Federal Court of Australia

Barilaro v Shanks-Markovina (No 2) [2021] FCA 950

ORDERS

THE COURT DECLARES THAT:

1.    The first respondent’s proposed defences that imputation 9(b) was a matter of substantial truth and imputation 9(c) was his honest opinion relating to a matter of public interest, based on proper material within the meaning of ss 25 and 31 of the Defamation Act 2005 (NSW) would amount to questioning or impeaching proceedings in Parliament in contravention of Art 9 of the Bill of Rights 1688 (Eng).

THE COURT ORDERS THAT:

2.    The first respondent have leave to file and serve on or before 25 August 2021 a defence in the form lodged for filing on 7 July 2021, subject to it:

(a)    omitting the defence of justification of imputation 9(b),

(b)    omitting the defence that imputation 9(c) was the first respondent’s honest opinion,

(c)    deleting and, if possible, repleading each of contextual imputations 21(a), 21(b), 21(c), 21(e) and 21(f) so that it alleges an act or condition defamatory of the applicant,

(d)    deleting and, if possible, repleading the particulars in schedule A of the proposed defence to identify with precision and in accordance with Pt 16 of the Federal Court Rules 2011 the facts and matters on which he relies as particulars of:

(i)    substantial truth, and

(ii)    proper material within the meaning of s 31(5) of the Defamation Act 2005 (NSW), and identifying under which paragraph of s 31(5) that material falls,

(e)    identifying in each matter complained of the statements relevant to the defence of honest opinion that he alleges are:

(i)    facts or proper material,

(ii)    expressions of opinion, and

(f)    omitting any of the defences to imputations 9(a), 9(d), 15(a) and 15(b) for which proper particulars consistent with the Court’s reasons for judgment delivered today cannot be given.

3.    The first respondent pay the applicant’s costs of the hearing on 23 July 2021 of paragraphs 1 and 2 of the interlocutory application filed on 16 July 2021.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RARES J:

Introduction

1    The first respondent, known as Jordan Shanks, seeks orders in his interlocutory application filed on 16 July 2021 that:

    he have leave to file his defence in the form lodged with the Court six days after it was due to be filed under r 16.32 of the Federal Court Rules 2011 (the leave application),

    imputations 9(b) and 9(c) of the statement of claim filed on 27 May 2021 be struck out as an abuse of the process of the Court under r 16.21(1)(f) (the strike out application), and

    the proceeding be tried by jury pursuant to s 40 of the Federal Court of Australia Act 1976 (Cth).

2    The applicant, the Hon John Barilaro MP, is the Deputy Premier of the State of New South Wales. He opposes the leave and strike out applications.

3    The statement of claim pleads, and Mr Shanks admits, that he published the two matters complained of, being YouTube videos. The first, entitled ‘bruz’, was first published on or about 14 September 2020 (the bruz video) and the second, entitled ‘Secret Dictatorship’, was first published on or about 21 October 2020 (the Secret Dictatorship video). Mr Barilaro’s solicitor, Paul Svilans, deposed that as at 21 July 2021 there were over 756,000 views of the bruz video, an increase of over 121,000 since the proceeding commenced on 27 May 2021, and over 384,000 views of the Secret Dictatorship video, an increase of over 43,000 since the proceeding commenced.

4    The basis of the strike out application is that Mr Barilaro pleaded, and Mr Shanks admits, that the bruz video conveyed imputations that Mr Barilaro committed perjury nine times (imputation 9(b)), and so conducted himself in committing perjury nine times that he should be gaoled (imputation 9(c)). I have attached a transcript of the bruz video to these reasons as annexure A and will refer to the numbered paragraphs of that transcript, where relevant, below. Mr Shanks says in the bruz video that Mr Barilaro committed perjury nine times in telling the New South Wales Parliament that he did not personally sign off on a deal to give taxpayers’ money to a company run by his friend (bruz video pars 74–78). Mr Shanks argues that he would infringe Parliamentary privilege under Art 9 of the Bill of Rights 1688 (Eng) if he pleaded or sought to prove justification of imputation 9(b) or that, based on its substantial truth, imputation 9(c) was his honest opinion, as he would otherwise seek to do. Mr Shanks submits that this impediment would make the trial of issues on those two imputations unfair because Parliamentary privilege would preclude his proving, as he would wish to do, that Mr Barilaro, in fact, committed perjury on nine occasions.

5    Mr Barilaro, on the other hand, opposes the strike out application because of what he says would be the unfairness of Mr Shanks being able to make those serious defamatory statements with impunity by using Parliamentary privilege as a shield (the Parliamentary privilege issue).

6    Mr Barilaro argues that the defence has numerous pleading defects that would be struck out or require repleading if Mr Shanks were allowed to file it (the pleading issues) and that Mr Shanks’ explanation for his default in filing the defence is inadequate.

7    The issue of whether the proceeding ought be tried by jury cannot be considered now because the second respondent, Google LLC, has yet to appear after I granted Mr Barilaro leave to serve it in the United States of America: Barilaro v Shanks-Markovina (No 1) [2021] FCA 789. In those reasons, I found that there was sufficient evidence to suggest that Mr Barilaro will be able to prove at the trial that Google published and continued to publish the two matters complained of through making them available for streaming or downloading on the YouTube website that it administered and operated.

8    It is convenient to deal with the Parliamentary privilege issue, which is the basis of the strike out application, first, before dealing with the pleading issues and then the leave application.

The legislative context

9    Article 9 of the Bill of Rights applies to the Parliament of New South Wales by force of s 7 of the Imperial Acts Application Act 1969 (NSW) which preserves its continuing effect as set out in modern English in the Third Schedule to that Act. One of the grievances that the Houses of Parliament recited against James II was:

… by the assistance of divers evil counsellors, judges, and ministers employed by him did endeavour to subvert and extirpate the protestant religion, and the laws and liberties of this kingdom.

    …

8.    By prosecutions in the court of King’s bench, for matters and causes cognizable only in parliament; and by divers other arbitrary and illegal courses.

(emphasis added)

10    The Houses then declared, in Art 9, the foundation of the absolute privilege, known as Parliamentary privilege, as follows:

… for the vindicating and asserting their ancient rights and liberties, declare—

…

9.    That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.

(emphasis added)

11    Relevantly, the Defamation Act 2005 (NSW) provided at the dates of the first publications of the bruz and Secret Dictatorship videos:

8    Single cause of action for multiple defamatory imputations in same matter

A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter.

...

25    Defence of justification

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

26    Defence of contextual truth

It is a defence to the publication of defamatory matter if the defendant proves that—

(a)    the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and

(b)    the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

…

31    Defences of honest opinion

(1)    It is a defence to the publication of defamatory matter if the defendant proves that—

(a)    the matter was an expression of opinion of the defendant rather than a statement of fact, and

(b)    the opinion related to a matter of public interest, and

(c)    the opinion is based on proper material.

…

(5)    For the purposes of this section, an opinion is based on proper material if it is based on material that—

(a)    is substantially true, or

(b)    was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or

(c)    was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.

(emphasis in original)

12    As Beaumont J explained in Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223 at 231, the Parliament of the Commonwealth enacted the Parliamentary Privileges Act 1987 (Cth) to overturn interpretations in the Supreme Court of New South Wales of Art 9 (which applied by force of s 49 of the Constitution) in the two trials of Justice Lionel Murphy (R v Murphy (1986) 5 NSWLR 18; see too Leyonhjelm v Hanson-Young (2021) 387 ALR 384 at 400–404 [30]–[51] per Rares J). Relevantly, s 16(3) of the Parliamentary Privileges Act provides:

16    Parliamentary privilege in court proceedings

…

(3)     In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a)     questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b)     otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c)     drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

The pleadings

13    Mr Barilaro pleads that the bruz video, in its natural and ordinary meaning, conveyed the following five imputations, or imputations that do not differ in substance (when I refer to imputations in these reasons I intend to include ones that do not differ from them in substance), that were defamatory of him, namely (statement of claim par 9):

(a)    Mr Barilaro is a corrupt conman;

(b)    Mr Barilaro committed perjury nine times;

(c)    Mr Barilaro has so conducted himself in committing perjury nine times that he should be gaoled;

(d)     Mr Barilaro corruptly gave $3.3 million to a beef company;

(e)     Mr Barilaro corruptly voted against a Royal Commission into water theft.

14    Mr Barilaro pleads that the Secret Dictatorship video, in its natural and ordinary meaning, conveyed the following three imputations that were defamatory of him, namely (statement of claim par 15):

(a)    Mr Barilaro has acted corruptly by engaging in the blackmailing of councillors;

(b)    Mr Barilaro has acted corruptly by engaging in the blackmailing of councillors using taxpayer money;

(c)    Mr Barilaro has pocketed millions of dollars which have been stolen from the Narrandera Shire Council.

15    In his defence, Mr Shanks:

    admits that he published the bruz video of and concerning Mr Barilaro,

    admits that the bruz video conveyed imputations 9(a), 9(b) and 9(c) and that they were defamatory of Mr Barilaro,

    denies that the bruz video conveyed imputations 9(d) and 9(e), but admits that, if either was conveyed, it was defamatory of Mr Barilaro,

    pleads a defence under s 25 of the Defamation Act that each of imputations 9(a) and 9(b) is substantially true and provides the following particulars:

(i)    Such particulars as Shanks is presently able to give in respect of imputation 9(a) are set out in Schedule A.

