A judge wrote an astonishing analysis of Mark Latham's 'extraordinary' defamation defence before throwing it out

Photo: Jonathan Wood/ Getty Images.Mark Latham 14 years ago as Labor leader, ahead of losing the federal election.

Former Labor leader Mark Latham’s defence against a defamation claim by journalist Osman Faruqi did not got off to a good start with NSW Federal Court Justice Michael Wigney striking out the entire 76-page defence on Thursday.

He gave the controversial conservative media commentator a month to file a new one.

Latham is being sued for comments he made during a 2017 YouTube video titled “The Rise of Anti-White Racism and Terrorist Plots in Australia”, in which he accused Faruqi of “aiding and abetting Islamic terrorism” and encouraging “anti-white racism in Australia”.

Faruqi, the former political editor at Junkee, alleges he was defamed in the comments, which contain three implications – that he “knowingly assists terrorist fanatics who want to kill innocent people in Australia”, he “condones the murder of innocent people”, and “encourages and facilitates terrorists”.

Wigney’s remarkable judgment on Thursday begins thus:

What does the martyrdom of Christians in the Roman Empire between the reign of the Emperor Nero Claudius Caesar Augustus Germanicus and Emperor Flavius Valerius Aurelius Constantinus Augustus have to do with a defamation action commenced in Australia in 2017?

How could the persecution of ethnoreligious Huguenots in the French Kingdom during the French Wars of Religion of the Sixteenth Century be said to rationally affect the assessment of the probability of a fact in issue in a modern-day defamation action in which the defamatory imputations are said to be that the applicant knowingly assists terrorist fanatics who want to kill innocent people in Australia, or condones the murder of innocent people by Islamic terrorists, or encourages and facilitates terrorism?

Could the fact of the segregation and ill-treatment of ethnic Negro people under the doctrine of Apartheid in South Africa between 1948 and 1991 reasonably be said to be relevant to the defences of justification, contextual truth, qualified privilege, honest opinion and fair comment pleaded by the respondent in that defamation action?

These and other equally beguiling questions are raised by the interlocutory applications filed by the parties in this matter.

While Faruqi’s statement of claim, Justice Wigley noted “occupies just over two pages”, Latham’s ran for 76, in 12 parts, with nine schedules and “raises most, if not all, of the positive defences” available in defamation.

“Mr Latham’s defence is, on just about any view, an extraordinary document,” he wrote.

“In order to address Mr Faruqi’s strike out application, it is necessary to attempt to come to grips with it. That is no mean feat.”

In response, “Faruqi contended, in short, that various parts of Mr Latham’s defence contained scandalous, frivolous or vexatious material, or were evasive or ambiguous, or were likely to cause prejudice, embarrassment or delay in the proceeding, or failed to disclose a reasonable defence appropriate to the nature of the relevant pleading, or were otherwise an abuse of the process of the Court,” Wrigley wrote.

The judge dismissed Latham’s defence in its entirety while allowing most of Faruqi’s. Costs went against Latham, who later took to Twitter to say he would appeal.

His application also featured a dictionary.

“The dictionary includes, amongst other things, a dramatis personae, a list of online biographical notes regarding Mr Faruqi, references to ‘internet terminology’, and a description of certain ‘Islamic terrorist atrocities’,” Wigney wrote.

Latham’s struck-out defence also contained 164 tweets by Faruqi the defendent claimed proved his case of vilification. The judge addressed a sample of them directly.

Of Faruqi’s tweet “Labradors are to dogs what straight white dudes are to politics. Boring, too common, entitled,” Wrigley wrote:

This tweet may well have been offensive to owners of Labradors, or perhaps even Labradors themselves. Some readers may well have considered that it was a fairly crude and simplistic way for Mr Faruqi to make his point. Others may have been simply amused. Either way, it hardly constitutes vilification.

While might disagree with Faruqi’s views and opinions, others may not be amused by them, Wrigley said they are “a long way from the proposition that the tweets vilify or dehumanise white people, and an even longer way from the proposition that the tweets, or their author, incite or encourage violence against white people”.

He mused on Twitter, its use by Faruqi and the offence caused thus:

Others may, perhaps with some justification, consider some of the tweets to be rather puerile, shallow, trite or even hackneyed. But really, what does one expect from Twitter, or social media generally; deep, insightful analysis? It is also perhaps possible to imagine that some people who are not only white-skinned, but also thin-skinned, might be offended by some of them.

In response to a Faruqi tweet about “Rich old white male Sydney Uni graduates looking out for themselves”, the judge wrote:

Is it seriously to be suggested that middle-aged white men who graduated from the University of Sydney constitute a vilified or demonised sub-class in Australian society?

Do people within that specific demographic feel threatened or vulnerable as a result of social media posts such as this? A number of those involved in the conduct of this piece of litigation might be thought to be well placed to answer those rhetorical questions, though the answer is, in any event, obvious.

More pointedly, could it seriously be suggested that social media posts such as this are likely to encourage or facilitate anyone taking up their cudgels against middle-aged white male university graduates, let alone incite terrorist acts by Islamic terrorists against the “white” population generally?

In concluding, Justice Wigney wrote: “in light of the grant of leave to Mr Latham to re-plead, the preferable course is to strike-out the entire defence so that Mr Latham can start from scratch. That will hopefully give rise to a more concise and comprehensible pleading”.

You can read the full judgment here.

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