Peter Dutton has sought leave to appeal in the high court against his loss in the defamation case he brought against Shane Bazzi, questioning whether there had been a “miscarriage of justice”.
The Liberal party leader has filed an application for special leave to appeal against his loss in the full federal court, arguing that the appeal court erred by finding Bazzi’s tweet “Peter Dutton is a rape apologist” did not convey the defamatory meaning that he “excused rape”.
Dutton won in the federal court at first instance, receiving an order for $35,000 compensation, but the decision was overturned on appeal in May.
The high court may decline to hear the case, but Dutton argues it raises a new issue about how social media users decide the meaning of words.
Bazzi’s tweet, since deleted, included a link to a 2019 Guardian Australia article reporting comments by Dutton that some female refugees in offshore detention were “trying it on” by making claims they had been raped and needed to travel to Australia to have abortions.
The federal court initially found the tweet conveyed the imputation that Dutton “excuses rape” and rejected Bazzi’s defences of fair comments and honest opinion, but on appeal the court found Dutton had failed to prove the tweet carried that meaning.
The majority judges ruled that when read together with the link to the Guardian article, which “centres on allegations of rape, not the actual commission of it”, the term apologist “did not have its literal meaning” but rather that Dutton was “sceptical about claims of rape” but that was “very different from imputing that he excuses rape itself”.
The court concluded: “It is not sufficient that the tweet was offensive and derogatory. Mr Dutton had the onus to establish, on the balance of probabilities, that the reader reasonably would have understood that the tweet conveyed the imputation that he asserted it conveyed.”
In his special leave application, filed with the high court and seen by Guardian Australia, Dutton’s lawyers said they proposed to appeal by arguing the tweet did contain the imputation that he excuses rape.
They said the case raised the question: “Has there been a miscarriage of justice given that Dutton’s imputation is clearly carried by the publication?”
They questioned what the ordinary, reasonable reader could be presumed to understand from a tweet containing a “truncated excerpt of a separate publication”.
“The chief flaw in the [full court’s] reasoning is that it rested on the unstated premise that the ordinary reader’s understanding of Bazzi’s words … was necessarily affected by the Guardian material, rather than his or her understanding of the Guardian material being affected by Bazzi’s words,” they said.”
Dutton’s lawyers argued that for some “unstated reason” the court had decided the reader would “understand the ‘snippet’ of another publication contained in a tweet as having the effect of altering the plain meaning of other contents of the tweet”.
“This was an error,” they said.
They argue that a reader of the tweet would not necessarily know what was in the full Guardian article.
Dutton’s lawyers said the question of how “hyperlinks displaying snippets of other publications” affected the meaning of social media posts had not been considered by the high court. This had “increasing currency in light of social media’s pervasiveness”, they said.
Dutton argued that if his application for special leave were refused, there should be “no order as to costs” because Bazzi had crowdfunded the case.
Bazzi is yet to reply to Dutton’s application.
