Trad v Harbour Radio Pty Ltd (No 2)

The appeal concerned a defamation claim brought by Keysar Trad against Harbour Radio Pty Ltd. The dispute arose from remarks made by a presenter on Radio 2GB about Mr Trad following a peace rally. A jury had found that the broadcast gave rise to several imputations concerning Mr Trad's character and conduct. The appeal was heard by McColl and Basten JJA and Tobias AJA in the Court of Appeal of New South Wales.

The primary legal issues before the court were whether the defence of substantial truth was made out in relation to certain imputations, and whether any remaining imputations caused further injury to Mr Trad's reputation, given that some imputations had been found to be substantially true. The court was required to consider the correct test for determining substantial truth, particularly when an evaluative judgment was involved, and to assess whether imputations such as being a "pest" or deliberately giving misinformation further damaged Mr Trad's reputation when considered alongside imputations of being dangerous or disgraceful.

The court applied the test for substantial truth as requiring an assessment by "ordinary decent persons, being reasonable people of ordinary intelligence, experience and education who brought to the question their general knowledge and experience of worldly affairs," rejecting the "right-thinking" people test. The court found that the defence of substantial truth was made out in relation to imputations (d) and (g), which alleged Mr Trad was a dangerous and disgraceful individual respectively. The court reasoned that the trial judge's findings on these imputations were correct, despite a potential error in the judge's approach to the standard of proof. Furthermore, the court determined that imputations (h) (that Mr Trad is widely perceived as a pest) and (k) (that Mr Trad deliberately gives out misinformation about the Islamic community) did not occasion further injury to Mr Trad's reputation, as they involved a lesser degree of opprobrium than the substantially true imputations or were considered mere terms of abuse in context.

The appeal was dismissed, and Mr Trad was ordered to pay the costs of the respondent in the Court of Appeal.