Harbour Radio Pty Limited v Trad [2012] HCA 44

HIGH COURT OF AUSTRALIA

GUMMOW, HAYNE, HEYDON, KIEFEL AND BELL JJ

HARBOUR RADIO PTY LIMITED APPELLANT

AND

KEYSAR TRAD RESPONDENT

Harbour Radio Pty Limited v Trad [2012] HCA 44 5 October 2012 S318/2011

ORDER

1. Appeal allowed.

2. 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.

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

4. 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.

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

On appeal from the Supreme Court of New South Wales

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

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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.