Coming sooner than I had thought, the High Court of Australia today handed down its decision on the appeal in Harbour Radio Pty Ltd v Trad [2012] HCA 44 (5 October 2012) http://www.austlii.edu.au/au/cases/cth/HCA/2012/44.html , a defamation case. The facts are interesting and sadly redolent of events in the last few weeks (occurring at a rally addressed by a Muslim speaker accusing others of stirring up hatred, at which the speaker himself was then accused of doing the same). But the points of law are reasonably confined, and the litigation is not yet over. 

Radio station 2GB is alleged to have aired defamatory comments about Mr Trad, the speaker at the rally. A large part of their defence was to rely on the part of the defence of qualified privilege which allows one to respond to an attack, Mr Trad having attacked 2GB's coverage of what was known  as the "Cronulla riots" in 2005. The judgements contain an interesting discussion of when this form of qualified privilege can be relied upon. They hold that 2GB could legitimately use this defence in relation to 6 out of 8 imputations which had been found to be defamatory. Kiefel J has an extensive separate comment on the defence.

However, 2 of the defamatory imputations are said by the Court not to be sufficiently relevant to be regarded as responses to the attack. In relation to those, the Court of Appeal will have to consider whether the defences of truth or contextual truth under the Defamation Act 1974 (NSW) have been made out. The High Court corrected the standard adopted in the lower courts from "right-thinking persons" to "ordinary decent persons". In the end, Mr Trad gets another go, but this time the Court of Appeal will have to directly rule on the truth or otherwise of some very interesting imputations, including that he is a "disgraceful individual".

There was an attempt by Mr Trad to expand the grounds of appeal to allow discussion of a counter-claim of "malice" which would defeat the qualified privilege. 4 out of 5 members of the High Court refused to allow this, effectively saying that it had not been pleaded at trial. Heydon J, dissenting, would have held that the defence should be allowed to be pleaded, and indeed thought that it had been made out, as he took the view that the radio station commentator knew the falsity of one of the imputations when it was aired.

Regards

Neil