say the more you try to drag us apart the more that we will come together, the more that we will embrace each other

Again, should we, each and every one of us should be proud of this turn out today. If those creeps with their incredible resources after a week of racial hatred and incitement can only whip up five thousand people and make them behave in such an ugly manner. Then with our limited resources to bring so many beautiful faces together, we are challenging them and we will win, we will win against these racists and we will restore respect love and harmony for this great nation. Thank you.”

A serious defamation

9 As the imputations found by the jury make plain, the defamation of the plaintiff was serious. Mr Trad did not himself give evidence regarding damages. However, Mr Trad’s wife, Hanifeh Trad, and two daughters gave evidence as to the hurt to the plaintiff’s feelings. The plaintiff’s wife said in evidence that the plaintiff was “very upset indeed”, that the number of invitations received by herself and the plaintiff had dropped down, and that “it has been very, very hard for him to cope with the matter.” Sanna Trad, the plaintiff’s daughter said that:

“Well I mean I think that he has definitely been a lot more upset, a lot less motivated when it comes to doing community work, even when it comes to speaking in public… [the plaintiff] is really upset about it and ever since it has happened he still feels tormented by it, hard done by”.

10 Hala Trad, another daughter of the plaintiff’s gave similar evidence that the plaintiff has been “generally more unhappy and upset.”

Truth and contextual truth

11 Both the defences of truth pursuant to s 15 of the Act and contextual truth, pursuant to s 16 of the Act raise questions of fact. The defendant bears the onus of establishing on the balance of probabilities that each of the imputations sought to be justified is substantially true.

12 In most cases where a court is required to determine questions of fact, including whether or not an imputation is true, the answer will be reached by consideration of relatively uncomplicated issues of primary fact. Where a defendant pleads that a plaintiff has committed a crime the court will be required to determine whether the alleged event occurred. Where the imputation consists of conduct which can be measured against an identifiable social or professional standard, for example, whether the plaintiff was negligent, the court will apply its understanding of the appropriate standard to resolve that issue.

13 A number of the imputations pleaded in the present case raise relatively straight forward factual questions. However, imputation (g), that “the plaintiff is a disgraceful individual” raises questions of some complexity.

14 The Macquarie Dictionary meanings of the word “disgraceful” include “shameful”, “dishonourable” and “disreputable”. In the present context the plaintiff’s conduct must be assessed having regard to general community standards which exist in the Australian community. It will be immediately obvious that conduct which would lead the ordinary person to describe an individual as “disgraceful” at some point in history may not make that person disgraceful at some other time in history or in a different society. It is not difficult to identify conduct which illustrates this proposition. No doubt in the 19^th century a woman who had a child out of wedlock would have been considered disgraceful. This would not be the case today. A woman wearing a bikini in public before World War 2 would have been considered disgraceful but such costumes are generally worn by women on beaches today. Standards of dress which would have been considered disgraceful in the 19^th century, such as women wearing trousers, have become accepted as the norm in the present day. Family or living arrangements which would have been considered disgraceful in the past, such as inter-racial or same sex relationships, and the cohabitation of unmarried couples are no longer perceived as dishonourable. The content of certain literature or films which was considered to be disgraceful in the early 20^th century including D H Lawrence’s novel, Lady Chatterley’s Lover, would not be generally described in that manner today.

15 The question whether a plaintiff is a disgraceful person raises issues which are analogous to those that arise when the question is whether a particular imputation is defamatory. In Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506-507 B the High Court, Brennan J with whom Gibbs CJ and Murphy, Wilson and Stephen JJ agreed that the defamatory character of an imputation was to be determined by “hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation that they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation.” Brennan J with the agreement of Gibbs CJ and Stephen, Murphy and Wilson JJ said that:

“the moral or social standard by which the defamatory character of an imputation is determined is not amenable to evidentiary proof; it is pre-eminently a matter for the jury to give effect to the standard which they consider to accord with the attitude of society generally.”

16 Importantly the court emphasised that the “defamatory nature of an imputation is ascertained by reference to general community standards, not by reference to sectional attitudes.” In Radio 2UE Pty Ltd v Chesterton [2009] 8 HCA 16 French CJ, Gummow, Kiefel and Bell JJ confirmed at [43] the point made in Lamb that any standards to be applied must be those of the general community. (However, see also the observations with respect to sectional attitudes in countries such as Australia with an accepted cultural diversity).

17 The defendant submitted that it would be anomalous if the principles governing the question of whether an imputation is defamatory differed from those governing the analogous question of whether an imputation which required an evaluation of the qualities of a person was true. Where, as in the present case, the imputation is that “the plaintiff is a disgraceful individual”, the approach of a court should be the same when determining whether the imputation is defamatory and whether it is true. Both questions require the application of general community standards. To my mind this submission should be accepted.

18 In Rivkin v Amalgamated Television Services Pty Ltd [2001] NSWSC 432 Bell J referred to Lamb for guidance on the question of whether the imputation that the plaintiff had engaged in homosexual intercourse with a man was reasonably capable of being defamatory. Her Honour said at [26]:

Lamb

19 In Cairns v John Fairfax & Sons Ltd (1983) 2 NSWLR 708, the Court was required to consider whether a jury verdict was perverse when it found that a newspaper article contained the imputation that the plaintiff had been adulterous but that this imputation was not defamatory. Hutley and Mahoney JJA found that it was not whereas Samuels JA held that it was perverse. Mahoney JA said at (719-720):

“It was in my opinion, open to the jury to conclude that such a reader would not see every act or association which was inconsistent with the obligations of a man’s marriage as being (to use a term which I mean for this purpose to be equivalent to defamatory) discreditable. There are, of course, some acts or associations inconsistent with the moral or social obligations of the marriage state which would be seen as necessarily discreditable. But not all of them must be seen to be so. Within broad limits, it is in such a case as this for the jury to determine what, in the relevant society, is the view of reasonable or right-thinking people on such a matter. I do not think that the jury in this case would be going beyond proper limits if it concluded that not every breach of the relevant obligations of marriage would be discreditable.

But was it open to the jury to conclude that a sexual association in breach of such obligations would yet not be such? I think that it was. Such a question is not to be answered by reference to the current religious or ethical principles, as such. The defamatory nature of an imputation is to be judged by reference to the general community standards.”

20 In Rivkin, as Bell J indicated, there was controversy as to the role that legislative provisions should play in determining the content of the common standards held by the hypothetical audience of ordinary reasonable viewers. Although not determinative, legislative change may reflect the community’s attitudes to social and moral issues. In the present case the defendant submitted that some aspects of the plaintiff’s conduct were totally prohibited by legislation, in particular the Anti-Discrimination Act 1977 (NSW), the Sex Discrimination Act 1984 (Cth), the Racial Discrimination Act 1975 (Cth) and the Disability Discrimination Act 1992 (Cth). It was submitted that, even if a section of the community held views consistent with those expressed by the plaintiff, the fact that the publication of those views was a breach of the legislation could inform a decision as to whether the plaintiff was a disgraceful person. I accept the submission. The question is not whether a section, even a substantial section of the community shares the plaintiff’s views. Rather it is whether, taken as a whole, the plaintiff’s expression of his views and his other acts would cause right thinking members of the community, applying general community standards, to conclude that the plaintiff is a disgraceful person.

Defences of truth and contextual truth

21 The defendant draws upon a number of sources to found its submission that the relevant pleaded imputations are true. They are comprised, in the main, of statements made by the plaintiff either on his own behalf or in response to or by way of commentary on the statements of others. I consider below those which are in my view relevant to the issues in these proceedings. The plaintiff has for some years maintained a website where he has expressed his own opinions and provided access to material written by other people. The defendant emphasised the plaintiff’s close association over a period of time with Sheikh Taj el-Din al-Hilali (“Sheikh Hilali”) who in 2006 was the Mufti of Australia. In that role Sheikh Hilali made many public pronouncements, some of which proved highly controversial. The plaintiff publicly commented upon many of them. When he gave evidence he said that he had been translator for Sheikh Hilali. When interviewed on radio on one occasion he said that he was “not paid to defend the Mufti” but said that when he commented he was “speaking as a friend.”

