Mark Latham's New Defamation Defence Is Three Pages Long (Down From 76)

His new lawyer: "I couldn’t cavil with the fact that the defence was an interesting document."

Darren England / AAPIMAGE

Former Labor leader Mark Latham shouldn't be blamed for the "extraordinary" 76-page defence he initially filed in the defamation case he is fighting against ABC employee Osman Faruqi, a court has heard.

Latham is being sued in the Australian Federal Court over a video he published in August 2017 in which he named Faruqi – a former Greens candidate and political editor at Junkee – as he made comments about Islamic terrorism and "anti-white racism".

Faruqi claims Latham defamed him by suggesting he assists terrorist fanatics who want to kill Australians, that he condones murders committed by Islamic terrorists and that he encourages and facilitates terrorism.

The first defence Latham filed was thrown out in dramatic fashion in August by Justice Michael Wigney, who labelled the document "extraordinary" and told the former prime ministerial aspirant turned right wing internet commentator to start from scratch.

In a short preliminary hearing on Monday morning, Wigney noted the new defence was far shorter. "What was previously a 70-page document is now sensibly a three page document," he said.

The new defence argues that the video did not convey the imputations relating to terrorism that Faruqi claims it did. It does not include substantive defences (such as truth or honest opinion).

On Monday Wigney dismissed an application from Faruqi's lawyers to have the costs of the first defence strikeout paid immediately, and not at the end of the entire proceeding, which is what usually happens.

Faruqi's barrister James Mack argued that the defence was "clearly defective" and had delayed the case.

"These proceedings have celebrated their first birthday and we’re now here discussing orders that would ordinarily be made at the first case management hearing," Mack said.

"I can’t put it much higher than the interrobang that appears in the first paragraph of the strikeout decision."

An interrobang (‽) is a punctuation mark, rare in both legal judgements and ordinary discourse, that combines a question and exclamation mark.

Wigney wrote in his judgement in August:

"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‽"

BuzzFeed News reported last month that Latham had hired new solicitors, switching from Londy Lawyers to Lander & Rogers, in the wake of the disastrous defence ruling. He has also hired new barristers: Peter Gray SC and Clarissa Amato.

Previously, Latham was represented by Anthony Morris QC, who acted for three Queensland university students in the 18C racial discrimination saga, and is currently representing libertarian senator David Leyonhjelm in the defamation case filed by Greens senator Sarah Hanson-Young.

Amato argued against the early costs application, telling the court that Latham should not wear the blame for the first defence and that its problems were "clearly attributable to those drafting the defence and ought not be visited on the client".

"Mr Latham is an individual, he’s not a company, that’s also a matter to bear in mind," she said.

Amato also said "I couldn’t cavil with the fact that the [first] defence was an interesting document."

But Mack said it was clear Latham had ordered his lawyers to proceed with the first defence.

"This attempt to shift the entire blame for that extraordinary document away from Mr Latham ought to be tempered by the fact it was obviously done on instructions," he said.

Wigney dismissed the costs application, saying the case would most likely proceed quickly now that a new, shorter defence had been filed.

"I think it’s fair to say that the defence that was initially filed by the respondent in this matter was an ill-considered pleading," he said. "That's apparent from my judgement striking the pleading out. I’m not satisfied that alone provides a reasonable basis for ordering costs be paid forthwith."

The court also heard that Latham has not filed an appeal over the defence strikeout, despite saying he would in a Facebook post in August.

The doomed defence had included large amounts of material Latham had compiled on Faruqi, including 164 of Faruqi's tweets, extracts from articles he had posted in his stint as the politics editor of Junkee, and allegations about his association with former Greens senator Lee Rhiannon. It also cited the Lindt Cafe siege in Sydney and bombings in Paris and Brussels.

Unlike most lengthy interlocutory judgements, Wigney's strikeout decision was shared widely on social media.

"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?" Wigney pondered in the first line of the judgement.

Wigney also ran through a series of Faruqi's tweets in the judgement and was generally unconvinced they vilified white people.

"Does Mr Latham seriously suggest that this constitutes 'anti-white racism'?" he wrote in response to one of them.

The matter is back in court on November 19.