(ii)    The balance of the particulars on which Shanks seeks to rely in respect of imputation 9(a), and particulars in respect of imputation 9(b), cannot be given unless and until the Applicant and the NSW Legislative Council waive Parliamentary privilege in respect of the Statements.

    pleads a defence under s 26 of the Act that the bruz video also conveyed the following contextual imputations (par 21):

(a)    the Applicant blamed the National Parks and Wildlife Service of New South Wales (NPWS) for the bushfires that devastated the State in late 2019 and early 2020, by accusing the NPWS of neglecting its responsibility for conducting controlled hazard burns on ideological grounds, when in truth he bore greater responsibility than the NPWS for the bushfires, having supported cutting funding to the NPWS by 27%, the number of rangers by 100, and the number of people who make plans for hazard reduction burns from 36 to 10;

(b)    the Applicant falsely accused the NPWS of neglecting its responsibility for conducting controlled hazard burns on ideological grounds, thereby exacerbating the bushfires that devastated New South Wales in late 2019 and early 2020, when he well knew that the reason controlled hazard burns had not been conducted was the cuts his government had made to funding of the NPWS;

(c)    while the catastrophic bushfires that devastated regional New South Wales in late 2019 and early 2020 were raging, the Applicant decided to continue his holidays in London rather than return to the State to assist in managing the response to the fires;

(d)    the Applicant is a hypocrite, in that having publicly stated that he supported a Royal Commission into water corruption, he voted against a motion moved in the NSW Parliament to establish such a Royal Commission;

(e)    the Applicant opposed a cull of wild horses in the Kosciuszko National Park, despite well knowing that the horses were causing severe damage to tens of thousands of hectares of wilderness and pushing some 27 native species to the brink of extinction;

(f)    the Applicant championed legislation to protect wild horses in the Kosciuszko National Park from being culled, despite well knowing of the damage that they were causing to tens of thousands of hectares of wilderness and some 27 native species and that the NPWS and scientists had proposed a cull, without declaring in accordance with his legal obligations that he had received $10,000 in donations from a donor who had an interest in the passage of the legislation; and

(g)    the Applicant breached his obligations as a Member of Parliament by failing to disclose on the register of interests that he earns substantial income from a massive estate that he owns and rents out via platforms such as Airbnb and Stayz.

(emphasis in original)

    pleads that the contextual imputations are in addition to those of which Mr Barilaro complains, are substantially true and, because of the substantial truth of the contextual imputations, those of which Mr Barilaro complains, to the extent that they are admitted or found to have been conveyed by the bruz video, do not further harm his reputation,

    pleads a defence under s 31 of the Act that each of imputations 9(a), 9(c) and, if either or both are found to have been conveyed, 9(d) and 9(e), each was an expression of Mr Shanks’ opinion that related to a matter of public interest and was based on proper material. The particulars of the proper material were:

(i)     Particulars of such of the proper material as Shanks is able to give in respect of imputation 9(a) are set out in Schedule A.

(ii)     Particulars of the proper material in respect of imputation 9(c), and the balance of the particulars on which Shanks seeks to rely in respect of imputation 9(a), cannot be given unless and until the Applicant and the NSW Legislative Council waive Parliamentary privilege in respect of the Statements.

(iii)     Particulars of the proper material in respect of imputations 9(d) and (e) are set out in Schedule A.

    admits that he published the Secret Dictatorship video, denies that it conveyed any of imputations 15(a), 15(b) or 15(c), but admits that, if any was conveyed, it was defamatory of Mr Barilaro,

    pleads a defence under s 31 of the Act that if either of imputations 15(a) or 15(b) were conveyed by the Secret Dictatorship video, it was an expression of Mr Shanks’ opinion, that related to a matter of public interest and was based on proper material, particulars of which were set out in Schedule A to the defence,

    pleads that if he is found liable, he will rely in mitigation of damages on such of imputations 9(a) and 9(b) and the contextual imputations as are found to be substantially true and the facts, matters and circumstances he proves in support of his pleaded defences.

16    Schedule A of the defence contains 79 paragraphs (which include numerous subparagraphs) as particulars of the defences to the bruz video (comprising A1–A67) and to the Secret Dictatorship video (comprising A68–A79).

17    On 16 July 2021, Mr Shanks’ solicitor, by letter, provided Mr Barilaro with particulars of the matters that he alleged were the subject of Parliamentary privilege.

The strike out application

Mr Shanks’ submissions

18    Mr Shanks argued that it would be an abuse of process to allow Mr Barilaro to rely on imputations 9(b) and 9(c). That was, Mr Shanks contended, as a result of his inability to rely on defences of justification to imputation 9(b) and honest opinion to imputation 9(c) because of Parliamentary privilege. He wished to be able to prove that Mr Barilaro had appeared before a Parliamentary committee of the New South Wales Parliament (Portfolio Committee No. 3 (Education) of the Legislative Council), and committed perjury on the alleged occasion. He submitted that unless Mr Barilaro, somehow, caused Parliamentary privilege to be waived in respect of his giving evidence before the committee, including by obtaining an Act of Parliament authorising this to occur, Mr Shanks would be placed in an unfair position. That was because, Mr Shanks argued, Mr Barilaro would be able to recover damages in respect of the admissions in the defence that imputations 9(b) and 9(c) were conveyed and defamatory when, had he been able to defend them, he may have been able to make out his defences. Mr Shanks asserted that, but for the operation of Art 9, he would be able to lead evidence which would prove the bases for those defences.

19    Mr Shanks argued that r 16.21(1)(f) enabled the Court to strike out a pleading or stay a part of a proceeding where the pleading or part of the proceeding would otherwise be an abuse of the Court’s process. He contended that to allow Mr Barilaro to proceed on imputations 9(b) and 9(c) without a waiver of Parliamentary privilege would result in manifest unfairness, relying on, among other authorities, Walton v Gardiner (1993) 177 CLR 378 at 392–393.

20    Mr Shanks submitted that, although rare, there are circumstances in which a defamation claim may be stayed where a publisher is unable to rely on or prove a defence because Art 9 would preclude him from impugning or calling into question the truth of statements made under Parliamentary privilege. He argued that his was such a case, relying in particular on Wright v Lewis (1990) 53 SASR 416, Prebble v Television New Zealand Ltd [1995] 1 AC 321 and Rann v Olsen (2000) 76 SASR 450. Mr Shanks contended that his case was on all fours with Wright 53 SASR 416. He noted that, although the Privy Council found that the Full Court in Wright 53 SASR 416 had wrongly decided the construction of Art 9, had it not erred in that respect, it would properly have granted a stay: Prebble [1995] 1 AC at 338D–E. He also relied on Rann 76 SASR at 487–488 [207], [213] per Doyle CJ, 491–492 [230]–[232] per Prior J, 497 [270]–[272] per Perry J, 500 [284] per Mullighan J and 521 [455]–[460] per Lander J. Mr Shanks contended that his situation fell within their Lordship’s description in Prebble [1995] 1 AC at 338C–F of “extreme circumstances” that would preclude the fair determination of the issues between the parties, and thus created the need for a stay of proceedings on imputations 9(b) and 9(c) unless and until Parliamentary privilege was waived. He submitted that to find otherwise would be to discourage free reporting on members of Parliament or others who had told falsehoods during Parliamentary proceedings, because a publisher sued by that parliamentarian or other person would always be barred by the absolute privilege, afforded by Art 9 or s 16(3) of the Parliamentary Privileges Act, from pleading a defence of substantial truth or proper material for a defence of honest opinion where such a defence otherwise would be available.

The Parliamentary privilege issue

Principles of Parliamentary privilege

21    In Prebble [1995] 1 AC 321, Lord Browne-Wilkinson gave the advice of Lords Keith of Kinkel, Goff of Chieveley, Mustill, Nolan and himself. Their Lordships encapsulated the following principle of the operation of Art 9 of the Bill of Rights, namely (at 337A–B):

… parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading. Such matters lie entirely within the jurisdiction of the House, subject to any statutory exception …

(emphasis added)

22    For centuries, the courts have recognised that Art 9 reflects a fundamental principle of the system of government in a representative democracy that separates and demarks the exclusive jurisdiction of Parliament over its own processes from the jurisdiction that the judiciary might otherwise have had. As I noted in Leyonhjelm 387 ALR at 402 [40]:

In The Queen v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 162 (and see at 164–165), Dixon CJ, giving the judgment of the Court, said that under s 49 of the Constitution “it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise”. This view is also consistent with recent decisions of the Supreme Court of the United Kingdom and the New Zealand Court of Appeal.

(emphasis added)

23    The line of authorities that I discuss below illustrates that the courts have recognised the need to balance this principle with the public interest of ensuring that proceedings in Parliament can be discussed in public and that freedom of speech, expression of opinion and the ability of persons affected by what is said under the absolute privilege conferred in Art 9 to clear their reputation.

