206 That contention cannot be accepted, for the following reasons.
207 First, assuming that the primary tweet was an expression of opinion, then the opinion related to the assumed, private sexual practices of Mr Greenwich.
208 Secondly, as pleaded, the matter alleged to constitute the subject of public interest was the context in which Mr Latham published the primary tweet, rather than the matter the subject of his opinion (namely, the private sexual practices of Mr Greenwich). The latter is the enquiry dictated by the terms of s 31(1)(b).
209 Thirdly, publication of statements about the private sexual activities of others, including public figures, is not a matter of public interest, except where those activities are relevant to the performance of the person's public duties or where the person has themselves put those activities before the public (see Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 167 (Hunt J)). Neither of those considerations apply here.
Is the opinion based on proper material?
210 To satisfy the proper material element in s 31(1)(c), Mr Latham must establish that his opinion was based on proper material in that it was, as required by s 31(5), based on material which is substantially true.
211 And he cannot do that, because as Dr Collins pithily put it in his closing address:
On honest opinion, if there was an opinion, it was an opinion to the effect that, "Mr Greenwich is disgusting because he sticks his dick up a bloke's arse to cover it in shit." That could only be an honestly held opinion if Mr Latham, at the time he expressed it, had a proper factual foundation for believing that that's what Mr Greenwich does in the bedroom. And he doesn't, as Mr Smark correctly conceded …
212 The concession to which Dr Collins made reference was this at page 127 of the transcript:
Mr Latham had no basis to know what sort of sexual conduct Mr Greenwich himself engaged in, or whether he engaged in sexual conduct at all.
213 In my view, the list of matters set out in Exhibit MFI R6, set out above, are therefore neither here nor there.
214 In any event, Mr Latham did not plead the defence properly. As Dr Collins submitted:
If Mr Latham were going to defend this opinion, he would need to have pleaded and proved that at the time of the publication of the primary tweet, he knew, and it was true, that Mr Greenwich, in fact, engages in the act describing the tweet.
215 There was no such pleading.
