exposes the fallacy in our learned friend's submissions about the way in which the ordinary reasonable person would read the primary tweet". He continued:
[O]ne looks just at, "What would ordinary people understand Mr Latham to be saying?" divorced of what they might think about it–just what they understand him to be saying. Our learned friends say they would understand him to be saying, "Disgusting. Not as disgusting as homosexual sexual activity." We submit that's at far too high a level of generality, and it ignores the use of the word "disgusting", the use of the word of–the use of the words "shit", "dick" and "arse", all of which are connoting something well beyond homosexual sexual activity and are going to a particular sexual act which Mr Latham contends is disgusting, and which is disgusting.
…
It's disgusting, the idea that one would have sex in order to cover one's genitals with faecal matter, and it can be hard to say. We've all grappled with this, your Honour. One would not wrestle with this at all if it was a question of gender or if it was a question of race. There's something about sexuality which we are still grappling with as a community. It's why I reached for the thought experiment of substituting "sheila" for "bloke". When we substitute "sheila" for "bloke", none of us [is] in any doubt that it's conveying a defamatory meaning about the individual, not the group. It's not expressing something about heterosexual sex generally.
136 In my view, Dr Collins's "thought experiment" is helpful, and aids in understanding that an ordinary reasonable person would not be in any doubt that the primary tweet does not describe homosexual sexual activities generally–but, rather, was meant and understood to mean that Mr Greenwich engages in disgusting sexual activities. This, it seems to me, does not even involve in this instance ascribing to the ordinary person "a very wide latitude" to draw such an adverse imputation (cf Trkulja at 160–61 [32]). It is the literal meaning of the words.
The second pleaded imputation: in its natural and ordinary meaning, the primary tweet meant and was understood to mean that Mr Greenwich "is not a fit and proper person to be a member of the NSW Parliament because he engages in disgusting sexual activities"
137 The second pleaded imputation was not the subject of detailed oral submissions. Counsel for Mr Greenwich made this submission in their written closing submission:
We submit that, to readers of the Primary Tweet aware that Mr Greenwich is a member of the NSW Parliament, and who had read the Metcalfe Tweet, the Primary Tweet carried by way of true innuendo the second pleaded imputation
…
The extrinsic facts relied upon by Mr Greenwich – that he is a member of the NSW Parliament, and the Metcalfe Tweet — are matters that the Court can infer will have been known by all or almost all readers of the Primary Tweet. The Primary Tweet was a response to the Metcalfe Tweet; readers only got to the Primary Tweet by having first seen the Metcalfe Tweet. Mr Greenwich has been a prominent member of the NSW Parliament since 2012.
The Primary Tweet was a response by Mr Latham to Mr Greenwich's quote as reproduced in the Metcalfe Tweet. That quote was about Mr Latham's fitness for office