Matters of credit

22 The plaintiff gave evidence and was cross-examined at some length. His evidence was criticised by the defendant’s counsel. It was submitted that he told a number of lies and that his approach to the giving of evidence was dishonest and disgraceful. Many of the criticisms arise from evidence which he gave about various statements he has made or articles he has written.

23 I discuss below most of the matters which were discussed with the plaintiff when he gave his evidence. I am satisfied that many of the criticisms made of his evidence are justified. I came to the view that the plaintiff attempted to frame his responses in a manner which he believed would suit his interests in the litigation at times modifying his true belief. Some of his answers were not truthful. The plaintiff was not a reliable witness.

24 On one occasion when reminded that his personal website included a link to Radio Islam which provided a link to Mein Kampf the plaintiff said he did not know who had authored Mein Kampf. The plaintiff is obviously conversant with many works of literature, history and theology, at least those with a particular “right wing” leaning. His suggestion when giving evidence that he did not recall that Adolf Hitler wrote Mein Kampf was disingenuous. I am satisfied that he was attempting to avoid the the criticisms which the defendant made of him.

25 During his evidence the plaintiff persistently refused to concede that he had attacked 2GB in his speech at the rally or even that he had referred to 2GB. I am satisfied that his answers were dishonest. He sought to make a distinction between criticising someone and attacking them on the ground that criticisms do not name the victim. This statement was plainly absurd. The plaintiff repeatedly refused to address the question whether he was referring to 2GB in his speech by saying that he did not mention 2GB. The plaintiff denied that he understood that the crowd would have understood him as referring to 2GB. This position was untenable. There can be no doubt that he would have been understood by everyone present as referring to 2GB. The plaintiff’s lack of truthfulness was emphasised by his denial that when he said “this station yes it is winning the ratings” he was responding to the crowd, which had just cried out “2GB.”

26 When he gave evidence the plaintiff denied that his references in his speech to “racist criminals” and “playing dirty” were directed to the defendant. In light of the whole of the speech the denial cannot be accepted.

Sheikh Hilali’s speech in October 2006

27 In 2000 a gang rape in which some male members of the Skaf family were involved was committed. There were a number of trials which resulted in very significant sentences for the offenders. Both the trials and the appeals attracted considerable publicity in which the perpetrators were identified as members of the Sydney Lebanese community.

28 In about October 2006 Sheikh Hilali made a public speech at the Lakemba Mosque. In the course of that speech he said:

“If you take a kilo of meat, and you don’t put it in the fridge or in the pot or in the kitchen but you leave it on the plate in the backyard, and then you have a fight with the neighbour because his cats eat the meat, you’re crazy. Isn’t this true?

If you take uncovered meat and put it on the street, on the pavement, in a garden, in a park or in the backyard without a cover and the cats eat it, is it the fault of the cat or the uncovered meat? The uncovered meat is the problem. If the meat was covered, the cats wouldn’t roam around it. If the meat is inside the fridge, they wont get it. If the meat was in the fridge and it (the cat) smelled it, it can bang its head as much as it wants, but it’s no use. If the woman is in her boudoir, in her house and if she is wearing the hijab and if she shows modesty, disasters don’t happen. That’s why he said she owns the weapon of seduction. Satan sees woman as half his soldiers. ‘You’re my messenger to achieve my needs’. Satan tells woman; ‘you’re my weapon to bring down any stubborn man. There are men that I fail with. But you’re the best of my weapons.’ The woman was behind Satan playing a role when she disobeyed God and went out all dolled up and unveiled and made of herself palatable food that rakes and perverts would race for. She was the reason behind this sin taking place.”

29 The plaintiff admitted that he made comments upon this speech which included comments made to the media outside the Lakemba mosque. The speech generated such controversy that the Mufti’s health was affected and he was admitted to hospital. The plaintiff also made comments about the speech outside the hospital. The plaintiff admits that his comments included that:

“The Mufti’s words must be taken in context; it really doesn’t work when you try to translate it;’ we need to look at the broader context. In Islam, men and women should avert their gaze at all times.”

30 The plaintiff also said of the speech:

“It’s out of context. He was making a speech about sex outside marriage. He was trying to discourage his flock, Islamic people, from having sex outside marriage.”

31 He said that the Mufti was trying to say to men and women “don’t provoke sexual attention” and “if you behave in a sexual way, see how much trouble you can get into.”

32 He also said of the Mufti’s speech “he was saying, women can be guilty of trying to attract attention so Muslim women should cover up. Obviously if she is not a Muslim this speech isn’t relevant to her.” He said that the Islamic religion says “you should not look at women, you must not touch them, so obviously, you can’t rape them.” He admitted that he said:

“The scanty dress might seem like an invitation, that’s what he said and that invitation must be resisted. He was trying to encourage his flock towards modesty and chastity.”

33 Apart from the portion of the speech which I have set out above Sheikh Hilali concluded his remarks with a reference to a “merciless judge who gives you 65 years.” He said:

“But in the event of adultery the responsibility falls 90% of the time with women. Why? Because the women possesses the weapon of seduction. She’s the one who takes her clothes off, cuts them short, acts flirtatious, puts on make-up and powder and goes on the streets dallying. She is the one wearing a short dress, then a look, then a smile, then a word, then a greeting, then a chat, then a date, then meeting, then a crime, then Long Bay jail, then comes a merciless judge who gives you 65 years.”

34 There are aspects of Sheikh Hilali’s speech with which some people in the Australian community may have sympathy. There are people who believe that some young girls dress in an unnecessarily provocative manner and voluntarily allow themselves to become involved in situations where they are exposed to significant risk of sexual assault. However, right thinking members of the Australian community would reject a statement that suggested that a woman is responsible for her rape. When that statement is illustrated, as the Sheikh did by reference to exposed cat’s meat, effectively describing human behaviour by reference to the instincts of animals, the majority of people will be grossly offended. The evidence in this case of the response of community leaders including the Prime Minister, the Premier of New South Wales and many other community leaders was one of universal outrage and condemnation of Sheikh Hilali.

35 Some of the plaintiff’s statements in reference to Sheikh Hilali’s speech are unexceptional, however a number are not. To my mind there can be no doubt that the Sheikh intended his remarks to be understood in the context of rape. This is plain not only from the primary content of his speech, to which I have referred, but also the closing reference to the jail sentence imposed by a “merciless judge”. The plaintiff’s attempt to explain the speech as an attempt to discourage Islamic people from having sex outside marriage is disingenuous. His suggestion that Sheikh Hilali was directing his remarks to Muslim women alone and was not offering advice to the general community is in the same category.

36 There are a number of matters in the speech which indicate that Sheikh Hilali meant to be understood as saying that women are substantially responsible for rape. They include the reference to “fault”, “the uncovered meat being a problem”, “if the woman is in her boudoir, in her house and if she is wearing the hijab and if she shows modesty, disasters don’t happen”, and “made of herself palatable food that rakes and perverts would race for.”

37 The plaintiff gave various interviews with respect to the Sheikh’s speech during the course of which he accepted that the translation which had been made of it was accurate. Although he appeared on a variety of radio and television shows and gave various press interviews, he never condemned the speech. When he gave evidence he said that he disapproved of the speech insofar as it blamed women for adultery and called women “Satan’s soldiers.” When he was challenged to produce a copy of any article in which he was reported as condemning the speech he produced one document which he ultimately accepted did not condemn the speech. I am satisfied that on various occasions the plaintiff was attempting, in a clumsy way, to defend Sheikh Hilali who had found himself embroiled in a significant public controversy.

38 When interviewed the plaintiff on occasions attempted to claim that the Sheikh’s words had been taken out of context. At one stage he attempted to justify the confusion as arising from the same kind of difference in meaning as exists between the meaning of the words “mate” and “rooting” in Australia and the United States. However, he did not identify any part of the text of the speech at any stage which justified this remark. The proposition is to my mind untenable.

39 On one occasion when the plaintiff was interviewed on radio by Leon Delaney he sought to place the Sheikh’s words in the context of an educational statement. The following exchange occurred:

“Delaney: And yet at the same time the remarks that he made that related to a judge without mercy were quite clearly referring to Bilal Skaf and his colleagues and seemed to suggest that they were badly done by.

