circumstances identified above that the serious harm threshold in's 10A(1) of the Act was crossed by the primary tweet.
DEFENCES TO THE PRIMARY TWEET
197 Mr Latham relies on two positive defences to the primary tweet—honest opinion and common law qualified privilege (reply to attack).
198 Taking each in turn.
Honest opinion
199 Section 31(1) of the Act provides it is a defence to the publication of defamatory matter if the defendant proves that—
- (a) the matter was an expression of opinion of the defendant rather than a statement of fact, and
- (b) the opinion related to a matter of public interest, and
- (c) the opinion is based on proper material.
Expression of opinion or a statement of fact?
200 This is a question not easily answered.
201 Mr Latham submitted that "[t]he context, and the use of the term 'disgusting' clearly marks to the [ordinary reasonable person] that an opinion was being expressed".
202 Mr Latham relied on a list of agreed factual matters which, it was submitted, provided grounds for his honest opinion. The list was contained in Exhibit MFI R6, as follows:
a. Greenwich's attack, as republished in the Metcalfe Tweet, and it was substantially true that Greenwich's attack occurred;
b. On 21 March 2023, Latham was a speaker at St Michael's Church in Belfield for a community forum on religious freedom and parental rights (the Event), as recorded in the Online SMH Attack, hyperlinked to the Metcalfe Tweet, and this material is substantially true;
c. A violent incident occurred at the Event when LGBTQ protesters were confronted by people outside St Michael's Church, as recorded in the Online SMH Attack, hyperlinked to the Metcalfe Tweet, and this material is substantially true;
d. On 21 March 2023, Latham tweeted, "I didn't see what happened on the front street but I sincerely convey my best wishes to those injured and thank the police officers involved/or their work. No one should take the law into their own hands. Violence at political events is wrong", as recorded in the Online
