Harbour Radio Pty Ltd v Trad

• Jurisdiction: Australia Federal only
• Judge: Gummow,Hayne,Bell JJ,Heydon J,Kiefel J
• Judgment Date: 05 October 2012
• Neutral Citation: [2012] HCA 44,2012-1005 HCA C
• Court: High Court
• Docket Number: S318/2011
• Date: 05 October 2012

Harbour Radio Pty Limited

Appellant

and

Keysar Trad

Respondent

[2012] HCA 44

Gummow, Hayne, Heydon, Kiefel and Bell JJ

S318/2011

HIGH COURT OF AUSTRALIA

Harbour Radio Pty Limited v Trad

Defamation — Defences — Qualified privilege — Contextual truth — Substantial truth — Reply to criticism — Malice — Where appellant made broadcast in response to statements made by respondent — Whether defence of qualified privilege applicable to statements — Whether broadcast sufficiently connected to criticism by respondent — Whether broadcast made bona fide to vindicate reputation of appellant — Whether broadcast actuated by malice — Whether community standard test of ‘right-thinking’ person relevant to substantial or contextual truth defence — Whether audience composed of ordinary decent persons relevant to substantial truth or contextual truth defence.

Words and phrases — ‘contextual truth’, ‘malice’, ‘qualified privilege’, ‘substantial truth’.

Defamation Act 1974 (NSW), ss 3, 7A, 9, 11, 15, 16.

Representation

R G McHugh SC with G R Rubagotti for the appellant (instructed by Banki Haddock Fiora)

G O'L Reynolds SC with C A Evatt and R K M Rasmussen for the respondent (instructed by Turner Freeman Lawyers) at the hearing on 3 February 2012

G O'L Reynolds SC with R K M Rasmussen for the respondent (instructed by Turner Freeman Lawyers) at the hearing on 5 March 2012

ORDER

Appeal allowed.

Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 22 March 2011, and in lieu thereof order that:

• (a) the appeal to that Court be allowed;

• (b) the orders of the Common Law Division made on 6 August 2009 be set aside.

Declare that the defence of qualified privilege at common law with respect to imputations (a), (b), (c), (d), (g) and (j) is made good.

Remit the matter to the Court of Appeal for consideration of:

• (a) the defences of substantial truth with respect to imputations (b),(c), (d) and (g) and contextual truth with respect to imputations (h) and (k);

• (b) any questions of remitter to the Common Law Division for assessment of damages if the Court of Appeal holds that a defence of contextual truth does not apply in relation to imputations (h) and (k);

• (c) all questions of costs of proceedings in the Common Law Division and the Court of Appeal.

No order as to costs of the appeal or cross-appeal to this Court.

Gummow, Hayne and Bell JJ. The principal issues of defamation law in this appeal from the New South Wales Court of Appeal (Tobias, McColl and Basten JJA) 1 concern the defence at common law of qualified privilege. The proceedings are governed by the Defamation Act 1974 (NSW) (‘the 1974 Act’), rather than the Defamation Act 2005 (NSW) 2. The effect of s 1of the 1974 Act was to preserve the common law defence.

2 The objects stated in s 3 of the 1974 Act include the provision of ‘effective and appropriate remedies for persons whose reputations are harmed by the publication of defamatory matter’ (par (a)) and, on the other hand, ensuring ‘that the law of defamation does not place unreasonable limits on the publication and discussion of matters of public interest and importance’ (par (b)). It will be apparent that there may be some tension between these objects.

3 Further, the width of the principles governing the defence of qualified privilege emphasises the need, in deciding whether they apply in a particular case, to scrutinise closely the circumstances of the case, the situation of the parties and the events leading up to and surrounding the defamatory publication in question 3.

4 The sequence of events leading up to this litigation begins in 2005 with major public disturbances in New South Wales at Cronulla Beach. These have become known generally as the ‘Cronulla Riots’ and have been perceived by some as a confrontation between adherents of Islam and persons of European descent who are not Muslims.

The peace rally

5 Approximately one week after the Cronulla Riots, the respondent (Mr Trad) attended and was one of the speakers at a ‘peace rally’ in Hyde Park, in the centre of Sydney. This was held on Sunday 18 December 200and was attended by about 5000 people. Representatives of the media were present. In the course of his speech Mr Trad said:

‘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’.

Later in his speech Mr Trad used words, the effect of which was to place specifically at least part of the blame for the Cronulla Riots on the appellant's commercial radio station, Radio 2GB. He said that there was ‘a great deal of shame in tabloid journalism’ and that ‘one talk back radio station … seems to be nothing other than the mouthpiece of the Howard government over the last few years’. The crowd responded ‘2GB’, and Mr Trad continued, ‘[t]his station yes[. I]t is winning the ratings in its small niche in the Sydney market, it is winning the ratings, it is whipping up fears.’ He added that Muslims in Australia were ‘suffering as a result of the racist actions of predominantly one radio station’. Lengthy extracts from Mr Trad's speech are set out in the reasons of the Court of Appeal 4.

The broadcast

6 In a program that went to air on Radio 2GB at about 10.05am on the next day, Monday 19 December 2005, and which lasted some 11 minutes with at least one commercial break, the radio ‘host’, Mr Jason Morrison, conducted a monologue. This was broken by a short excerpt from a recording of the public rally the day before, and by talk-back calls involving a discussion between him and the callers. The text of the broadcast, being the matter complained of by Mr Trad in his defamation action against the appellant (‘2GB’), is set out in the reasons of the Court of Appeal 5.

7 In his amended statement of claim, Mr Trad alleged that the matter complained of conveyed imputations which he identified by reference to numbered paragraphs in the text of what Mr Morrison had said, as follows:

‘[13] Now that's Keysar Trad at a peace rally … Now I'm sorry about the quality of that [recording of the rally], but as I said Chris [Glasscock] 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.

[14] 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. …

[16] 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 your 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.

[17] 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. …

[24] … 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.’ (emphasis added)

The course of the litigation

8 Section 7A of the 1974 Act sets up procedures for the trial of defamation actions which depart radically from the common law system of trial 6. The common law classified as a question of law the question whether the matter complained of was or was not capable of bearing a defamatory meaning, and as a question of fact for the jury whether the matter was or was not defamatory. The issue whether an occasion was one of qualified privilege was for decision by the judge, that of whether the privilege was forfeited by malice was for the jury 7. The s 7A structure divides the trial process into three stages.

9 At the second stage, that pursuant to s 7A(3) of the Act, a jury found that the following eight imputations were conveyed in the 2GB broadcast and were defamatory of the plaintiff, Mr Trad:

• ‘a. the plaintiff stirred up hatred against a 2GB reporter which caused him to have concerns about his own personal safety;

• b. the plaintiff incites people to commit acts of violence;

• c. the plaintiff incites people to have racist attitudes;

• d. the plaintiff is a dangerous individual;

• g. the plaintiff is a disgraceful individual;

• h. the plaintiff is widely perceived as a pest;

• j. the plaintiff deliberately gives out misinformation about the Islamic community;

• k. the plaintiff attacks those people who once gave him a privileged position.’ 8

10 The issues before this Court require close attention to the terms of each of these imputations. The Court of Appeal correctly observed that at least some of the imputations are expressed in terms which are unclear 9. However, in the amended statement of claim, by way of particulars of each imputation, reference was made to a numbered paragraph in the text of the broadcast, as indicated above 10. Any challenge to the form of the imputations should have been taken...