Plaintiff: Well this is what I meant by saying fire and brimstone examples. He is telling the parents basically what better way to encourage the parents to educate their children about abstinences … your child can get 65 years if he engages in any form of sexual harassment that might lead to something worse. So tell your children to abstain, tell your children to abstain otherwise this is what is going to happen. So this is what I mean by fire and brimstone examples to drive home a point of abstinence and modesty.”

40 When cross-examined the plaintiff was asked whether the remarks relating to a “judge without mercy” referred to Bilal Skaf. Despite being made aware of the Delaney interview his response was “it may have been” and then “I don’t remember”. These responses cannot be consistent with his own statement in the Delaney interview and the reference to the 65 year sentence. I am satisfied that this was a dishonest attempt to separate himself from knowledge of the content of the speech.

41 To my mind, any suggestion that the speech was concerned with educating boys in relation to the sexual harassment of women is untenable. The same description is appropriate in relation to the suggestion which the plaintiff made that the Sheikh’s comments comparing women to meat were “not meant in a derogatory way”. On at least one occasion the plaintiff claimed that the Sheikh was being unfairly victimised by the media and suggested that the criticisms of him were racially motivated. On another occasion he claimed that the “cat’s meat” portion of the speech was a literary allusion by a respected literary figure. On another occasion he described the “cat’s meat” allusion as “euphemism”. On occasions he described the Sheikh “as a great man” and a scholar of great repute who had made Australia the envy of many countries.

42 I am satisfied that many leaders in the general community as well as members of the Islamic community had no hesitation in condemning the speech. The plaintiff did not condemn the speech but consistently defended it and attempted to portray the speech as a responsible moral lesson. The only appropriate response to Sheikh Hilali’s remarks by a person holding values acceptable to the general Australian community was to condemn the speech. The plaintiff did not take this course.

Controversy in relation to the stoning to death of a woman for adultery

43 In about August 2002 it was reported in the Australian press that a woman had been found guilty of adultery in Nigeria and sentenced to death by stoning while her male partner in the alleged adultery was found innocent. The plaintiff prepared an article for publication in the Daily Telegraph discussing this issue. It is apparent that the plaintiff was concerned to defend Islam and Australian Muslims from what he perceived to be unjustified criticisms. In the article he wrote:

“So a woman who accused a man of engaging in extra-marital consensual sex with her goes to court with a child she claims to be the result of her infidelity so that she can get the court to force him to marry her.

The man meets the evidentiary requirements that prove his innocence, the court, tells the woman to go away, we cannot penalise you for defamation and we cannot penalise you for infidelity because whilst you may be guilty, your child is innocent and we do not wish to deprive a suckling child of his mother’s breast.

There is an old Islamic principle, established during the days of prophet Muhammad; a woman came to him asking to be cleansed of adultery, as an act of mercy, he used her pregnancy to waive the penalty. He released her because the penalty cannot be applied whilst she is pregnant. This was her chance to repent privately, she went away a free woman and sure enough, after she gave birth, she returned seeking the court’s sentence. The prophet again sent her away as the child has a right to be suckled – again giving her the chance to repent privately – she was not pursued by the court, she was left to her own discretion. She came back again, after the child was weaned. Again, the prophet would not administer the penalty, he waited until a suitable family would volunteer to adopt the child, only then did the court administer the penalty. The prophet then praised this woman: “her repentance was so great, it could wipe the sins of an entire city.” There was no inquisition, there was no requirement for her to inform on her lover, she was treated with dignity and respect throughout the process and she was certainly given chance after chance to change her mind. These moving types of repentance prompted him to repeat the advice to people to repent privately, because Allah is great and with Allah, sincere repentance completely absolves a person of past sins.

On issues of personal morality that do not cause harm to others, Islam encourages private repentance without making a public admission. However, if someone confesses one of these sins and seeks the penalty, such person has the option to change his/her mind even whilst the penalty is being inflicted. The only instance where the penalty must be applied is where the person is caught in the act by the required number of witnesses and these witnesses go forward and inform, though, the Islamic advice is not to inform but to counsel the sinner privately.

So the court in Nigeria, bound by this precedent and under Sharia, the confessor may not be detained and remains free to change her mind and keep her infidelity private in order to avoid the penalty.

A great act of mercy, a provision in Islamic law that circumvents the penal provisions, to always try and find a way out, an avenue for people to privately repent – unfortunately, also it would seem, the court in Nigeria provided ammunition to ignorant hate-mongers to twist facts and attack Islam and promote hatred of Australian Muslims. Then follow the letters from the “experts” who jump at the opportunity to crawl out of the woodwork and publicly proclaim their own ignorance and bigotry.”

44 The plaintiff’s thoughts are difficult to fully comprehend. However, he does not at any stage condemn the fact that the relevant woman was condemned to death by cruel means. His comment that “the court in Nigeria provided ammunition to ignorant hate-mongers to twist facts and attack Islam and promote hatred of Australian Muslims” can only be understood as a defence of the outcome from the proceedings in the Nigerian court. Because that outcome would have resulted in the death of the woman a defence of the court must be understood as a defence of the law which it enforced.

45 It will be obvious that the stoning to death of a woman for adultery is completely unacceptable to right thinking persons in contemporary Australian society. When he gave evidence the plaintiff said that he did not agree with a penalty of stoning for adultery. However, he could give no explanation as to why he failed to advance this position in his article.

46 When cross-examined the plaintiff was asked about his article. He denied that the references to “the penalty” in the passage I have extracted were references to stoning to death. His denial is untenable and in my opinion this evidence was dishonest. He said that he believed the sentence imposed by the Nigerian court was wrong and agreed with senior counsel that it was “utterly barbaric.” Notwithstanding that he adopted this position in the witness box I am satisfied that the article he wrote was intended as a defence of the outcome in the Nigerian court. I do not believe that the evidence he gave was truthful and rather believe that it was coloured in an endeavour to indicate that his current position was not out of step with the general Australian community.

Interview with Leon Delaney

47 As I have indicated the plaintiff was interviewed by Leon Delaney on Radio 2SM. The interview was concerned with the speech by Sheikh Hilali. In that interview, as he had done on other occasions, the plaintiff sought to defend the Sheikh’s speech saying at one stage “all we are talking about is the context and he was quoting a literary figure who is similar to Shakespeare using fire and brimstone type of examples to promote modesty and abstinence.” In order to gain an understanding of the nature and extent of that support it is necessary to reproduce a significant portion of the transcript of the interview his support of the Sheikh would be unacceptable to right thinking members of the Australian community.

48 The relevant extracts are as follows:

“Delaney: Nevertheless, to draw the comparison to women to uncovered meat is extraordinarily unsavoury in anyone’s language, isn’t?”

Keysar: Look I totally agree with you, but again he was quoting that literary figure and he wasn’t saying women are like that, he was using an example and analogy, and he apologised for that analogy. He knows that that analogy does not sit well in a different context and a different setting. He said, I am talking to a group of parents, if you speak Arabic you will understand that I was giving an example, Outside that context … I can guarantee to you … One of our favourite words in Australia, the word “mate”, you take … American it is something else altogether. You take the word that the Americans use for cheering or for barracking, and bring it … something else altogether. So there are some words, particularly on … and there is another context and another dialect in another country, even within the same language that means something different altogether.

Leon: And yet at the same time the remarks that he made that related to a judge without mercy were quite clearly referring to Bilal Skaf and his colleagues and seemed to suggest that they [were] badly done by.

Keysar: Well this is what I meant by saying fire and brimstone examples. He is telling the parents basically what better way to encourage the parents to educate their children about abstinence ... your child can get 65 years if he engages in any form of sexual harassment that might lead to something worse. So tell your children to abstain, tell your children to abstain otherwise this is what is going to happen. So this is what I mean by fire and brimstone examples to drive home a point of abstinence and modesty.

Leon: There were other remarks attributed to the Sheik as well in relation to support for Jihadists in Afghanistan and Iraq and were quite clearly easily interpreted as being supportive of insurgents who could very well be combating Australian forces.

Keysar: Well to put that in a context. You might recall last year when the Mufti left Australia to go and save the life of Douglas Woods - to make a statement - that showed understanding to the abductors so that he can get a stay of execution. If you take those statements in a different context it can be read exactly the way that you are saying. He has made another statement to say that he wants a stop to all the suicide bombing, all the internecine or factional violence in Iraq and he is telling these people that this is not defending your country, this is killing innocent people, it has to stop. So in a different context we have to look at the substance and the aim of the message.

