defendant may have an interest or duty to publish defamatory statements to the general public: at [20]. As their Honours explained at [27] and [35]:
[W]here the occasion is a response, by publication to the general public of defamatory matter, to a public attack upon the defendant by the plaintiff, the consideration of what is relevant to the attack requires particular care. The response must be commensurate with an occasion which is in an exceptional category … No doubt vigorous use of language has long been a characteristic of public debate in this country. But in the conduct of public affairs the law, in general, does not encourage persuasion by public vilification and by an abdication of reason …
…
That the matter complained of is sufficiently connected to the privileged occasion to attract the defence may appear upon any one of several considerations. The matter may be sufficiently connected with the content of the attack, or it may go to the credibility of the attack, or to the credibility of the person making that attack. Questions of degree inevitably will be presented.
239 The defence will be defeated if the applicant proves malice on the part of the respondent, in the form of spite, ill will, indirect or wrong motive not connected with the privilege: Penton v Calwell at 242–3; Harbour Radio at 47 [31].
240 The availability of the defence of qualified privilege and the requirement of proportionality or commensurateness which is a necessary element of the defence, is to be assessed objectively.
241 Mr Greenwich accepted that the primary tweet was a riposte to a reply to an attack, namely a riposte to the quote about Mr Latham that Mr Greenwich had provided to The Sydney Morning Herald. He also accepted that the manner of publication (being a tweet) was sufficiently proportionate by way of response (to the Metcalfe Tweet).
242 In my view, however, as was submitted, Mr Latham's reply was obviously not proportionate and commensurate to Mr Greenwich's attack.
243 The attack was strongly worded, to be sure, but it was essentially about politics and, in substance, urged electors not to vote for Mr Latham because of his views about LGBTQIA+ issues. Mr Latham's reply, on the other hand, was personal and not germane to any matter of politics contained in the attack. It was neither proportionate nor commensurate. As Mr Greenwich's pleaded in his Reply filed on 6 September 2023 as part of his particulars of malice (at [3(b)(vi)]):
In publishing the [p]rimary [t]weet, Mr Latham used language that was disproportionate and not germane to the language used in any of the alleged attacks … which concerned Mr Latham's fitness for public office and had nothing whatsoever to do with graphic sexual activity.