24    In Stockdale v Hansard (No 1) (1839) 9 Ad & El 1; 112 ER 1112, the Court of Queen’s Bench held that one House of Parliament could not, by its own authorisation, confer immunity from suit on the publisher (Hansard) of its debates or papers based on Art 9 of the Bill of Rights. Immediately after that decision, the United Kingdom Parliament enacted the Parliamentary Papers Act 1840 (UK: 3 & 4 Vict c 9). In New South Wales, this protection is now provided by the Parliamentary Papers (Supplementary Provisions) Act 1975 (NSW).

25    In Wason v Walter (1868) LR 4 QB 73, the plaintiff had caused a petition to be presented to the House of Lords that alleged that about 30 years earlier, when a barrister, the recently appointed Kelly CB, had knowingly deceived an election committee of the House of Commons. The petition sought an enquiry into the now Lord Chief Baron’s conduct and, if the allegation were substantiated, his removal from office. The Times published an editorial and a report of the debate in the House of Lords when the petition was presented, during which Earl Russell, who presented Mr Wason’s petition, decried it as a fabrication, as did other members of the House including Lord Chelmsford LC. Mr Wason sued the editor of The Times, Mr Walter, as its publisher, for libel. Cockburn CJ, giving the reasons of himself, Lush, Hannen and Hayes JJ, held that a fair and accurate report of a debate in either House of Parliament containing disparaging matter about the conduct or character of an individual was not actionable by him or her (LR 4 QB at 82–83). As the Lord Chief Justice explained, following the decision in Stockdale 9 Ad & El 1; 112 ER 1112, the enactment of the Parliamentary Papers Act 1840 ensured that the publication of what was said in debates, as well as all papers, votes or proceedings, that had been authorised for publication by order of either House of Parliament, was immune from suit (LR 4 QB at 91–92).

26    Cockburn CJ said that before Stockdale 9 Ad & El 1; 112 ER 1112, no previous action had been brought in respect of the publication of a parliamentary debate. In discussing the purpose of the enactment of the Parliamentary Papers Act, he said (LR 4 QB at 93):

We cannot but think that, — had the noble and learned persons referred to foreseen that such an action as the present would be brought, in which a party, having by his own attack upon a public man given rise to a debate in one of the houses of parliament which he knew would, in the ordinary course of things, be reported, charges as a libel the publication of the discussion which he himself has provoked, and which publication he would have hailed with satisfaction if the result of it had been favourable to himself and damaging to the object of his attack, — they would have paused before they assumed that by law such an action could be maintained, or at all events would have seen the necessity for an immediate amendment of a law so defective.

…To us it seems clear that the principles on which the publication of reports of the proceedings of courts of justice have been held to be privileged apply to the reports of parliamentary proceedings. The analogy between the two cases is in every respect complete. If the rule has never been applied to the reports of parliamentary proceedings till now, we must assume that it is only because the occasion has never before arisen.

(emphasis added)

27    Finally, Cockburn CJ concluded (LR 4 QB at 96):

… We pass on to the second branch of this rule, which has reference to alleged misdirection in respect of the second count of the declaration, which is founded on the article in the Times commenting on the debate in the House of Lords, and the conduct of the plaintiff in preferring the petition which gave rise to it. We are of opinion that the direction given to the jury was perfectly correct. The publication of the debate having been justifiable, the jury were properly told the subject was, for the reasons we have already adverted to, pre-eminently one of public interest, and therefore one on which public comment and observation might properly be made, and that consequently the occasion was privileged in the absence of malice. 

(emphasis added)

28    Importantly, in Pervan v The North Queensland Newspapers Company Ltd (1993) 178 CLR 309 at 319, Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ said that Cockburn CJ’s reasons in Wason LR 4 QB 73 reflected the common law, together with Mangena v Wright [1909] 2 KB 958 (see too Gately on Libel & Slander (12th ed online, Sweet & Maxwell, 2017)) at [12.21]).

29    Mr Wason next sought to lay on information before a magistrate that Earl Russell, Lord Chelmsford LC and Kelly CB had conspired to deceive the House of Lords. The magistrate refused to let Mr Wason do so. He applied to the Court of Queen’s Bench for a rule that the magistrate show cause why he should not be compelled to permit Mr Wason to lay an information which would commence a private prosecution. The Court of Queen’s Bench rejected that application: Ex parte Wason (1869) LR 4 QB 573 per Cockburn CJ at 574–576, Blackburn J at 576, Lush J at 576–577 and Hayes J at 577. As Lush J said, obviously with reference to Art 9 (at 577):

… we ought not to allow it to be doubted for a moment that the motives or intentions of members of either House cannot be inquired into by criminal proceedings with respect to anything they may do or say in the House.

(emphasis added)

30    In Adam v Ward [1917] AC 309, Major Adam MP made a speech in the House of Commons that conveyed the meaning that Major-General Scobell had made a confidential report to his superiors that contained wilful and deliberate misstatements of fact as to officers under his command with the result that injustice had been caused to one of the regiments under his command and that he had engaged in “conduct unworthy of an officer and a gentlemen within the meaning of the King’s Regulations” (at 312 per Lord Finlay LC). Major Adam referred to the case of one named officer but did not say in his speech that he, too, was a subject of Major-General Scobell’s report. Because the King’s Regulations prevented Major-General Scobell responding directly, he had to bring the matter before the Army Council which investigated the charge that Major Adam had made in the House of Commons. The Army Council prepared a report that completely exonerated the Major-General, finding that Major Adam’s charge was “without foundation”.

31    The defendant, Sir Edward Ward, the secretary of the Army Council, published its report widely, including to the press, which reported it fulsomely. Major Adam sued Sir Edward for libel and recovered £2,000 damages at the trial. The Court of Appeal held that the publication of the report occurred on an occasion of qualified privilege, there was no evidence that its publication was actuated by malice, and so entered a verdict for the defendant (Adam v Ward (1915) 31 TLR 299).

32    The House of Lords upheld the Court of Appeal. Their Lordships’ decision established that where a person whose reputation had been damaged by a speech under absolute (or Parliamentary) privilege, he, she, or others, such as the Army Council who could inquire into the subject matter of the speech, had a qualified privilege to respond to as wide an audience as the maker of the speech actually or notionally had. Lord Finlay LC said ([1917] AC at 319):

… It is said that there was unnecessary publicity given to their findings, but it must be remembered that Major Adam’s speech in the House of Commons had been extensively reported, as he obviously intended it should be when he made his attack upon Major-General Scobell, and the Army Council did no more than their duty in giving a wide publicity to their finding that the charge was unfounded.

It has been said that their observations as to the plaintiff, Major Adam, were not relevant to their vindication of Major-General Scobell, and that privilege does not extend to this portion of the letter. These observations appear to me to be directly relevant. The plaintiff did not mention in his speech in the House of Commons that he was himself interested in the matter, and any one who heard or read his speech would have been left under the impression that he was a perfectly disinterested person who had taken up the case of a brother officer. The vindication by the Army Council of Major-General Scobell would have been incomplete if the true relation of Major Adam to these proceedings had been left out.

(emphasis added)

33    Lord Dunedin explained that the purpose of extending the occasion of qualified privilege to publications to a mass audience was to enable a person traduced in proceedings in Parliament to respond to, or to publish another body’s refutation of, the attack. He said, conscious of the Parliamentary privilege under which Major Adam had spoken ([1917] AC at 324 and see too per Lord Atkinson at 341–342):

… can it for a moment be supposed that this publication is not a performance of a moral if not even of a legal duty and as such privileged? Let us look at the situation. General Scobell is grossly attacked in a speech in the House of Commons — a speech which in that place, from motives of high public policy, is protected by absolute privilege. Under the King’s Regulations he may not take up the matter himself and defend himself in the public Press. He is bound to refer the matter to the Army Council and await their verdict. The verdict is in his favour. What would that avail him unless there was a right in the Army Council to publish the result at which they had arrived? If it were not so, then the absolute privilege of the House of Commons, intended to safeguard the liberty of discussion, would be really turned into an abominable instrument of oppression.

… My Lords, I think that a man who makes a statement on the floor of the House of Commons makes it to the world. True it never reaches every person in the world. In some cases, if the orator is unknown to fame and the statement intrinsically unexciting, it may not reach very many. But no one knows whom it may reach, and it was only, I think, plain justice to General Scobell that the ambit of the contradiction should be spread so wide as if possible to meet the false accusation wherever it went. Do what you will, the stern chase after a lie that has got the start is apt to be a long one.

(emphasis added)

34    Lord Atkinson said (at 343):

… where a man, through the medium of Hansard’s reports of the proceedings in Parliament, publishes to the world vile slanders of a civil, naval, or military servant of the Crown in relation to the discharge by that servant of the duties of his office he selects the world as his audience, and that it is the duty of the heads of the service to which the servant belongs, if on investigation they find the imputation against him groundless, to publish his vindication to the same audience to which his traducer has addressed himself.

(emphasis added)

35    Lord Shaw of Dunfermline said that Major Adam made his charge against Major-General Scobell deliberately “under the shelter of the absolute privilege which covers proceedings in Parliament, and it was directed against a man whose mouth was closed by the King’s Regulations applicable to the Army” (at 345).