The aim of the message was to get people to stop suicide bombing and to stop this internecine violence. And we should not really nitpick when we know that the aim is one thing and then we try to find hidden meaning in the next thing. There is no hidden meaning. His message is one about saving lives. He risked his life to save a fellow Australian who was not Muslim, so in that ... we know that this man is not supporting any form of violence anywhere in the world.

Leon: There were also remarks referring to the influence of the United States and how he would not rest until the influence of George Bush and the United States was eradicated from the world.

Keysar: Well see I was there when he made that comment and I said to him, look please don't make any comment because at this time you know any word you say might be seen in a different light and when he was asked by the journalist - Will you resign sir? Will you resign Mufti? Will you resign? And he said not until the White House is cleaned out. Now when I heard that comment I thought, you know, it sounded to me like a gaff, but when I thought about it I thought I can see the hypocrisy between the level of media attention given to this frail old man who has apologised and explained himself and the attention that is given to the big world powers that are engaged in military operations in other countries where innocent people as well as combatants are being killed, where we have got some of the most inhuman prison conditions that one can even dream of such as Guantanamo Bay and Abu Ghraib in Iraq and all these different prisons around the world, and secret detention centres as well, why aren't we focusing on that? That gives clear violation of human rights. What he said was a comment that was taken out of context and resulted in an unequivocal apology from him. So why are we focusing on this poor old man who has apologised for any offence taken and not focusing on policies that have wreaked havoc in a number of different countries around the world?

Leon: That being the case that merely supports the notion, as many people have suggested that he will say one thing to an English speaking audience and another thing to his own Muslim congregation.

Keysar: That comment would only be fair if the substance of the message was different but if the substance of the message is the same the only difference is that when he addresses people who don't understand him in Arabic the words that are used are such that there cannot be any ambiguity in the English language, when he is addressing Arabs then he is free to use eloquent expression, words that carry depth and words that carry meaning. And what we should look at is how those Arabs have interpreted it and the way they have interpreted it is a simple message of modesty and abstinence.

Leon: Can you be sure that that is it? Because there seems to be so many young Muslims who seem to be somewhat confused about what their place in society is?

Keysar: I am glad that you asked that question and he was not addressing these people, he was addressing oldies who were fluent in Arabic, he was addressing the parents, and the grandparents. It was late at night, there was the dwindling crowd that remained in the mosque which was mostly made up of oldies who were fluent in the Arabic language. The young ones, this is our fault as parents, we are not focusing on proper Arabic education because we think they should learn English as their first language, and you will find most Muslim families their children are fluent in English and they have very little attachment to their mother tongue, or their parents' mother tongue. As a result if they hear it and it wasn't addressed to them, then they are not likely to understand the message unless there is an interpreter. Now they were not there, they are hearing it second hand, third hand in some cases, and they are reacting to it on that basis and I say to these people - and I look at them as my younger brothers and sisters - give the man a fair hearing, put it in the context, ask your parents how they understood it, and don't pass judgment unless you have to. And when he has given an explanation and an apology then as fair minded Australians we have to consider that, yes that is what he meant, and that is how our parents understood it, and we must show our support and love and forgiveness.

Leon: Do you not accept that these teachings are and have been inflammatory and that what you are trying to do now is put as much positive spin on it as you can on it to try and rescue the situation?

Keysar: Well let me make it very clear. I am not paid to do this. I am not paid to defend the Mufti. I am not paid to defend anybody. I am speaking as a friend who has seen an injustice being done. And as a result by speaking up I have made myself unpopular because I am supporting an unpopular stance. But for me it is justice. I am doing this as a matter of conscience because it is the right thing to do. I am making this explanation because I think that Australia deserves to know the truth in all this and as fair minded people we hate to pass the wrong judgment on anybody. I know that I am speaking on behalf of every fair minded Australian that I know and those that I don't know. We hate to pass the wrong judgment on any person and we love to give everybody a fair hearing and what I am doing is giving this explanation so everybody can be able to say I have given the Mufti a fair hearing.”

Interview with John Lyons

49 The plaintiff was interviewed by Mr John Lyons who wrote an article which was published in The Bulletin. Mr Lyons asked about the Skaf rapes. During their trial for the crimes it was alleged that one of the perpertrators told the victim he would “do you Leb-style.” When reminded of this the plaintiff was reported to have said:

“I’ll tell you this joke – even though there is nothing to joke about.

This man goes up to a prostitute and says how much do you charge. She says $50 and he says ‘I’ll give you $100 if you let me do it Leb-style’ and she says, “Nah go away.’ Then he goes to a brothel. He again asks how much do you charge, she says $100 and he says, ‘I’ll give $150 if I can do it Leb-style’. She says, ‘get lost’. He goes to a more expensive brothel until he eventually finds one that says yes. She’s happy to take extra money. After he finishes, she says, ‘Well that is the same as everyone else’. She says, ‘what’s Leb-style?’ And he says, ‘I’ll pay you tomorrow.’

50 The plaintiff is then reported to have said:

“What I’m trying to illustrate is that it doesn’t mean anything. It means stupid young boys who would just say anything in the circumstances to try to make themselves appear cool.”

51 The plaintiff was questioned about this “joke” when he gave evidence. He said in answer to an interrogatory, and repeated the remark in his evidence: the rapists were “stupid young boys”. Although in his evidence he described the crime as abhorrent, it is apparent that he sought to diminish its significance when interviewed by Mr Lyons. To seek to explain the offenders’ actions by reference to a joke, as he did, displayed a callous disregard for the victims of the rape and trivialised the event in a way which I am satisfied would be unacceptable to right thinking members of the general Australian community.

The speech by Sheikh Hilali at the Sidon Mosque

52 In February 2004 Sheikh Hilali made a speech at the Sidon Mosque in Lebanon. The plaintiff had a video tape of the speech, from at least May 2004. A translation of the speech made by the Australian Embassy recorded the Sheikh as saying, inter alia:

“Don’t be surprised if one day you hear the Muezzin calling for prayer and saying ‘Allah Akba (Allah is great)’ from the top of the White House. September 11 is God’s work against oppressors. Some of the things that happen in the world cannot be explained; a civilian aeroplane whose secrets cannot be explained if we ask its pilot who reached his objective without error, who led your steps? Or if we ask the giant that fell, who humiliated you? Or if we ask the President, who made you cry? God is the answer.”

53 At another point in the speech the Sheikh is recorded as saying:

“Dear brothers, we need real men to answer the call of Jerusalem and the call of Palestine. Oh half men, if ever you meet you will stab your nation in the back. Jerusalem is calling you, but there is no answer. Al Aqsa is calling you and telling you ‘I’m torn apart.

Children and mothers are crying. The sons of Islam, there is a war of infidels taking place everywhere. The true man is the boy who opposes Israeli tanks with strength and faith. The boy who, despite his mother’s objections, goes out to war to become a martyr like his elder brother.

The boy who tells his mother: ‘Oh mother don’t cry for me if I die. Oh mother, Jihad has been imposed on me and I want to become a martyr. Oh mother, Al Aqsa is imprisoned and I won’t hesitate to help. Oh mother, come and say goodbye for I am going to fight and sacrifice myself. Oh mother, free men defend their honour and consider martyrdom as an honour. Oh mother, I’m going with a stone in my hand to become a martyr …”

54 Parts of the speech were put to air by the ABC during a Four Corners program. In a letter the plaintiff complained to the ABC about the Australian Embassy’s translation of the speech. In that letter he said that there was another and “independent” translation of the speech which had been put to air by SBS News.

55 The plaintiff was asked about the letter when he gave evidence. He denied that he was seeking to defend the Sheikh. However, I do not believe his evidence can be accepted. In his letter the plaintiff complained only about the translation. He made no attempt to disassociate himself or condemn the content of the speech as put to air by SBS. The translation which SBS used was made by Associate Professor Shboul who holds the Chair of Arabic and Islamic studies at Sydney University. Instead of the words “September 11 was God’s work against oppressors” the Professor translated the words as “For concerning the blessings of the 11^th of September I have said ‘God has signs about tyranny, perhaps the least of which is what happened there’.”

