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Mark Latham argues that 'homophobic' comments improved public opinion of Alex Greenwich

The NSW One Nation leader has submitted several defences in defamation proceedings initiated against him by Greenwich.

NSW One Nation leader Mark Latham has filed a novel defence in the defamation case brought against him by fellow MP Alex Greenwich, arguing that the media coverage of his actions improved the public opinion of Greenwich.

Greenwich, an independent who has represented the state electorate of Sydney since 2012, brought the defamation action in June against Latham over allegedly homophobic and derogatory comments he made towards Greenwich.

Greenwich married his husband in Argentina in 2012 and was a staunch supporter of the ‘Yes’ campaign in the same-sex marriage postal survey of 2017.

The conflict began when Greenwich said that he was disgusted by Latham after LGBTQ+ protesters were targeted at an event where Latham was speaking.

Latham took to Twitter to comment on the article that published Greenwich’s statement. Although this tweet has since been deleted, the lawsuit alleges that it, along with comments made by Latham in a Daily Telegraph article, suggested that Greenwich’s homosexuality meant that he was “not a fit and proper person to be a member of the NSW Parliament.”

In addition, the statement of claim, which contains the deleted tweet and his quotes in the Daily Mail, submitted to the Federal Court of Australia on May 26th also claims that Latham implied that Greenwich visited schools to groom boys.

Legal representatives for Greenwich claim that he received hateful and threatening messages from Latham’s supporters.

One defence raised by Latham was that subsequent media coverage of his comments boosted the reputation of Greenwich, with even One Nation leader Senator Pauline Hanson demanding an apology.

This defence is in response to a requirement under Section 10A of the Defamation Act 2005 (NSW) for Greenwich to prove that his reputation suffered ‘serious harm.’ If Greenwich’s reputation was actually improved, then he would not have a case against Latham.

Although this is a novel defence from a defendant, it is not unprecedented.

When Clive Palmer and then-WA Premier Mark McGowan sued each other for defamation, Justice Lee considered polling figures and electoral results to conclude that McGowan’s reputation had not dropped as a result of Palmer’s comments, and commented that “indeed, it is more likely than not that Mr McGowan’s reputation was enhanced.”

However, it should be noted that, in Palmer v McGowan (No 5) [2022], McGowan was still awarded $20,000 for “subjective hurt” to his feelings as emotional damage. And, in that case, McGowan did not receive hateful messages and calls.

Latham also relies on the defence of ‘common law qualified privilege,’ meaning that he had a duty to make those remarks, or it was otherwise in the public interest to make them, regardless of the credibility of the actual remarks.

This is similar to the defence of public interest under Section 29A of the Defamation Act 2005 (NSW), which he also relies on in relation to the Daily Telegraph article, because they were comments about the “conduct and fitness of” Latham in response to attacks by Greenwich over the LGBTQ+ protesters, and by others over his initial tweet.

He also relies on statutory qualified privilege under Section 30 of the Defamation Act 2005 (NSW) in relation to the quotes in the Daily Telegraph about the controversy, given that he was part of the controversy, and he had been asked about it by Linda Silmalis, an “experienced and trusted journalist.”

Finally, in reliance on Section 31, he claims that the comments were his honest opinions based on factual evidence, like his gay rights activism and homosexuality.

A court date has not yet been set for this matter.

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