36    Because what is said in Parliament necessarily is, or relates to, a matter of public interest, there is, in addition to such occasions of qualified privilege, a common law right to express one’s honest opinion or make a fair comment on or about such a statement or proceeding in Parliament: Wason LR 4 QB at 96; Cook v Alexander [1974] QB 279 at 288A–D per Lord Denning MR, 290D–E per Buckley LJ and 290F, 291B–E per Lawton LJ. And, of course, there is also a common law right to make a fair report of proceedings in Parliament: Wason LR 4 QB 573; Cook [1974] QB 279.

37    In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 571, Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ held that in the Constitution there is an implied freedom of communication on government and political matter (the constitutional freedom). They said that:

… each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion – the giving and receiving of information – about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter.

(emphasis added)

38    The Defamation Act and its analogues equally reflect these fundamental values that underpin the free flow of information, comments, opinions and arguments that are necessary to the effective functioning of a Parliamentary democracy. Thus, a publisher can avail himself, herself or itself of the statutory defences that the Act provides, including of:

    fair report of proceedings of public concern (including any proceedings in public of a parliamentary body) (s 29(1) and (4)(a)),

    qualified privilege where the publisher proves that recipient has an actual or apparent interest in receiving information on some subject, the matter is published to the recipient in the course of giving him, her or it information on that subject and the publisher’s conduct in publishing that matter is reasonable in the circumstances (s 30(1)), and

    honest opinion that relates to a matter of public interest and is based on proper material (s 31(1)).

39    The public interest, reflected in Art 9, ensures that proceedings in Parliament are not actionable outside the House in which they occur. This protection exists so that persons, including witnesses before committees, can speak freely in Parliament (or its committees). Nonetheless, the common law, statutes including the Defamation Act, and the constitutional freedom recognise a concomitant duty or interest in every member of the community to be able to report on or about those proceedings, express opinions, provide further information or arguments in respect of them that, although apparently defamatory of a person who made a statement in or was the subject of a proceeding in Parliament, will not be actionable if made without malice or if not unreasonable.

40    The significance of the common law rights and defences established by the authorities, the constitutional freedom and the additional statutory defences is that the law has evolved balancing mechanisms that respect the strictures of Art 9, yet allow the victim of a public attack on him or her made under absolute privilege in proceedings in Parliament to respond to the attack without being liable for defamation. Others who have an interest in, or duty to, discuss the subject matter can publish to the public at large matter relating to or refuting the attack and can also disseminate information, opinions and arguments about what is said or done in proceedings in Parliament. And, as Adam [1917] AC 309 and Lange 189 CLR 520 show, a publisher has a qualified privilege to denounce a statement made in Parliament as a falsehood in a manner that does not infringe Art 9 and does not attract liability for defamation.

The cases on which Mr Shanks relies

41    In Wright 53 SASR 416, the plaintiff, a Liberal member of the South Australian Parliament, made a speech in the House of Assembly criticising as improper the obtaining of planning approval by the former secretary to a previous Labor Premier. The former secretary wrote a letter to the editor of The Advertiser which published it. The plaintiff sued both the former secretary and The Advertiser as publishers. The defendants raised defences of qualified privilege, fair comment and justification. The District Court judge struck out all of the references to the Parliamentary speech in the pleading of those defences.

42    The Full Court of the Supreme Court of South Australia allowed the publishers’ appeal. The Attorney-General, on behalf of the South Australian Parliament, and the plaintiff, argued that the publishers could only prove, as a fact, that the plaintiff made the speech in the House but could not make any submission or inference about it at all by force of Art 9 so that the District Court judge had been correct to strike out, effectively, all of the substantive defences of qualified privilege, fair comment and justification.

43    The Full Court observed that if that argument were correct, there would be:

    “a gross distortion of the law of defamation in its application” to a case where a member of Parliament sued in respect of criticism of what he or she had said in proceedings in Parliament (53 SASR at 421–422 per King CJ),

    a “lopsided and unfair contest” that resulted in the defences of qualified privilege being “substantially emasculated”, justification being “completely denied”, fair comment not being able to include certain statements of fact and damage being assessed “on the entirely artificial and false basis that no weight whatsoever can be given to the character or quality of what was said in Parliament to the attack” (at 428, 437 per White J), and

    “the defendants would necessarily be denied the opportunity of raising defences otherwise available by reference to the general law and would thus be unable to obtain justice” (at 441 per Olsson J).

44    Based on the law as explained above, in my opinion the Full Court’s reasoning in Wright 53 SASR 416 was erroneous in respect of the limitations that it found Art 9 imposed on the publishers there being able to conduct their defences of qualified privilege and fair comment. I am of opinion that the publishers in that case should have been able to conduct both those defences.

45    The Full Court appears to have accepted the South Australian Parliament’s view (see at 429) that the member’s speech was admissible for the limited purpose of proving what was said in Parliament as a fact, although it is not clear why, unless it was to support their ultimate conclusion that the publisher could defend using anything said in that speech for all purposes.

46    King CJ held that the defendants could justify their publication that imputed that the plaintiff’s speech in Parliament was untrue. His Honour construed Art 9 as not precluding the forensic examination of the statements and conduct in Parliament of a member who instituted a proceeding for defamation. He said that the member would not be inhibited by fear of legal consequences in exercising his (or her) freedom of speech in Parliament or parliamentary duties “because he would be aware that his actions and motives could not be examined in court unless he instituted the proceedings which rendered such examination necessary” and that, when this occurred, the defendant, in defending his (her or its) publication, could not be regarded as impeaching or questioning the freedom of speech, debates or proceedings in Parliament in breach of Art 9. King CJ said that the court could not fairly be regarded as permitting the defendant to defend the proceedings in contravention of Art 9 (53 SASR at 426). He reasoned (at 426–427):

… The object would be merely to repel the accusation made by the member that a false imputation had been made against him. If Parliamentary privilege operated to prevent a person, exposed to an action by a member for defamation, from defending himself by proving the truth of his criticism of the statements or conduct of the member, it would indeed be “turned into an abominable instrument of oppression”: Adam v Ward (supra).

I have reached the conclusion for the above reasons that Parliamentary privilege does not preclude the defendants from alleging and proving the truth of the imputations.

47    White J “agree[d] unreservedly” with the conclusions reached by King CJ (53 SASR at 427) but added that it was “a far greater injustice to deny a defendant the right to rely upon his defence that he spoke the truth in his response [to the Parliamentary statement] than to deny him the defence of qualified privilege” (at 431). White J seems to have thought that it would “be impossible” for the defendant to respond to an allegation of malice unless the Court not only could read what the plaintiff said as recorded in Hansard (at 432–433):

but is also able to scrutinise and draw inferences from what the plaintiff member said in Parliament and to make a judgment after comparing the character or quality thereof, such as the balance or otherwise of the initial attack, gravamen of the charge etc with the character and quality of the defendant’s response. The only rational way of arriving at a just conclusion is by way of comparison of all relevant factors in the original attack and in the counter-attack. The effective availability of the defence of qualified privilege will be gravely eroded and, indeed, almost undermined altogether unless the court can scrutinise and pass upon the circumstances (the character or quality) of the utterances in Parliament.

(bold emphasis added, italics emphasis in original)

48    With respect, that is not and never has been the law in regard to the issue of whether the publication complained of was actuated by malice. That issue is resolved by comparing whether the defendant’s state of mind in publishing was actuated by an improper motive, not by comparing both the attack and the counter attack: Horrocks v Lowe [1975] AC 135 at 149H–150E, 151A–B per Lord Diplock; Roberts v Bass (2002) 212 CLR 1 at 31 [76] per Gaudron, McHugh and Gummow JJ (with whom Kirby J agreed at 66–67 [185] on their description of the common law elements of malice in relation to the constitutional freedom); Leyonhjelm 387 ALR at 414–415 [84]–[86], 418–419 [99]–[100], 426–429 [136]–[143] per Rares J.

49    White J seems to have confused what the House of Lords decided in Adam [1917] AC 309 in considering the issue of malice. His Honour quoted (53 SASR at 433) from Lord Finlay LC’s speech in which the Lord Chancellor characterised Major Adam’s speech as “a violent attack upon the character of Major-General Scobell” ([1917] AC at 318–319). There, his Lordship identified what created the occasion of qualified privilege, being an inference, from the circumstances, that Major Adam’s obvious intention was that his speech would be extensively reported, and would cause an inquiry by the Army Council. Because the speech was to the House of Commons, its refutation could be made to an equally wide audience within the privileged occasion.

50    White J also considered that, if a publisher were restrained from pleading material due to the operation of Art 9, the defence of fair comment would not be able to include “an allegation that certain matters are statements of fact” (53 SASR at 437). But, it is not clear from the report what the statements of fact to which White J referred were. The District Court judge had struck out, as facts truly stated, the publishers’ plea of the fact that the speech had been made and its content. However, evidence of the speech itself plainly was admissible as a fact (as opposed to the truth or otherwise of its contents) on which any member of the public could comment: Wason LR 4 QB at 96; Adam [1917] AC 309; see too Leyonhjelm 387 ALR at 400–405 [29]–[55] per Rares J, 440–447 [222]–[255] per Wigney J, 472–481 [345]–[385] per Abraham J.