56 The plaintiff denied that he endorsed the Sheikh’s remarks as translated by Associate Professor Shboul but I am satisfied that his evidence should be rejected. It is plain that the plaintiff was endorsing at least the version of the speech broadcast by SBS which, inter alia, referred to “the blessings of the 11^th of September.” That statement alone would be abhorrent to almost every member of the Australian community. The plaintiff admitted when giving evidence that he had no recollection of ever publicly condemning the description of September 11 as a blessing.

57 The speech by Sheikh Hilali both condoned and effectively encouraged the use of children as martyrs in the cause of Islam. It is of course tragically the fact that on occasions children have been used as suicide bombers, killing themselves, and on occasions many others. The use of children in this way and any encouragement of such actions would be abhorrent to the general Australian community. I am satisfied that the plaintiff never condemned these remarks. It must be remembered that the plaintiff commonly spoke as a representative of the Muslim community in Sydney. He also on occasions spoke of the work and pronouncements of Sheikh Hilali. In October 2004 a few months after the ABC program went to air the plaintiff said:

“I have worked with Imam Hilali for a long time I have been closely associated with him for five years and I have known him for nearly 20 years, and Imam Hilali, is, in my view, the voice of moderation in this country, and is recognised as a voice of moderation throughout the world.”

58 This could only be understood as a general commendation of the views which Sheikh Hilali held.

Daily Telegraph - debate

59 The plaintiff authored an article which was published by the Sydney Daily Telegraph in relation to a question framed by the newspaper “should Australia be as concerned by the United States as they are by radical Islam.” The article was published on 30 March 2005. The plaintiff wrote

AUSTRALIANS should be more concerned with the United States than radical Islam.

The US has usurped a number of Australia’s traditional markets, has dragged our sons and daughters into its wars and possesses the most dangerous arsenal of weapons of mass destruction not only on Earth, but also in space.

The US is the only nation to have used atomic weapons on civilian cities and used other weapons of mass destruction in its war on terror.

It is the world’s leading designer and maker of the most highly destructive weapons, and its policy of pre-emptive strikes equates with instigating war, making it more and more a pariah state.

Radical Islam, while an anaethema to Islam itself, is made up of no more than a bunch of rag-tag “Dad’s Army” types, fighting for their own survival. It does not possess weapons of mass destruction.

Australia can benefit greatly from having friendly policies towards moderate Islam, as it will improve our relations with our neighbours and offer a constructive, progressive model to the world community.

Keysar Trad is the President of the Lebanese Muslim Association.”

60 The plaintiff was asked about this article when he gave evidence. He said that his reference to “radical Islam” was not intended to include “radical Islamic militants” or “Islamic terrorists.” I do not accept this assertion. His reference to rag-tag “Dad’s Army” types fighting for survival plainly had a military connotation. Both the context of the article – a debate about the United States and radical Islam - and the reference to radical Islam “fighting” and “possess[ing]” weapons can only be understood as a reference to persons who adhere to Islam and are prepared to use weapons to achieve their ends.

61 The plaintiff’s article is critical of the United States. Some of those criticisms would be shared by members of the Australian community. The reference to the United States using atomic weapons is correct. However, the reference to using weapons of mass destruction in the “war on terror” is not. The suggestion that the United States instigates war as opposed to legitimately protecting itself from terrorist attacks would bring forward mixed views in the Australian community. However, to downplay radical Islam and suggest that it is no more than “rag-tag ‘Dad’s Army’ types, fighting for their own survival” would not be acceptable to the Australian community. The plaintiff was effectively suggesting that the United States of America presented a greater threat than radical Islam to the Australian people. This stance would, in my view, be entirely repugnant to the overwhelming majority of people in the Australian community.

The Weekend Australian article: Sheik and Stir

62 In about September 2002 the plaintiff told a journalist:

“Osama bin Laden would have trouble teaching someone to drive a car … how could a man living in a backward country mastermind the hijacking of several planes, with the whole operation going off like clockwork? … I just don’t want to believe Muslims were behind it.”

63 This was an extraordinary statement. It was published in an article in the Weekend Australian which was primarily a story about Sheikh Hilali. In that article the plaintiff was described as a spokesperson for the Lebanese Muslim Association and translator for Sheikh Hilali. When he was asked about these matters in evidence the plaintiff said that he had “no idea” who was responsible for the attacks in New York. Although he said that the perpetrators may have been radical Islamic militants he said that “I don’t know”.

64 I am satisfied that a right minded member of the Australian community would not have accepted these views. Osama bin Laden claimed responsibility for September 11. A suggestion that the terrorist act was not perpetrated by adherents to Islam would not be accepted by Australians whatever their ethnic origin or religious views.

Suicide bombing

65 In about December 2001 Sheikh Hilali addressed a meeting of Islamic scholars in Beirut. An article appeared in the Courier Mail newspaper published in Brisbane on 16 March 2002 which referred to this speech in which the Sheikh referred to suicide bombers. The plaintiff, referred to as Sheikh Hilali’s spokesman, was quoted in the article and accepts that he was accurately recorded to have said “it’s a legitimate term of removing the enemy from the occupied territories” and that “Sheikh Hilali did not condone martyrdom operations or civilian killings outside the occupied area”. He also said that the “misperceptions about the Sheikh’s views were caused by inaccurate translations”.

66 When asked about these matters in his evidence the plaintiff was unable to point to any incident where he had made public condemnation of suicide bombers. In the article he was quoted as saying “they call it martyrdom operations, they don’t call it suicide bombers.” Although the plaintiff accepted that he made the other statements which were reported in the article to which I have referred above he said that he could not recall whether he had made this statement. Given the accuracy of the other statements attributed to him I am satisfied that he did make this remark about martyrdom and suicide bombers.

67 The plaintiff said in evidence that when speaking with the journalist he was only reporting the statements made by Sheikh Hilali at the conference and that he did not himself believe them. I do not accept this statement. I am satisfied that the reported defence of the Sheikh by the plaintiff should be understood as the plaintiff endorsing the Sheikh’s views. When understood in conjunction with the plaintiff’s implicit endorsement of the portion of the Sheikh’s Sidon Mosque sermon concerned with child martyrs, it is apparent that the plaintiff has publicly expressed views endorsing the tactical use of children as suicide bombers. In this respect the plaintiff has expressed views which would be utterly repugnant to the Australian community.

Hezbollah

68 The plaintiff accepted that Hezbollah was at least in part a terrorist organisation which has been proscribed in Australia. In an interrogatory the plaintiff was asked whether or not he made the statement reported in the Bulletin article by John Lyons that “Hezbollah should be taken off Australia’s list of terrorist organisations.” He answered yes. In his evidence he suggested that he was only calling for the delisting of the political wing of Hezbollah as opposed to the military wing. I do not accept this statement. The full sentence in the article reads:

“Trad says Hezbollah should be taken off Australia’s list of terrorist organisations, while accusing the United States of engaging in acts of terrorism.”

69 In an interrogatory the plaintiff accepted that he said that the United States was engaging in acts of terror. In that context, to suggest that he was referring only to the removal of the political wing of Hezbollah from the list of proscribed organisations cannot be accepted. In my opinion a call to delist Hezbollah from the list of terrorist organisations in Australia would be entirely unacceptable to most people in the Australian community.

The Elitism article and the January 2007 speech by Sheikh Hilali

70 In about 1997 the plaintiff wrote an article for publication entitled “Elitism”. It was published in Nida’ul Islam Magazine. In that article he said the following:

“The criminal dregs of white society colonised this country, and now, they only take the select choice of other societies, and the descendants of these criminal dregs tell us that they are better than us.”

71 He also said:

“India, the Asian country which is dominated by the lowest of the low amongst races, a class society which divides its own people into four classes and places people of other faiths, and Muslims in particular as the lowest of the low. The policy of these cow worshippers, and their extermination of Muslims in their countries and inside Kashmir (to the silence of western countries) is one more example of how this feeling of elitism is not restricted to the colour of the elitist, it is a lifestyle of those idiots who have intoxicated themselves with a false feeling of power, and who actively exercise this power against others.”

