Trad v Harbour Radio Pty Ltd [2011] NSWCA 61

Trad v Harbour Radio Pty Ltd [2011] NSWCA 61

The Court held that while both truth and comment may be available as defences, the character of the imputation determines their availability. The primary judge erred in his assessment of substantial truth for certain imputations, failing to apply the correct legal standard. The defence of comment was not available where there was an insufficient factual basis. The defence of qualified privilege was available in respect of some, but not all, imputations as legitimate responses to an attack by the appellant. There was no evidence to establish malice by the respondent. The appeal was allowed in part, and the matter remitted for assessment of damages for specific imputations.

Parties
Appellant: Keysar Trad; Respondent: Harbour Radio Pty Ltd
Jurisdiction
Australia
Judgment Date
22 March 2011
Procedural Posture
Appeal / Judgment on Appeal From Orders of Mc Clellan CJ at Cl, 31 July 2009
Outcome
Appeal allowed in part
Legal Topics
Defences to Defamation, Truth (justification), Comment, Qualified Privilege, Malice, Contextual Truth, Assessment of Damages
Defamation Defences to Defamation Truth (justification) Comment Qualified Privilege Malice Contextual Truth Assessment of Damages

Case Brief

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Parties

Keysar Trad

Appellant

Harbour Radio Pty Ltd

Respondent

Procedural Posture

Appeal / Judgment on Appeal From Orders of Mc Clellan CJ at Cl, 31 July 2009

Legal Issues

  1. 1 Whether truth and comment can be pleaded in respect of the same imputations
  2. 2 Whether the primary judge erred in finding certain imputations were substantially true
  3. 3 Whether the primary judge erred in upholding the defence of comment for certain imputations

Ratio Decidendi

The Court held that while both truth and comment may be available as defences, the character of the imputation determines their availability. The primary judge erred in his assessment of substantial truth for certain imputations, failing to apply the correct legal standard. The defence of comment was not available where there was an insufficient factual basis. The defence of qualified privilege was available in respect of some, but not all, imputations as legitimate responses to an attack by the appellant. There was no evidence to establish malice by the respondent. The appeal was allowed in part, and the matter remitted for assessment of damages for specific imputations.

Court Disposition

Appeal allowed in part

Orders

  • Set aside the orders made by McClellan CJ at CL on 31 July 2009
  • Remit the proceedings to the Common Law Division for the assessment of damages in relation to imputations (c), (h) and (k)