51    Olsson J considered that Hunt J’s construction of Art 9 in Murphy 5 NSWLR 18 was correct and held that Art 9 was a “shield of defence” that extended “only as far as is necessary to protect a member of Parliament against legal proceedings sought to be brought against him by virtue of his actions within the House” (53 SASR at 447 and see too 448). In Murphy 5 NSWLR 18, Hunt J held that Art 9 only applies to cases in which a court is being asked to expose the maker of a statement to legal liability for what he or she said in Parliament: Leyonhjelm 387 ALR at 404 [51]. In my opinion, Hunt J’s construction of Art 9 was wrong as explained below (see [69]).

52    At no point in the judgments in Wright 53 SASR 416 did any of their Honours mention or discuss the possibility of a stay of proceedings if they had concluded that the appeal should otherwise be dismissed. Instead, they allowed the appeal so that the publishers could pursue their defences without any restriction based on Art 9 because the parliamentarian had initiated the proceeding.

53    In Prebble [1995] 1 AC at 337H–339C, the Privy Council discussed and overturned the New Zealand Court of Appeal’s decision to stay that proceeding. They held that the allegations relating to the defence of justification that had been struck out by reason of Art 9 “were comparatively marginal” (at 338F–G). Their Lordships discussed Wright 53 SASR 416, Adam [1917] AC 309 and News Media Ownership v Finlay [1970] NZLR 1089. They expressed sympathy with the concern of the Full Court in Wright 53 SASR 416, but concluded that its construction of Art 9 was erroneous. They held that the privilege was that of Parliament, not the individual member (at 335F–G). Their Lordships said (at 338D–F):

Their Lordships are of the opinion that there may be cases in which the exclusion of material on the grounds of Parliamentary privilege makes it quite impossible fairly to determine the issue between the parties. In such a case the interests of justice may demand a stay of proceedings. But such a stay should only be granted in the most extreme circumstances. The effect of a stay is to deny justice to the plaintiff by preventing him from establishing his good name in the courts. There may be cases, such as Wright’s case, 53 S.A.S.R. 416, where the whole subject matter of the alleged libel relates to the plaintiff’s conduct in the House so that the effect of Parliamentary privilege is to exclude virtually all the evidence necessary to justify the libel. If such an action were to be allowed to proceed, not only would there be an injustice to the defendant but also there would be a real danger that the media would be forced to abstain from the truthful disclosure of a member’s misbehaviour in Parliament, since justification would be impossible. That would constitute a most serious inroad into freedom of speech.

(emphasis added)

54    However, their Lordships did not analyse the underlying reasoning in Wright 53 SASR 416 as to the availability or viability of the defences other than justification. As I have noted above, the Full Court was plainly wrong in considering that the publishers would have not been able to plead defences of qualified privilege or fair comment.

55    Moreover, as the Privy Council observed, no issue of Parliamentary privilege arose in Adam [1917] AC 309. That was because the only defence there was qualified privilege and the question was whether the wide extent of publication by the defendant, on behalf of the Army Council, was outside that warranted by the privileged occasion. Their Lordships said, correctly in my view, that “the only material point was the fact that the allegations against X [viz Major-General Scobell] had been made in Parliament” (Prebble [1995] 1 AC at 336B–D). That is, the Privy Council treated what Major Adam had said under absolute privilege as allegations, not facts, and on that basis the Army Council could inquire into them as allegations and publish its findings about them under qualified privilege, including the findings that the allegations were “groundless” ([1917] AC at 343 per Lord Atkinson).

56    Their Lordships explained (and I agree) that the purpose of Art 9 is to separate the roles of the courts and Parliament as to the control over what is said or done in proceedings in Parliament: Prebble [1995] 1 AC at 332C–G and 337D–G. Thus, they held that it is for Parliament alone to examine and adjudge whether what has occurred in proceedings within it should have any legal consequences. And, they held that, where the Hansard record of a speech, debate, vote or some other objective fact is tendered to prove that something occurred in Parliament that is relevant in a judicial proceeding, the duty of the court is to ensure that the objective fact is not used to impeach or question the purpose or motivation of those in the Parliamentary proceedings who made the speech or otherwise caused the fact to occur. Thus, a defence or particular of justification that impeaches or questions the veracity, purpose or motivation of a party or witness in proceedings in Parliament is not justiciable because of Art 9’s operation. It is for Parliament or the relevant House to decide whether to enquire into and then to adjudge any question as to any improper or wrongful use of its processes.

57    Subsequently, in Rann 76 SASR 450, Mr Rann, the Leader of the Opposition in the Parliament of South Australia, sued the Premier of that State, Mr Olsen, claiming that Mr Olsen had defamed him by accusing him of lying when giving evidence to a committee of the Parliament of the Commonwealth. Mr Rann had testified to the committee that Mr Olsen had leaked confidential information to the opposition. Doyle CJ (with whose reasons Mullighan J agreed at 500 [283]) and Lander J held, over the dissents of Prior J and Perry J, that the defamation proceeding would not be stayed automatically where s 16(3) of the Parliamentary Privileges Act, rather than Art 9, applied.

58    Doyle CJ (with Mullighan J) and Lander J recognised that s 16(3) is (effectively like Art 9) a privilege of Parliament reflected in a law made by it that cannot be waived by the parties or ignored by the court (at 462 [58]–[59] per Doyle CJ, 513–514 [388], [397] per Lander J).

59    Doyle CJ (at 76 SASR 485 [194]) assumed, without deciding, and Perry J (at 492 [236]) held, that s 16(3) exceeded the reach of Art 9, whereas Prior J (at 490 [224]) held that s 16(3) was only declaratory of the privilege or immunity in Art 9 while Lander J (at 501 [293]) said that it was not necessary to decide that question. Doyle CJ (at 485 [194]) said that if s 16(3) were declaratory of the operation of Art 9 then Wright 53 SASR 416 was wrongly decided but that he, along with Lander J (at 501 [293]) did not need to determine that question, while both Prior J (at 491 [225]) and Perry J (at 494 [250]–[251]) agreed with the Privy Council in Prebble [1995] 1 AC 321 that both Wright 53 SASR 416 and Murphy 5 NSWLR 18 were wrongly decided. Accordingly, four of the judges in Rann 76 SASR 450 considered (albeit two in obiter dicta) that Wright 53 SASR 416 was wrongly decided, as had the Privy Council in Prebble [1995] 1 AC 321.

60    Prior J (76 SASR at 491–492 [232]–[234]) and Perry J (at 497–499 [270]–[281]) would have stayed the proceeding on the basis that, on their differing constructions, s 16(3) would have the effect of preventing Mr Olsen from pursuing his defence of justification. Indeed, although Lander J found that the pleadings were in such an unsatisfactory state that it was not reasonable for the Court to have to decide the questions in the case stated (at 516–517 [418]–[422]), the majority agreed to an order (which reflected Lander J’s obiter view at 519 [444]) that s 16(3) precluded Mr Olsen relying on a defence of justification and that, at the then stage of the proceeding, it was not appropriate to determine whether a stay should be ordered (at 489–490 [223](i) and (iii)). However, Doyle CJ (with Mullighan J) and Lander J found that Mr Olsen would be able to pursue his defences of qualified privilege and fair comment, albeit that the trial judge might have to determine whether s 16(3) would prohibit particular questions or evidence (about which the Full Court was not able to make any decision on the state of the pleadings) (at 488–489 [217]–[222] per Doyle CJ, 518–419 [434], [440] per Lander J).

61    Doyle CJ (with Mullighan J) held that the defences of qualified privilege, at both common law and under the constitutional freedom, and fair comment were unlikely to be affected by s 16(3) (at 462–467 [60]–[86], 482–483 [180]). Lander J came to a similar conclusion, although because of his analysis of the unsatisfactory pleadings, he considered that the Court could not speculate on the admissibility of evidence that might be led at the trial and what might be the effect of s 16(3) on any tender (at 514–519 [400]–[440] and see too per Doyle CJ at 466 [82]).

62    Importantly, Doyle CJ (with Mullighan J) and Lander J recognised that the admissibility of evidence on the pleas of qualified privilege, fair comment and malice would depend not on whether Mr Rann, in fact, had lied to the Parliamentary committee, but on its relevance to Mr Olsen’s state of mind about his assertion that Mr Rann had done so. Any ruling on the admissibility of evidence would depend on whether the purpose for which it was led or tendered was a purpose precluded by s 16(3).

63    Doyle CJ (with Mullighan J) dealt with the issue of fair comment by saying that it was “difficult to see how the statements made could be treated as comment” (at 452 [12]). Lander J identified defects in the way in which Mr Olsen’s defence pleaded fair comment, which made the plea difficult to understand (at 505 [325]–[526]). Perry J said that Mr Olsen’s particulars of the factual basis of the comment (which I understand to be a reference to the common law requirement that there be facts truly stated on which the comment is based) would require Mr Olsen to establish the truth of those facts and so would infringe s 16(3) (at 496 [263]–[265]).

64    With respect, Perry J’s view that s 16(3) (or Art 9) precluded the use, as a fact truly stated, of the Hansard record of Mr Rann’s evidence to the Parliamentary committee cannot be correct. Hansard is the authoritative report of absolutely privileged proceedings in Parliament and could have been tendered on the basis of what Cockburn CJ had said in the passage in Wason LR 4 QB at 96 set out in [27] above: Pervan 178 CLR at 319.