72 In about January 2007 Sheikh Hilali said in an interview:

“The western people are the biggest liars and especially the English race … The Anglo Saxons who arrived in Australia arrived in shackles. We paid for passports from our own pockets. We have a right to Australia more than they have.”

73 The plaintiff spoke to a journalist about the Sheikh’s interview. He said that the comments of the Sheikh appeared to be a “slip of the tongue.” He also said “I don’t believe he intended to take a swipe at Australian society, I got the impression that he was trying to justify living here to a person that was probing him and ‘those offensive remarks were made when the interviewer challenged him.’ He also said of the Sheikh’s comments that he was about to explain why he stays here despite all the controversy.

74 It is apparent that the plaintiff did not condemn Sheikh Hilali’s words, referring to them as “slip of the tongue”. I am satisfied that he effectively sought to defend them. I am also satisfied that the plaintiff continues to believe that Australians of Anglo-Irish descent are unworthy descendants of “criminal dregs”. I am satisfied that the views which the plaintiff expressed about Anglo-Irish Australians and Indians are repugnant to the general Australian community. Describing Hindu Indians as “cow worshippers” is entirely repugnant to Australian values. Although it must be acknowledged that there is a long history of sectarian conflict in India the views expressed by the plaintiff were offensive to any Hindu living in Australia and in my judgment repugnant to the value of any right thinking Australian.

The plaintiff’s website

75 Sometime prior to November 2001 the plaintiff had created, with the apparent assistance of another person, a website under his own name. On the site there were links to other sites including a Swedish based website called Radio Islam. On his own site the plaintiff had the remarks “Radio Islam, very good articles concerning Islam and Muslims.” It also contained links to websites including the following:

76 In about November 2001, following a complaint from a journalist, the plaintiff removed the link to the Radio Islam site. At the same time he placed a disclaimer on the site in the following terms

The appearance of a link on this site is only to indicate that at the time that I placed the link I considered that there was some useful or interesting or amusing material on the linked site.”

77 A printout from the Radio Islam website was tendered in evidence. It is apparent that it was the vehicle for significant anti-Semitic views. Although the plaintiff said that he was not responsible for creating the link and another person helped him in the creation of the website I am completely satisfied that he was both aware of the link and believed it appropriate to be incorporated into his website. It is inconceivable that he would not be aware of the links on his own site. His disclaimer makes that plain. By so doing he at least authorised a link to a site which not only expressed anti-Semitic views but which at least implicitly expressed sympathy for the views of Adolf Hitler and the Nazi movement.

78 The plaintiff claimed that as at 2001 he did not know that the Radio Islam site supported Holocaust denials or the global existence of Jewish conspiracies. The plaintiff claimed he did not look at every item on his website and may have only looked at the front page. His evidence was that he could not recall whether the link was on his website. The plaintiff agreed he had little choice but to concede that this was an endorsement of what was plainly a racist site.

79 The plaintiff agreed he removed the link to Radio Islam from his website. The plaintiff claimed that he did not know whether he ever clicked on the link even after having been told about its offensive content.

80 The link in question said “Radio Islam, very good articles concerning Islam and Muslims – mainly political”. The plaintiff agreed he had little choice but to concede that this was an endorsement of what was plainly a racist site. When a serious allegation had been made about a link on the website the plaintiff removed it. The idea that through all of this he never bothered to click on the link to view the offending website cannot be accepted.

81 When interviewed by a journalist from the Courier Mail newspaper the plaintiff said words to the effect “there are many Jews who question how many died in the Holocaust”.

82 His reference to doubts with respect to the number of Jews who died in the Holocaust I understand as an attempt to diminish the significance of those events. Although others have written on that topic, the plaintiff’s views must be understood having regard to his apparent sympathies for the views of Adolf Hitler. In my judgment the views which he holds on these matters are unacceptable to right thinking members of the Australian community.

Homosexuality

83 In about 1999 the plaintiff wrote a document which he headed “Response to Supposed Quranic Acceptance of Gays”. The document was written in response to an article apparently written by a student discussing the issue of homosexuality and the beliefs of Islam. The plaintiff’s document is a detailed discussion centred upon the sexual acts of homosexual males and whether or not they are acceptable to persons of the Muslim faith.

117 It was reported in 2006 that the Lebanese Muslim Association wanted to sue the plaintiff for misrepresenting himself as their spokesman. On 7 November 2006 Tom Zreika, President of the Lebanese Muslim Association, publicly accused the plaintiff of defaming him, and misrepresenting that he was still a spokesman for the Lebanese Muslim Association. It appears that the plaintiff had joined the Lebanese Muslim Association in approximately 1999 and was at one stage its president. However, he admitted in oral evidence that by May 2005 he had ceased to have any official role in the Association and that he had not held any such role for at least the previous 18 months.

118 The plaintiff has also been criticised by the various members of the Australian Muslim community for his support and public statements in sympathy with Sheikh Hilali. He was described by Irfan Yusuf as someone who “sugar coated” the words of Sheikh Hilali. It is apparent from these various items that the plaintiff has been the subject of criticism in both the Muslim and non-Muslim communities. Various media commentators and members of the Muslim community have rejected the plaintiff’s views and rejected any claim that he may make to represent sections of that community in Australia.

119 The defendant also relies upon the plaintiff’s propensity to write complaining to various bodies including the Australian Press Council, the Australian Broadcasting Authority, the ABC, NSW government ministers, the Advertising Standards Board, the Anti-discrimination Board and major newspapers. Various of these complaints were rejected by the recipients.

120 In response to the evidence tendered by the defendant on this issue the plaintiff tendered a bundle of newspaper articles which purportedly provided favourable publicity for the plaintiff. However, in none of them is there an endorsement of the plaintiff’s views.

121 Although the plaintiff is a controversial figure and his views are publicly rejected by many responsible persons in the Australian Muslim community I am not persuaded that he is “widely perceived as a pest”. For many people his views would be perceived as those of a person lacking appropriate balance, by a few they may be seen as balanced and by some as a nuisance. Some people would be irritated by the fact that he apparently injects himself into controversies purporting to represent the Muslim community when in fact most Muslims reject him. Indeed, on 10 May 2005 the Australian newspaper reported that the plaintiff had been sacked as president of the Lebanese Muslim Association after a falling out with the spiritual leader of Australia’s Muslims. Notwithstanding that the plaintiff would be disliked and his views completely rejected by many people, the evidence before me does not justify a conclusion that he is widely perceived as a pest. Many people would see him as a pest but before it could be said that he was widely perceived in this manner evidence beyond that tendered in this trial would be required.

Imputation J – the plaintiff deliberately gives out misinformation about the Islamic community

122 In defence of this imputation the defendant relies upon the remarks of the plaintiff with respect to Sheikh Hilali’s sermon at the Sidon Mosque – in particular the reference to September 11 and to secrets that “cannot be explained” and to the “debate” published in the Daily Telegraph and the “Sheik and Stir” article. In each case the plaintiff either defended a view of the Sheikh, or expressed a view that did not acknowledge Islamic terrorists were responsible for the September 11 attacks. The plaintiff’s failure to condemn the Sheikh’s remarks about “cat’s meat” indicates that he holds views which do not reflect the view of the main body of the Islamic community in Australia.

123 There is an ambiguity in the pleaded imputation. The Islamic community is not comprised of persons holding extreme views or who are involved in terrorism, although, of course, it is notorious that some terrorists adhere to extreme Islamic doctrine. Although I am satisfied that the plaintiff has failed to acknowledge those responsible for September 11 as adherents to a radical form of Islam and has failed to condemn some of the Sheikh’s remarks this does not mean that he gives out false information about the Islamic community. Rather it is his failure to acknowledge the origins of some extreme views which is false but this does not have the consequence that the defendant has proved that the pleaded imputation is substantially true.

The public interest

124 Section 15 of the Defamation Act 1974, which is applicable to the present proceedings, provided that it is a defence if an imputation is substantially true and relates to a matter of public interest. The broadcast made by the defendant concerned the plaintiff and his conduct at a public rally. During the course of his speech at the rally the plaintiff made an attack on the Australian government and the media, in particular the defendant’s radio station. There can be no doubt that the response which the defendant made to that attack related to a matter of public interest.

