Latham’s fight after offensive tweet cost him more than $500,000

3 months ago 6

A tweet by former NSW One Nation leader Mark Latham about Independent Sydney MP Alex Greenwich might not have been “in good taste” but it was not defamatory, Latham’s lawyer has told an appeal court.

Latham, now an independent NSW upper house MP, is seeking to overturn a Federal Court decision last year that found a highly graphic and offensive post by him about Greenwich on Twitter, now X, was defamatory.

Mark Latham and his lawyer Zali Burrows in October.

The tweet led One Nation founder Pauline Hanson to remove Latham, a former federal Labor leader, as the party’s parliamentary leader.

Latham was ordered to pay Greenwich $140,000 in damages plus legal costs, which tipped the total amount payable to the Sydney MP above $500,000. Latham’s three-day appeal hearing started in Sydney on Tuesday.

In response to Latham’s appeal, Greenwich has filed a cross-appeal and is seeking a higher award of damages.

‘Vile, homophobic attack’

In his decision in September last year, Federal Court Justice David O’Callaghan found the tweet conveyed the defamatory claim that Greenwich engages in “disgusting sexual activities”. This masthead has chosen not to republish it.

Greenwich’s barrister, Dr Matt Collins, KC, described the tweet during the trial last year as a “vile, homophobic attack” on the openly gay Greenwich.

The central argument by Latham’s legal team is that the tweet did not convey the defamatory meaning found by O’Callaghan.

As a secondary argument, they say Greenwich did not meet a new serious harm requirement for bringing a claim.

Sydney barrister Gabriella Rubagotti, acting for Latham, said in court on Tuesday that Greenwich “enjoyed a good reputation” before and after the tweet, and “no relevant change was demonstrated”.

Sydney MP Alex Greenwich, left, and his barrister Dr Matt Collins, KC, outside the Federal Court in Sydney on Tuesday.

She also argued Latham could, if required, rely on the defences of qualified privilege and honest opinion, which were rejected by the trial judge.

The tweet was merely part of the “cut and thrust” of political debate, Rubagotti submitted, and it was a “proportionate” response by Latham to a tweet about him by Greenwich.

In written submissions filed in court, Greenwich’s legal team, led by Collins, said it was “unthinkable” that a tweet about a female politician and her assumed sexual activities would be tolerated as part of political debate.

Rubagotti said that “well may it be” that Latham’s tweet, and any discussion of a female politician in similar terms, “is not, at the very least … in good taste, but this is not a court of taste, it’s a court of law”.

She said the relevant test was whether the tweet resulted in Greenwich’s reputation being lowered.

‘This is not a court of taste, it’s a court of law.’

Sydney barrister Gabriella Rubagotti, acting for Mark Latham in his defamation appeal over a tweet.

“It doesn’t lower [Greenwich] in the eyes of the ordinary reasonable reader,” Rubagotti said.

Rubagotti argued the tweet did not convey that Greenwich engages in “disgusting sexual activities” because only one sexual act was described rather than a number of activities.

She also drew the court’s attention to cases where the courts have drawn a distinction between mere “vulgar abuse” and defamatory statements.

Greenwich seeks additional damages

Greenwich has asked the appeal court to find that the tweet conveyed an additional defamatory meaning that O’Callaghan did not find was conveyed, namely that Greenwich is “not a fit and proper person to be a member of the NSW parliament because he engages in disgusting sexual activities”.

Greenwich’s legal team says in written submissions filed in court that a “higher award of damages is warranted”.

Alex Greenwich is seeking a higher award of damages for Mark Latham’s offensive tweet.

Latham’s tweet was posted five days after the NSW election in March 2023.

Shortly before the election, Latham had spoken at a Catholic Church in Sydney’s south-west about what he called “religious freedom, parental rights, school education and protecting [non-government] schools from Alphabet Activism”. Collins told the court during the trial that “Alphabet” appeared to be a derogatory term for the LGBTQI community.

About 15 LGBTQI protesters outside the event were reportedly confronted by violent counter-protesters, Collins said. He said Latham “got his facts completely wrong” and accused Greenwich in a subsequent interview of instigating a violent protest.

Greenwich was later quoted in The Sydney Morning Herald describing Latham as a “disgusting human being”.

Latham tweeted in response: “Disgusting? How does that compare with [sexual activity described in graphic and offensive terms the Herald has chosen not to publish]?”

The hearing before Justices Craig Colvin, Michael Wheelahan and Wendy Abraham continues on Wednesday.

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