SMH Attack, hyperlinked to the Metcalfe Tweet, and this material is substantially true;
e. Greenwich's attack as read in the Online SMH Attack, hyperlinked to the Metcalfe Tweet, blamed Latham for the violence that occurred at the Event, and it is substantially true that Greenwich's attack blamed Latham for the violence;
f. Latham was an NSW MLC and leader of the NSW One Nation party, material that was substantial true and on Latham's Twitter account, recorded in the Online SMH Attack, hyperlinked to the Metcalfe Tweet, and otherwise notorious or apparent in the context the Primary Tweet was published;
g. Greenwich was an independent NSW MLA, material that was substantially true, recorded in the Online SMH Attack hyperlinked to the Metcalfe Tweet, and otherwise notorious or apparent in the context the Primary Tweet was published;
h. Greenwich was advocating in support of the LGBTQIA+ community, as appears from his comments in the Online SMH Attack hyperlinked to the Metcalfe Tweet.
203 Mr Greenwich submitted:
Where fact and comment are closely intermingled, particularly in a short publication, the publication is more likely to be understood by ordinary, reasonable readers as a statement of fact: Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 at 319-20 (Fletcher Moulton LJ); Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at [42]–[43] (Gummow, Hayne and Heydon JJ).
Mr Greenwich submits that ordinary, reasonable readers of the Primary Tweet are likely to have understood it as a statement of fact (that Mr Greenwich as a matter of fact sticks his dick up bloke's arses so as to cover it in shit), [rather] than an expression of opinion (that Mr Greenwich is disgusting because he sticks his dick up bloke's arses so as to cover it in shit). Little, however, ultimately turns on this characterisation in the present matter because the other two elements of the defence cannot be made out.
204 As I have said, it is not an easy question to answer, but I will assume in Mr Latham's favour that the matter contained in the primary tweet was an expression of his opinion, rather than of fact.
Was it a matter of public interest?
205 Mr Latham contended that the primary tweet was on a matter of public interest, having regard to the "context created by Mr Greenwich's comments published in the Sydney Morning Herald". Specifically, the pleaded public interest that the primary tweet opinion was alleged to relate to was "[Mr] Greenwich's attack, by a NSW MLA, on [Mr Latham], a NSW MLC to the effect that he was a disgusting human being, is a disgusting human being and an extremely hateful and dangerous individual who risks causing a great deal of damage to our state who was therefore unfit to serve as a NSW MLC".