65    In Pervan 178 CLR at 322–324, Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ discussed the differing views in Bailey v Truth & Sportsman Ltd (1938) 60 CLR 700 of Starke J (who was in the majority with Latham CJ and McTiernan J) and Dixon J. Their Honours said that, in Bailey 60 CLR 700, McTiernan J had agreed with Dixon J (178 CLR at 322), but that appears to have been a mistake. Dixon J dissented and doubted what Phillimore J had held in Mangena [1909] 2 KB 958 (60 CLR at 723–724). McTiernan J had applied Mangena [1909] 2 KB 958 on the basis that, even if allegations in a privileged report (there, of a Royal Commission) were not true, they were facts on which a person could make out a defence of fair comment at common law (60 CLR at 730). Starke J, in contrast to Dixon J, inclined to the same view as McTiernan J but did not need to decide it (see 60 CLR at 717–719). In Pervan 178 CLR at 324, the majority simply observed that “the views expressed in Bailey are by no means entirely consistent with the existence of an absolute common law rule that fair comment must always be based on facts which are true”.

66    The majority found that, in drafting the earlier analogue of s 377(8) of the Criminal Code (Qld), Sir Samuel Griffiths intended to treat what the Court of Queen’s Bench said in Wason LR 4 QB at 96 as a correct statement of law (178 CLR at 319). They concluded (178 CLR at 328):

The considerations to which Dixon J. adverted in Bailey v. Truth & Sportsman Ltd. (60 CLR at 721-724) suggest that, as a matter of policy, the protection given by s. 377(8) may not sufficiently safeguard the interests of an individual who is incidentally disparaged in the course of public discussion of a matter of public interest which falls within the sub-section. However, that insufficiency, assuming it to be so, is not enough in itself to warrant a departure from an interpretation which is so strongly supported by legislative history and authority. Moreover, it is an interpretation which rests on the paramount importance of encouraging and protecting freedom of expression and discussion, especially in relation to matters of public interest. In the context of the common law defence of fair comment, Lord Denning M.R. described it as “one of the essential elements which go to make up our freedom of speech” (Slim v. Daily Telegraph Ltd., [1968] 2 QB 157 at 170).

When the paramount policy interest manifest on the face of s. 377(8) is the encouragement and protection of freedom of discussion on a matter of public interest for the benefit of the public, it would be inappropriate to construe that sub-section as requiring that a person wishing to participate in the discussion of such a matter by way of comment on facts stated on a privileged occasion, when that discussion is for the public benefit, should first satisfy himself or herself of the truth of those facts before commenting upon them.

(emphasis added)

67    I am of opinion that this also represents the common law. In any event, here, s 31(5)(b) of the Defamation Act provides that proper material includes material published on an occasion of absolute privilege, such as in proceedings in Parliament.

How does Parliamentary privilege apply to Mr Shanks’ defence?

68    Here, the question is whether and how Art 9, as a law of the State of New South Wales, may apply to Mr Shanks’ proposed defences. In Mundey v Askin [1982] 2 NSWLR 369 at 373, Moffitt P, Reynolds and Samuels JJA identified the following principle for the operation of Parliamentary privilege based on what Browne J had discussed in Church of Scientology of California v Johnson-Smith [1972] 1 QB 522, namely, that what is:

… said or done in Parliament in the course of proceedings there could not be examined outside Parliament for the purpose of supporting a cause of action, even though the cause of action itself arose out of something done outside Parliament. The reason for its exclusion is, no doubt, to prevent any inquiry into the motives or intentions of Members of Parliament in anything they said or did in the House.

(emphasis added)

69    The emphasised sentence in the passage just cited captures the essence of the subject matter of s 16(3) of the Parliamentary Privileges Act as expository of the reach of Art 9. In R v Jackson (1987) 8 NSWLR 116 at 120, Carruthers J rejected the attempt of the Crown Prosecutor to tender Hansard to prove that the accused (a former Minister) had told lies to the Legislative Assembly of New South Wales. His Honour refused to follow the course that Hunt J had taken in Murphy 5 NSWLR 18 because it “would necessarily have involved an impeaching or questioning in this Court of debates or proceedings in Parliament” (see 8 NSWLR at 120–121). I agree with the reasons of Carruthers J and the Judicial Committee in Prebble [1995] 1 AC at 333A–334C, 337A–B (see [56] above) that Hunt J’s construction of Art 9 was wrong.

Mr Shanks’ defence of justification to imputation 9(b)

70    Here, Mr Shanks’ proposed defence of justification of imputation 9(b) necessarily will involve impeaching or questioning in this Court what Mr Barilaro said in the proceedings in the committee. That is because that defence accuses him of committing perjury in those proceedings. The defence of justification to that imputation cannot be pleaded because it infringes Art 9. Had the defence been filed, I would have been bound to strike it out: Ex parte Wason LR 4 QB at 577 (see [29] above); Mundey [1982] 2 NSWLR at 373; Prebble [1995] 1 AC at 337F–G; Jackson 8 NSWLR at 120–121.

71    I reject Mr Barilaro’s argument that there is no need to strike out such a defence and that it can be filed and remain on the record of the Court. The pleadings in a proceeding form part of the record of a superior court of record, such as this Court (s 5(2) of the Federal Court of Australia Act). Moreover, once filed, a pleading in this Court is published under the absolute privilege that attaches to judicial proceedings and, ordinarily, any person who is not a party can inspect a filed pleading under r 2.32(2)(c). The nature of the absolute privilege that Art 9 and s 16(3) establish operates in an analogous way to the absolute privilege of those who make statements in the course of judicial proceedings, such as the members of a court, counsel, solicitors and witnesses: Mann v O’Neill (1997) 191 CLR 204 at 211 per Brennan CJ, Dawson, Toohey and Gaudron JJ, 238–239 per Gummow J and 257–258 per Kirby J. There, Brennan CJ, Dawson, Toohey and Gaudron JJ said (at 213):

… absolute privilege attaches to statements made in the course of parliamentary and judicial proceedings for reasons of necessity. Thus, it has been said that absolute parliamentary privilege arises from “inherent necessity” (See, eg, Gipps v McElhone (1881) 2 NSWR 18 at 21-22, per Martin CJ; at 25-26, per Windeyer J; but cf at 24, per Manning J; Chenard & Co v Joachim Arissol [1949] AC 127 at 133-134; Australian Broadcasting Corporation v Charrerron (1986) 46 SASR 1 at 18, per Zelling A-CJ). And absolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process (See Gibbons v Duffell (1932) 47 CLR 520 at 528, per Gavan Duffy CJ, Rich and Dixon JJ).

(emphasis added)

72    The use of the plea in the defence that Mr Barilaro had perjured himself in the committee necessarily would be an impeachment or questioning of those proceedings in Parliament in this Court and directly contrary to the injunction to prevent that occurring provided in Art 9.

Mr Shanks’ defence of honest opinion to imputation 9(c)

73    Mr Shanks argued that the proposed defence of honest opinion in relation to imputation 9(c) equally relied on him being able to establish as a fact that Mr Barilaro committed perjury nine times in the proceedings before the committee as the foundation of his opinion, that he should be gaoled for that conduct. Mr Shanks did not seek to defend imputation 9(c) as a whole as being an expression of his opinion. No doubt this was because of the way in which the bruz video presented the statements and accompanying footage in pars 72–78.

74    Accordingly, the defence of honest opinion in relation to imputation 9(c) also necessarily would involve impeaching or questioning proceedings in the Parliamentary committee, contrary to Art 9 and therefore cannot be allowed to be pleaded.

Stay of proceedings

75    The question then arises as to whether Mr Shanks is entitled to a stay of proceedings in relation to imputations 9(b) and 9(c).

Principles for granting a stay of proceedings to prevent an abuse of process

76    In Victoria International Container Terminal Ltd v Lunt (2021) 388 ALR 376 at 381–382 [18]–[22], Kiefel CJ, Gageler, Keane and Gordon JJ (with whom Edelman J agreed at 385 [36]) discussed the principles upon which the power to order a stay of proceedings ought be exercised. Essentially, the power exists so as to ensure the court is able to control the use of its own processes in order to protect the administration of justice. And, because it is a power to prevent the hearing and determination on the merits of a matter submitted to the court for its adjudication, ordinarily, a permanent stay will be granted only if there is no less draconian way of doing justice between the parties. Kiefel CJ, Gageler, Keane and Gordon JJ (at 382 [21]) applied what Edelman J had said in Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325 at 415 [264], namely, that because the court’s powers to protect the integrity of its processes are not confined to an order that a proceeding be stayed, the availability and appropriateness of other means to prevent the perceived abuse or injustice must be considered. However, where a person commences or conducts a proceeding for an improper purpose, that enlivens the court’s power to protect the administration of justice and its processes from abuse.