Contextual truth

125 Section 16 of the Defamation Act 1974 provided as follows:

“(1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of.

(2) It is a defence to any imputation complained of that:

(a) the imputation relates to a matter of public interest or is published under qualified privilege,

(b) one or more imputations contextual to the imputation complained of:

(i) relate to a matter of public interest or are published under qualified privilege, and

(ii) are matters of substantial truth, and

(c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff.”

126 The principles which must be applied with respect to the defence of contextual truth were discussed in Hepburn v TCN Channel 9 (1984) 1 NSWLR 386 at 400. They may be summarised as follows:

1. The combined effect of the defendant’s contextual imputations must differ in substance from that of the plaintiff’s imputation to which they are pleaded as a defence;

2. The defendant’s contextual imputations must be conveyed by the matter complained of at the same time as and in addition to the plaintiff’s imputation to which they are pleaded;

Jackson v John Fairfax Publications & Sons Ltd

“The defence of contextual truth accepts that the matter complained of conveys the imputation pleaded by the plaintiff and that no other defence has been established in relation to that imputation; it asserts that the imputation pleaded by the defendant is also conveyed by the matter complained of (such imputation being called the contextual imputation); the defence then asserts that, even though the plaintiff’s imputation is otherwise indefensible, such is the effect of the substantial truth of the defendant’s contextual imputation upon the plaintiff’s reputation that the publication of the imputation of which he complains did not further injure his reputation.”

127 In John Fairfax v Blake (2001) 53 NSWLR 541 at 543 Spigelman CJ said:

“For purposes of determining whether the section 16 defence is capable of being made out, the court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation rather than on the terms of the contextual imputation itself.”

128 The defendant is permitted to plead back the plaintiff’s imputations as contextual imputations: Corby v Channel Seven Sydney Pty Ltd (Supreme Court of New South Wales, Nicholas J, 20 February 2008, unreported, at [217]).

129 In the present case the defendant did not seek to justify imputations (a) or (k). I have found that the defendant has failed to prove imputations (h) and (j). I have found that imputations (b), (c), (d) and (g) were substantially true. I am satisfied that together these imputations have the effect that the publication of imputations (a), (h), (j) and (k) did not occasion further injury to the plaintiff’s reputation. My findings that the plaintiff incites acts of violence, incites racial attitudes, is dangerous and perhaps most significantly is a disgraceful individual occasion such injury that the other imputations are incapable of causing further injury.

130 For these reasons the plaintiff’s claim must fail.

131 Although it is strictly unnecessary to consider the further matters pleaded in the defence I shall discuss them and indicate my conclusions in relation to them.

Qualified privilege

132 The defendant submitted that it was able to rely by way of defence upon its entitlement to make a response to the public attack made upon it. The principles are discussed in Loveday v Sun Newspapers Ltd (1937) 59 CLR 503; Adam v Ward (1917) AC 309, Penton v Calwell (1945) 70 CLR 219; Bass v TCN Channel Nine [2003] NSWCA 118; (2003) 60 NSWLR 251.

133 The defence is available in respect of the occasion and not the communication. The defence of qualified privilege is a defence to the whole matter complained of: Aktas v Westpac [2009] NSWCA 9 at 79-80.

134 In Loveday the High Court indicated that a person who attacks another cannot complain if the other person refutes the attack for the purposes of vindicating themselves. At 515 Starke J said:

“A person attacked has both the right and an interest in repelling or refuting the attack, and the appeal to the public gives it a corresponding interest in the reply. Occasions of this kind are privileged and communications made in pursuance of a right or duty incident to them are privileged by the occasion.”

135 There must be some proportionality between the attack and the response, although a defendant will be granted considerable latitude. The defendant is able not only to defend himself but may do so by way of counter attack. Dixon J said in Penton at 233:

“The privilege is given to him so that he may with impunity bring to the minds of those before whom the attack was made any bona fide answer or retort by way of vindication which appears fairly warranted by the occasion …

The foundation of the privilege is the necessity of allowing the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect. …

It may be conceded that to impugn the truth of the charges contained in the attack and even the general veracity of the attacker may be a proper exercise for the privilege, if it be commensurate with the occasion.”

136 Starke J further said at 250:

“In the main, the words used by the defendant cannot, as a matter of law, be classed as irrelevant to the accusations made. Great latitude must be allowed to a person defending himself, his interests and rights against attacks and accusations made against him, and however violent or strong his language may be, still it is for the jury to determine whether he could not honestly and reasonably have believed them to be necessary for the vindication of himself, his rights and his interests.”

137 In the present case the plaintiff made a serious attack upon the 2GB Radio Station. At the rally on the day before the broadcast, he accused the defendant of partisan politics and of inciting through its broadcasts racist attitudes which culminated in the riots at Cronulla in December 2005. It does not presently matter whether the allegations which the plaintiff made were true. The defendant was entitled to defend itself against them.

138 The plaintiff’s address to the rally included the following passages which were individually and collectively emphasised by the defendant as justifying its response:

139 As I have indicated the plaintiff’s speech was made approximately one week after the Cronulla riots which were events of widespread concern in the Australian community. The charge made by the plaintiff that 2GB and its broadcasters were “racist criminals” who had persecuted Australian Muslims, was a serious matter. The plaintiff’s claim when he gave evidence that he was not attacking the defendant is contrary to the clear words of his speech. The attack which the plaintiff made was in public before a large crowd. The plaintiff himself believed that many thousands were present. Each of the free to air television broadcasters were represented at the rally as well as two radio stations. When the plaintiff made his speech it was being recorded by many microphones and news cameras.

140 I am satisfied that the defendant’s broadcast was a response to the plaintiff’s attack upon it. It included excerpts from the speech, which were recorded by its journalist. I have in mind the following statements which I record by reference to the line in the transcript of the broadcast.

141 In these circumstances I am completely satisfied that the defendant, through the broadcast by Mr Morrison, was replying to the plaintiff’s attack. For this reason, but for the possibility of malice, the defendant was entitled to respond as it did. The attack was expressed in strident terms and justified a vigorous response. The response was, in my opinion, proportionate to the attack.

Malice

142 Malice on behalf of the defendant will defeat the defence of qualified privilege at common law. Malice is present when the motive for defaming the plaintiff:

Roberts v Bass

143 Once a defendant satisfies the court that the communication was made on a privileged occasion, the onus is on the plaintiff to demonstrate an improper motive on behalf of the defendant. This is a burden which cannot be lightly discharged: see Horrocks v Lowe [1975] AC 135 at 150-1. The plaintiff must prove that the defendant acted dishonestly in not using the occasion for its proper purpose: Bass at 38-39. The improper motive must be the predominant reason for the publication: Bass at 41 (see also the discussion in Bass v TCN Channel Nine [2003] NSWCA 118; (2003) 60 NSWLR 251 at [166] where the majority of the Court of Appeal held that proof of knowledge of falsity would generally be conclusive evidence of malice. Spigelman CJ was of the view at [27] that it would not necessarily be conclusion.

144 It follows from the principle that a defendant is entitled to launch a counter attack that the law recognises that a privileged occasion may be used to injure a plaintiff. In appropriate circumstances an attack upon a plaintiff’s veracity will be protected.

145 The plaintiff pleaded malice on behalf of the defendant, alleging that the defendant failed to make proper enquiries before publication. The plaintiff also pleaded that the defendant had pleaded false and misleading particulars of truth. In addition, the plaintiff alleged that the defendant knew the words in the broadcast “including words relating to the intimidation and misconduct towards Chris Glasscock” were false or that it was recklessly indifferent to the truth or falsity of those words.

146 As the defendant emphasised in submissions the plaintiff led no evidence in support of these matters. However, there was evidence from the visual recording of the plaintiff’s speech that the 2GB reporter remained in position in front of the plaintiff during his speech. There was no gesture made by the plaintiff towards him. Nevertheless, the obvious hostility of the crowd towards 2GB and the prominence of the reporter who was holding a microphone which identified him as from 2GB would undoubtedly have made him feel uncomfortable and vulnerable. In these circumstances Mr Morrison may have legitimately but erroneously come to the conclusion that Mr Glasscock, feeling threatened, had withdrawn from a prominent position. Ultimately there is no evidence from which I could conclude that Mr Morrison as opposed to Mr Glasscock knew that his remarks on air were false. Even if Mr Morrison knew that this allegation which he broadcast was false I am not persuaded that the dominant purpose of the defendant in making the broadcast was improper.

