Explosive argument behind Trad’s defamation reasoning

The man carrying a legal bomb into courtroom 11A in the NSW Supreme Court building on Friday morning did not look menacing and is not menacing under normal circumstances. But these were not normal circumstances. This was cultural war. The legal bomb was brought to court by the once leonine figure of Clive Evatt, a veteran defamation lawyer who now walks with the aid of a cane, on which his severely bent frame leans heavily.

As Evatt took his place at the plaintiff's bench, the man on whose instructions he was acting, Keysar Trad - a thickset, bearded man wearing a grey suit, blue shirt and tie - sat alone in the back row of the public gallery.

Trad is no stranger to litigation. Over many years he has expended untold hours making formal complaints to the NSW Supreme Court, the Administrative Decisions Tribunal, the Anti-Discrimination Board, the Human Rights Commission, the Press Council, other review bodies and, above all, the media, where he has operated as a quote-machine representing the Muslim community in Australia.

He was in court on Friday because of a disaster of his own making. After delivering a hostile tirade against Sydney's top-rated radio station, 2GB, during a ''peace'' rally in 2005, Trad was himself criticised the next day by a 2GB presenter, Jason Morrison, though not in the same language Trad had used at the rally where he claimed to speak on behalf of Muslims in Australia.

Trad sued for defamation. He was the star witness for his own case. The senior judge, Justice Peter McClellan, the chief judge of common law in the NSW Supreme Court, found against Trad, and found him to be a witness of little credibility, a man of extreme views and, in summary, ''a disgraceful individual''.

Such was Trad's performance under oath that on Friday the counsel for the defence, Richard McHugh, SC, delivered this devastating portrayal of his credibility under oath: ''[Trad] attempted to evade responsibility for his statements by claiming he was misquoted, by claiming he was taken out of context, by claiming he had changed his mind, or by claiming he did not even know what he had said or written at the instant he said or wrote it. He was entirely disbelieved.

''[His] evidence that he did not know who was the author of Mein Kampf - and his feigned attempts at a thought process to recollect the author's name - were a low point in this trial. The transcript in this case can supply only a colourless picture of the evidence at trial.''

Even before this appeal, Trad was facing legal costs exceeding $250,000. He decided to up his risk. On Friday morning, I counted 16 lawyers in the court. At this level, justice is neither fast nor cheap.

His appeal was based on several major grounds but the most prominent and contentious, made repeatedly in oral and written submissions, was that Justice McClellan had erred fundamentally by taking Trad's provocative comments over the years out of the context of the Muslim community. To quote Evatt: ''His honour did not take into account that Australia is a multicultural society and the viewpoints of ethnic groups are recognised by the Australian community even though not all members of the community agree with them.''

And this: ''His honour did not refer to or even consider the likelihood the average citizen would recognise that the views expressed by [Trad] were similar to beliefs shared by Muslims throughout the world including Muslims in Australia.'' And this: ''His honour appears to have given no weight to the fact that the speech was made to Muslims in a mosque and not in an address to the general community.''

And this: ''His honour overlooked the fact Sheikh Hilaly's speech [defended by Trad] was not made to members of the Australian community but to Muslims and others who attended the Sidon Mosque in Lebanon.''

This is an explosive argument. It means this aspect of the appeal may rest on the argument that the Muslim community operates under different standards than the rest of society and cannot be judged using the same standards. Further, these standards, even if judged to be extreme by the rest of society, should be respected.

It is fair to say the bench became restive on Friday. There were plenty of tart exchanges from the three judges, justices Murray Tobias, Ruth McColl and John Basten. But this was nothing compared with the fire and brimstone from the defence.

This appeal was an attempt, McHugh argued, to turn the case into one about ''freedom of speech and freedom of religion, and that the appellant has been unfairly branded as a racist, homophobic, terrorist-supporting, woman-hating bigot when all he was doing was expressing views consistent with his Islamic faith and his role as a prominent Australian Lebanese community spokesman … The question here is whether the deliberate peddling of grossly sexist, homophobic, anti-Semitic filth is not dangerous and disgraceful and an incitement to violence and racist attitudes in Australia in 2010. The most extraordinary claim is that his extreme views are [a] 'Muslim view'. This ought not to be accepted.''

If Trad does prevail in his appeal, this case, Trad v Harbour Radio, will be corrosive to the idea of mainstream Muslim moderation, and to the ideal that most Muslims are naturally part of a cohesive element in the weave of Australia's culture rather than functioning under de facto Islamic law while giving mere lip service to the Australian legal system and the values it upholds.