77    The categories of abuse of process are not closed, as Gleeson CJ, Gummow, Hayne and Crennan JJ held in Batistatos v Road and Traffic Authority of New South Wales (2006) 226 CLR 256 at 265 [9]. That is because the court (or at least a superior court of record that has inherent jurisdiction) must be able to adapt its processes and powers to meet any manifestation of conduct that interferes, or has the tendency of interfering, in the due administration of justice. Thus, in Walton 177 CLR at 392–393, Mason CJ, Deane and Dawson JJ held that the power of a superior court to stay a proceeding as an abuse of process extends to all categories of cases “in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness”.

78    In Lunt 388 ALR at 381 [18]–[19], Kiefel CJ, Gageler, Keane and Gordon JJ said:

… The power to stay, or summarily dismiss, proceedings because one party has abused the processes of the court is concerned to prevent injustice, [Barton v The Queen (1980) 147 CLR 75 at 96. See also Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301-1302, 1347; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [25]; UBS AG v Tyne (2018) 265 CLR 77 at [1]] and that power is properly exercised where the conduct of the moving party is such that the abuse of process on its part may prevent or stultify the fair and just determination of a matter.

In Strickland (a pseudonym) v Director of Public Prosecutions (Cth) [(2018) 266 CLR 325 at [113]], Gageler J explained that the concern which engages a court’s power to order a stay of proceedings is the need to protect the integrity of its own processes. His Honour said:

“The power of a superior court to stay its own proceedings as an abuse of process is a power to protect the integrity of its own processes. The power is in that limited respect and to that limited extent a power to ‘safeguard the administration of justice’. [Moti v The Queen (2011) 245 CLR 456 at [11]]”

(emphasis added)

Must the Court stay or strike out a claim because Parliamentary privilege prevents a defence to it?

79    The characteristic of unfairness will not necessarily be present in a party’s use of a defamation proceeding where Art 9 or s 16(3) foreclose a defence of justification, as Prebble [1995] 1 AC 321 and Rann 76 SASR 450 establish, even where the plaintiff instigates an attack under Parliamentary privilege on the publisher. The availability of other defences, as in both those cases, meant that it was in the interests of justice that the proceeding still be heard and determined without requiring a stay, even though the publisher could not rely on a defence of justification.

80    The application of Art 9 (or s 16(3)) to the facts of any particular case is a legislative restriction on the availability of particular evidence and arguments. Such restrictions are inherent in any society regulated by the separation of powers between the three arms of government. Indeed, Art 9 is a fundamental aspect of the democratic process because it ensures that the processes and debates of Parliament remain in the control of the community’s elected representatives. The purpose of the law recognising absolute privilege in proceedings in Parliament and in the courts of law arises from “inherent necessity”: Mann 191 CLR at 213. It ensures that each of those arms of government can operate free of collateral interference, yet each arm can and does control its own processes and proceedings having regard to the public interest for which those privileges exist: cf Prebble [1995] 1 AC at 336F–H.

81    Rules of evidence and legislation restrict or control what evidence will be admissible in judicial proceedings. A court is not free to impose its own value judgment about the fairness of legislative restrictions on, or extensions of, admissible evidence, but must apply the law. The duty of the courts is to apply the law, as made by Parliament, to the hearing and determination of litigation before it. Article 9, in its usual and ordinary application, is like any other law, legal principle or rule, such as legal professional or client legal privilege, public interest or matter of state immunity, the privileges against self-incrimination and self-exposure to a penalty or the inadmissibility of irrelevant evidence (see ss 56(2), 117–118 and 130 of the Evidence Act 1995 (Cth)), that restricts the admissibility or use of evidence: cf. SDCV v Director-General of Security (2021) 389 ALR 372. However, as their Lordships recognised in Prebble [1995] 1 AC at 338D–F, the pursuit by a plaintiff of a proceeding in which Art 9 will preclude the opponent from defending it may be, or become, oppressive or vexatious and that a stay may be appropriate in the “most extreme circumstances”. That may be so because the operation of Art 9 will be, or become, unduly burdensome on the opponent or will make the hearing so unfair to the opponent that it will not be just to allow it to proceed.

Waiver of Parliamentary privilege

82    I reject Mr Shanks’ argument that Mr Barilaro has an onus to seek that the New South Wales Parliament pass legislation waiving its privilege under Art 9. First, the privilege is that of Parliament, not Mr Barilaro: Prebble [1995] 1 AC at 335F–G. There is no reason why Mr Shanks, who wants to raise a defence that will question or impeach the proceeding before the committee, should not put his case to Parliament to see whether its members consider it appropriate, if it is within their power, to waive privilege so that he can act in a way that would otherwise infringe Art 9. Secondly, Mr Shanks chose the way in which he published in the bruz video his admittedly defamatory imputations 9(b) and 9(c) of and concerning Mr Barilaro in respect of proceedings in Parliament. Mr Barilaro did nothing to contribute to Mr Shanks’ choice of what he published or how he expressed himself.

83    It may be that legislation would be necessary for the waiver of Art 9, although neither Mr Shanks nor Mr Barilaro appears to have informed the Presiding Officers of each House, or developed researched submissions about the issue. In Arena v Nader (1997) 42 NSWLR 427 at 428F–G, Priestley, Handley and Meagher JJA noted that after a member of the State Parliament had made a speech in the Legislative Council raising serious allegations for which Parliamentary privilege protected her, Parliament passed an Act that made changes to Parliamentary privilege that allowed a House to waive it in connection with inquiries of a particular kind. It is not clear whether Parliament enacted that special Act to ensure that there could be an effective inquiry into the member’s allegations, as opposed to an indication of any limitation of its own powers to waive or approve any relaxation of Parliamentary privilege. Without hearing from the Presiding Officers or the Attorney-General, or having researched submissions from the parties, it would not be appropriate for this Court to express any view about any limitations on the powers of Parliament.

Is Mr Shanks entitled to a stay?

84    The next question is whether the preclusive effect of Art 9 on Mr Shanks’ ability to defend imputations 9(b) and 9(c) would create an unfairness to the degree that Mr Barilaro’s right to pursue those elements of his claim should be stayed. In Prebble [1995] 1 AC at 338D–F (in the passage set out at [53] above), the Privy Council envisaged that a case might arise where the effect of Parliamentary privilege would exclude virtually all of a publisher defendant’s evidence to justify the libel, so that a stay would be warranted to prevent injustice.

85    Unfairness, like fairness, is not an abstract concept.  It must be evaluated in light of all of the circumstances.  As Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37], in the context of judicial review of executive decision making, fairness: “is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.” There is no precedent that I was taken to in which any court has ordered a stay of or in a proceeding for defamation because of the impact that Parliamentary privilege might have on the ability of one or more parties to pursue or defend the whole or part of the proceeding.

86    The Macquarie Dictionary online defines the Australian colloquialism, ‘cowards castle’, as “parliament viewed as an arena in which statements that are possibly libellous can be made under protection of parliamentary privilege and therefore without fear of legal redress”. Major Adam, Mr Rann, Mr Olsen, Mr Lewis, Mr Wright and Television New Zealand can be assumed to have been well aware of Parliamentary privilege when each of them made statements in Parliament or published outside it. The scenario in which Mr Shanks finds himself is unlike that in Adam [1917] AC 309, Wright 53 SASR 416 or Rann 76 SASR 450. In each of those three cases, the plaintiff politician had attacked the publisher or another person under Parliamentary privilege, and sued the defendant when he or it sought to refute that attack. Yet, even, so, in Rann 76 SASR 450, the majority, while holding that the defence of justification would infringe s 16(3) and could not be pleaded, did not stay the proceeding.

87    Mr Shanks and those assisting him prepared and chose the subjects of and statements in the bruz video. That publication appears to have been scripted and produced with considerable technical skills and support. Moreover, Mr Shanks’ solicitor, Mark Davis, deposed, in explaining why his defence had not been filed in accordance with the Rules, that Kristo Langker is a producer and writer for Mr Shanks’ YouTube account called ‘friendlyjordies’. He said Mr Langker had been responsible for much of the research that led to the preparation of both matters complained of and that those had “voluminous” underlying material.

88    On the evidence, including as a viewing of its content reveals, the bruz video was not a spontaneous or unprepared publication. Mr Shanks and those assisting him chose what he would say and do in presenting the bruz video. No doubt, they had the opportunity to take legal advice, if they were so minded, as to what the consequences of publishing imputations 9(b) and 9(c) might be; indeed, Mr Shanks admits they were conveyed. He ensured that he conveyed those meanings by his own words in pars 74, 77 and 78 of the bruz video, namely his assertion that Mr Barilaro told the New South Wales Parliament, under oath, that he had not given money to Australia’s Oyster Coast because his friend ran it and that by doing so “he perjured himself, nine times over. You usually go to jail for committing perjury once”. Relevantly, Mr Shanks does not claim that this part of the bruz video came to be published because of any attack in or out of Parliament that Mr Barilaro made on him.

89    As I have explained, the common law, the constitutional freedom and the Defamation Act allow members of the public, such as Mr Shanks, the freedom to disseminate information, opinions and arguments concerning government and political matter (Lange 189 CLR at 571), publish false statements under qualified privilege and express honest opinion on proper material or comment on facts truly stated in respect of what is said in Parliament, none of which will infringe Art 9 (or s 16(3)). That is so even though Art 9 does not allow a defence of justification to be pleaded or advanced, the effect of which would be, as Mr Shanks’ proposed defences to imputations 9(b) and 9(c) assert, to impeach or question what was said in Parliament by conveying that Mr Barilaro committed perjury nine times in what he told the committee.

