MP’s defamation suit against Latham could make legal history

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Key points

• Legal experts say the defamation case brought by Sydney MP Alex against NSW One Nation leader Mark Latham may be suited to a jury.
• If the case was heard by a jury, it would be a first for a Federal Court defamation trial.
• The Full Federal Court has said a jury may be appropriate in a defamation case involving a consideration of changing community standards.

The Federal Court would make legal history in the defamation battle between Sydney MP Alex Greenwich and former NSW One Nation leader Mark Latham if it empanelled a jury to hear the case, experts say.

Greenwich, the state MP for Sydney, filed Federal Court defamation proceedings in May against Latham over a tweet posted by the upper house MP on March 30 and related comments to The Daily Telegraph on April 1. Greenwich, who is gay, has described the tweet as “defamatory and homophobic”.

Alex Greenwich (right) filed Federal Court defamation proceedings against Mark Latham in May.Credit: Dominic Lorrimer

The Federal Court has yet to empanel a jury in any defamation case in its 46-year history, but the court has the power to direct that a case be tried by a jury if “the ends of justice appear to render it expedient to do so”. If Greenwich had filed his case in a state court, either Greenwich or Latham could have elected to have a jury.

Dr Michael Douglas, senior lecturer at the University of Western Australia’s law school, said: “If ever there was a defamation case where the ends of justice might warrant a trial by jury, this might be it: where the litigants are politicians and the social issues engaged by the case are controversial.”

“If ever there was a defamation case where the ends of justice might warrant a trial by jury, this might be it.”

Federal Court Justice Michael Lee raised the prospect of a jury in former federal Liberal staffer Bruce Lehrmann’s defamation suit against Network Ten.

It was opposed by the parties, but Lee said this was not the sole consideration. Ultimately, Lee decided against empanelling a jury because significant publicity surrounding the case meant there was an “an appreciable risk of prejudice”.

The Full Federal Court has previously said a jury might be appropriate in a case examining what is considered defamatory in light of changing community standards.

“Changing attitudes towards homosexuality over the last 40 to 50 years may be such an issue,” said University of Sydney professor David Rolph, an expert in defamation law.

“But the Federal Court has repeatedly emphasised that the default mode of trial is not trial by jury, even in a defamation case.”

A jury could not decide every issue in the Greenwich case. The judge would need to decide whether Greenwich met a new serious harm threshold for bringing a defamation claim, and would also determine the quantum of damages if Greenwich was successful. The judge would also need to decide aspects of some defences.

University of Melbourne Law School Associate Professor Jason Bosland, director of the Media and Communications Law Research Network, said that “a jury could decide the publications’ meanings, and whether or not they are defamatory”.

“It may be the type of case that might benefit from having a jury involved,” he said. “The only reason a jury might be warranted here is because of the nature of the allegations.”

In a written defence to the lawsuit, Latham seeks to rely on a range of defences, including in part on a new public interest defence. He also argues Greenwich has not met the new serious harm threshold for bringing a defamation claim.

In a reply to the defence, released by the court last week, Greenwich’s lawyers says aspects of Latham’s defence “increased the hurt and harm occasioned to him, and … warrant an award of aggravated damages”.

They pointed to the suggestion by Latham’s lawyers in his defence that his comments “enhanced” rather than damaged Greenwich’s reputation because the comments were swiftly condemned in the media.

Greenwich’s lawyers also pointed to the suggestion in Latham’s defence that Greenwich is “an openly gay man who has participated in homosexual sexual activities”, when “Mr Latham does not know, and could not have known, anything about the private sexual activities of Mr Greenwich”.

Greenwich alleges Latham’s tweet defamed him by suggesting he is “not a fit and proper person to be a [NSW MP] … because he engages in disgusting sexual activities”. The tweet referred to sexual activity in gratuitous terms that the Herald has chosen not to publish.

Greenwich says Latham’s comments to the Telegraph conveyed different defamatory meanings, including that he “is a disgusting human being who goes to schools to groom children to become homosexual”.

Latham seeks to rely on the public interest defence, introduced in most states and territories in July 2021, for his comments to the Telegraph but not for the tweet.

“The public interest defence is entirely for the jury, if there is one,” Rolph said.

Douglas said the case might “provide some clarity on the new public interest defence”, which was “enacted to better protect freedom of speech”.

But Douglas said he was “not convinced” the defence would apply in this case.

The case is listed for a first case management hearing on September 25.

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