147 Accordingly, the plaintiff’s plea of malice must fail. The defendant is accordingly entitled, if it be necessary, to rely on the defence of qualified privilege.

The defence of comment

148 The Defamation Act 1974 abolished the common law defence of comment. However, it provided a defence which is found in Division 7 of the Act. Division 7 is in the following terms:

General

(1) The defence or exclusion of liability in cases of fair comment on a matter of public interest:

(a) is modified as appears in this Division, and

(b) is not available except in accordance with this Division.

(2) This Division has effect notwithstanding section 11.

Proper material

proper material for comment

(2) A statement of fact which is a matter of substantial truth is proper material for comment for the purposes of this section, whether or not the statement relates to a matter of public interest.

(3) The defences under this Division are available as to any comment if, but only if:

(4) There is no special rule governing the nature of the material which may be the basis of comment imputing a dishonourable motive or governing the degree of foundation or justification which comment imputing a dishonourable motive must have in the material on which the comment is based.

Public interest

The defences under this Division are not available to any comment unless the comment relates to a matter of public interest.

Comment of defendant

(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of the defendant.

(2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, the comment did not represent the opinion of the defendant.

Comment of servant or agent of defendant

(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of a servant or agent of the defendant.

(2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, any person whose comment it is, being a servant or agent of the defendant, did not have the opinion represented by the comment.

Comment of stranger

(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is not, and in its context and in the circumstances of the publication complained of did not purport to be, the comment of the defendant or of any servant or agent of the defendant.

(2) A defence under subsection (1) is defeated if, but only if, it is shown that the publication complained of was not in good faith for public information or the advancement of education.

Effect of defence

Where the matter complained of includes comment and includes material upon which the comment is based, a defence under this Division as to the comment is not a defence as to the material upon which the comment is based.”

149 Section 30(3)(b) of the Act modified the position at common law and reduced the burden for defendants. Where the comment is based only to some extent on proper material for comment, the comment must represent an opinion that might reasonably be based on that material. The consequence is that the “facts” upon which the comment is based may prove in part to be untrue. The legislation also requires that the comment must represent an opinion which might reasonably be based on that material. The defence will not be defeated by a defendant’s inability to establish the truth or the existence of the whole of the material upon which the comment is based: Sims v Wran (1984) 1 NSWLR 317 at 325. However, in this situation it must satisfy the reasonableness requirement provided in subs (3).

150 In the present case the defendant submitted that imputations (b) (c) (d) and (g) are each an expression of opinion. Imputations (b) and (c) were submitted to be an opinion when considered in context. In particular, the words:

“And it goes on, there is about ten minutes of this bile about how evil and hate-filled this radio station is and about how we incite people to commit acts of violence and racist attitudes. I don’t think that I’ve ever quite done that, like he did,”

151 Imputations (d) and (g) were submitted to be classic expressions of opinion. The context was said to support this view. Mr Morrison said that he is “not alone in thinking” that the plaintiff is “disgraceful”. Later in the same paragraph, the words “and I think the more you say the more you represent to me that you are a dangerous individual,” were submitted to illustrate that at this point Mr Morrison is expressing his opinion.

152 The defendant submitted that Mr Morrison’s comments embodied in imputations (b), (c), (d) and (g) were based upon the plaintiff’s attack on 2GB at the rally. Further it was submitted by the defendant that in accordance with s 30(3)(b) it was not obliged to prove every detail relating to the defendant’s representative (Mr Glasscock) at the rally contained in the broadcast, including, for instance, the allegations that the plaintiff gestured at Mr Glasscock or that Mr Glasscock made a retreat. The critical point was said to be that a 2GB reporter was present whilst the plaintiff was making his attack. It was submitted that it was enough that the defendant established the substance of the attack on 2GB at the rally as reported by Mr Morrison. The defendant submitted that Mr Morrison’s comments as reflected in the plaintiff’s imputations might reasonably be based upon the established fact of that attack.

153 The defendant submitted that the plaintiff (who bears the onus on this issue) has adduced no evidence which establishes that Mr Morrison did not hold the opinions he expressed.

154 I am satisfied that the defendant’s submission should be accepted. However, I do so in relation to in particular imputations (b) and (c) with some hesitation. Although the defendant filed detailed written submissions the plaintiff provided me with little assistance on these issues. The fact that Mr Morrison was of the view that the reporter had been required to withdraw when this was not the case, and Mr Morrison put his belief to air raises a difficult issue. However, I have ultimately decided that the defendant may rely on s 30(3)(b) to sustain the defence notwithstanding the inaccuracy.

Damages

155 Because of my conclusions it is unnecessary for me to deal with the question of damages. Although in the ordinary course I would have considered that matter against the possibility that my findings in respect of liability were erroneous, that course is not open in the present case. Because there are a number of issues which I have determined in favour of the defendant which may be the subject of argument in the event of any appeal and which, depending upon the outcome of those arguments could affect the quantum of damage, it would not be sensible for me to explore that issue further. I have in mind that if any of my findings in relation to truth were overturned and my findings in relation to qualified privilege were successfully appealed, particularly my finding in relation to malice, this would inevitably affect the quantum of damage but in different ways. Furthermore, it is apparent from my findings in relation to the issues of truth that any discussion which I embarked upon with respect to damages would commence from my view that the plaintiff is a person with a seriously compromised reputation.

156 Regrettably, in these circumstances, if there is an appeal with respect to liability which succeeds, a new trial to determine the issue of damages may be necessary.

Orders

157 For these reasons the plaintiff’s claim is dismissed with costs.

**********

Citations

Trad v Harbour Radio Pty Ltd [2009] NSWSC 750

Most Recent Citation

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Statutory Material Cited

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Slatyer v Daily Telegraph Newspaper Co Ltd [1908] HCA 22

Rivkin v Amalgamated Television Services Pty Ltd [2001] NSWSC 432

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CITATION:	Trad v Harbour Radio Pty Ltd [2009] NSWSC 750
HEARING DATE(S):	18-21 May 2009 25-26 May 2009
JUDGMENT DATE :	31 July 2009
JURISDICTION:	Civil
JUDGMENT OF:	McClellan CJatCL
DECISION:	Plaintiff's claim dismissed with costs.
CATCHWORDS:	DEFAMATION - justification - truth - contextual truth - DEFAMATION - proper material for comment - opinion - DEFAMATION - privilege - qualified privilege - response to attack
LEGISLATION CITED:	Defamation Act 1974 Anti-Discrimination Act 1977 (NSW) Sex Discrimination Act 1984 (Cth) Racial Discrimination Act 1975 (Cth) Disability Discrimination Act 1992 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Adam v Ward (1917) AC 309 Aktas v Westpac [2009] NSWCA 9 Bass v TCN Channel Nine [2003] NSWCA 118; (2003) 60 NSWLR 251 Cairns v John Fairfax & Sons Ltd (1983) 2 NSWLR 708 Corby v Channel Seven Sydney Pty Ltd (Supreme Court of New South Wales, Nicholas J, 20 February 2008, unreported) Hepburn v TCN Channel 9 (1984) 1 NSWLR 386 Horrocks v Lowe [1975] AC 135 Jackson v John Fairfax Publications & Sons Ltd (1981) 1 NSWLR 36 John Fairfax v Blake (2001) 53 NSWLR 541 Loveday v Sun Newspapers Ltd (1937) 59 CLR 503 Penton v Calwell (1945) 70 CLR 219 Radio 2UE Pty Ltd v Chesterton [2009] 8 HCA 16 Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 Rivkin v Amalgamated Television Services Pty Ltd [2001] NSWSC 432 Sims v Wran (1984) 1 NSWLR 317
PARTIES:	Keysar Trad (Plaintiff) Harbour Radio (Defendant)
FILE NUMBER(S):	SC 2006/20324
COUNSEL:	C A Evatt/R K M Rasmussen (Pltf) R G McHugh SC/M F Richardson (Def)
SOLICITORS:	Turner Freeman (Pltf) Banki Haddock Fiora (Def)