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 Latham can rely on the defences of qualified privilege and honest opinion, which were rejected by the trial judge.
Latham’s lawyers say the tweet was merely part of the “cut and thrust” of political debate, and was a “proportionate” response by Latham to a tweet about him by Greenwich.
Sydney MP Alex Greenwich, left, and his barrister Dr Matt Collins, KC, outside the Federal Court in Sydney on Tuesday.Credit: Janie Barrett
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.
Sydney barrister Gabriella Rubagotti, acting for Latham, said in court on Tuesday 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 argued.
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”.
Alex Greenwich is seeking a higher award of damages for Mark Latham’s offensive tweet.Credit: Janie Barrett
Greenwich’s legal team says in written submissions filed in court that a “higher award of damages is warranted”.
Latham’s tweet was posted five days after the NSW election in March 2023.
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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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