90    Here, Mr Shanks chose to convey imputations 9(b) and 9(c) in an apparently prepared, researched and considered attack on Mr Barilaro. I infer from the form of the defence that he did not choose or use language that would have allowed him to defend those imputations, as a differently expressed publication might, under the constitutional freedom, common law or statutory qualified privilege or as honest opinion (or fair comment) on a matter of public interest. In those circumstances, it is difficult to see why it is unfair that Art 9 prevents him from proving the substantial truth of his choice of what he said and how he said it.

91    Rather, the unfairness lies in what Mr Shanks seeks, namely to deprive Mr Barilaro of the right to vindicate his reputation that Mr Shanks attacked. It is Mr Shanks’ conduct, unprovoked by Mr Barilaro, in doing what Art 9 prohibits from being justiciable, namely in the bruz video impeaching or questioning proceedings in Parliament, that created his own difficulty in pleading the substantial truth of what he said. That has resulted in the situation in which he now finds himself.

92    Mr Barilaro’s right to pursue his admitted claim that the publication of the bruz video conveyed imputations 9(b) and 9(c) cannot be characterised as an abuse of process under r 16.21(1)(f), or otherwise, in the circumstances. Unlike Major Adam, Mr Wright or Mr Rann, Mr Barilaro did not use Parliamentary privilege to attack Mr Shanks so as to provoke or entitle him to defend himself about allegations that his attacker had made under absolute privilege in proceedings in Parliament.

93    I am of opinion that Mr Shanks’ difficulty in pleading a defence to imputations 9(b) and 9(c) flows from his own decisions as to what and how he conveyed those defamatory meanings in the bruz video.

94    If a person publishes defamatory matter about what a member or other person said or did in proceedings in Parliament that the publisher cannot defend in a defamation action without infringing Art 9, ordinarily, the publisher should be in no different or better position than anyone whose act or omission creates a liability for which the law does not afford a defence. In Prebble [1995] 1 AC at 338D–F, the Privy Council adverted to a situation of unfairness in which, having attacked the publisher under Parliamentary privilege, the plaintiff, as in Wright 53 SASR 416, effectively would be able to recover damages “where the whole subject matter of the alleged libel relates to the plaintiff’s conduct in the House” and Art 9 would exclude virtually all of the evidence to justify the libel. Of course, that is not this case because the bruz video ranged far and wide in attacking Mr Barilaro’s reputation, as shown in the ten other imputations that both Mr Barilaro and Mr Shanks have pleaded.

95    The critical factor to be borne in mind is that Art 9 creates a privilege of Parliament. The privilege is not that of a member or other person who participates in proceedings in Parliament. The law cannot be that a publisher will be free to publish defamatory matter about what a member or other person who participates in proceedings in Parliament said or did because Art 9 precludes a defence of justification, and the application of that statutory prohibition creates an “unfairness” to the extent that the court will strike out or grant a stay of any defamation proceeding or part of it that the person whom the publisher attacked commences. Such a consequence would turn Art 9 on its head and, instead, create a privilege for the publisher to defame the member or other person who would lose any right to redress in accordance with law just because of what he or she said or did in exercise of the absolute privilege in proceedings in Parliament. It would be an affront to justice if a publisher could choose to question or impeach proceedings in Parliament and, by doing so, create an effective immunity from suit by the member or person attacked. Such a result would convert Art 9 into an instrument of oppression. It would allow the publisher to be free to defame the member or other person with impunity on the basis that any defence of the publisher’s attack would infringe the prohibition in Art 9. That would leave the person defamed without a remedy that every other individual is entitled to seek from the court, however well founded or baseless the attack.

96    The common law, statute and the constitutional freedom have effective mechanisms, other than a defence of justification, for the public scrutiny of words spoken and conduct engaged in during proceedings in Parliament. It would only be where all of the circumstances in which an actual or allegedly defamatory publication occurs left a publisher with no other bona fide defence than justification and, additionally, there was some factor in the conduct of the plaintiff, such as him or her having used Parliamentary privilege to attack the publisher or another, that made his or her use of defamation proceedings calculated to produce injustice or otherwise amount to an abuse of process because of the application of Art 9 or s 16(3), that would warrant a court considering whether it was in the interests of justice to grant a stay of the proceeding or an aspect of it.

The strike out application – conclusion

97    I am not satisfied that Mr Barilaro’s use of his lawful right to sue Mr Shanks for publishing imputations that he committed perjury nine times and, in addition, should be gaoled for doing so that, on the material before me, could render Mr Barilaro’s pursuit of a remedy in respect of those imputations an abuse of the process of the Court.

98    Accordingly, I refuse to stay the proceeding in relation to, or strike out, imputations 9(b) and 9(c) or allow Mr Shanks to file the defence in its current form pleading justification and honest opinion as defences to those imputations. That is because those proposed defences are not justiciable by force of Art 9.

The pleading issues

99    Mr Barilaro argued that none of the particulars pleaded in support of the justification of imputation 9(a) could establish its substantial truth, namely that he was a corrupt conman. He contended that the way in which the defence particularised the proper material for the defences of honest opinion in respect of imputations 9(a), 9(d), 9(e), 15(a) and 15(b) was confusing and did not identify what particulars established the truth of any proper material (the particularisation issues).

100    Mr Barilaro submitted that contextual imputations 21(a), 21(b), 21(c), 21(e) and 21(f) failed to articulate an act or condition that was defamatory of him. He argued that those imputations were in form too imprecise and argumentative and they did not make clear the effective sting that Mr Shanks needed to propound for them to be in a form appropriate to go to trial. Mr Barilaro contended that even if Mr Shanks made out his defences to the remaining imputations and established the substantial truth of his contextual imputations, none of them alone, together or in any combination could possibly meet the test in s 26(b) of the Act, because of the supervening gravity of the imputations of serious perjury meriting imprisonment (the contextual imputations issue).

101    Mr Barilaro submitted that absent a defence to imputations 9(b) and 9(c), his cause of action is complete in respect of the bruz video because Mr Shanks admits that those imputations were conveyed and are defamatory. Mr Barilaro argued that the balance of the pleaded defences were, in fact, not free standing defences, but were matters going to mitigation of damages and must be pleaded as such (the substantive defence issue).

102    Mr Shanks contended that none of Mr Barilaro’s complaints had merit. He submitted that the particulars were sufficient. He argued that imputations 21(a), 21(b), 21(c), 21(e) and 21(f) did plead an act or condition and in his written submissions in reply stated:

Contextual truth. The contextual imputations are not deficient as alleged at AS[32]. The contextual imputations allege the following defamatory acts or conditions against Mr Barilaro, namely: [21(a)] that he made an unwarranted attribution of blame; [21(b)]: that he made a dishonest, false accusation; [21(c)]: that he made a decision that would cause others to think less of him; [21(d)]: that he is a hypocrite; [21(e)]: that he decided to adopt a course of action despite knowing the damage it would cause; [21(f)]: that he failed to disclose a relevant political donation when championing legislation; and [21(g)] that he breached his disclosure obligations as a Member of Parliament.

(bold emphasis in original)

103    Mr Shanks contended that imputation 21(a) related to imputation 9(a) and could be seen as more serious, and that it and imputations 21(b), 21(c), 21(e) and 21(f) were properly pleaded. He did not otherwise explain why.

104    Mr Shanks submitted that there is no requirement in s 31 of the Act that proper material be specified or referred to in the matter complained of or be notorious or generally known. He argued that it was sufficient if the proper material was notorious and that the ordinary reasonable viewer would understand that the publication complained of was conveying an opinion. He asserted that, in any event, the defence sufficiently particularised the proper material on which he relied.

105    Mr Shanks contended that it would not be appropriate to strike out or refuse to allow him to rely on the contextual imputations since their potency and effect could only be assessed in light of the evidence at the end of the trial.

106    Mr Barilaro also argued that Mr Shanks should have pleaded all of the facts to support his justification defence in respect of imputation 9(b) and the proper material for imputation 9(c). He did not seek that Mr Shanks’ defences to those two imputations be struck out. However, for the reasons I have given above, based on the prohibition in Art 9, the defences to imputations 9(b) and 9(c) cannot be pleaded. Mr Barilaro also sought that par 19 of the defence be struck out, since the matters to which it relates cannot be pleaded. Neither par 19 of the defence nor Mr Barilaro’s complaints about the particulars for imputations 9(b) and 9(c) are now relevant because of my finding on the application of Art 9 and it is not necessary to lengthen these reasons by discussing those questions.

The particularisation issues

The particulars of justification for imputation 9(a) and the contextual imputations

107    The particulars of justification for imputation 9(a) (Mr Barilaro is a corrupt conman) (excluding those that overlap with the perjury imputations) allege:

    the use of the $47 million arts grants program referred to in pars 89–95 of the bruz video to benefit disproportionately Liberal and National Party electorates, including Mr Barilaro’s seat of Monaro, in preference to Labor Party electorates, and what Mr Shanks asserted was Mr Barilaro’s public defence of the expenditure, being: “Well my name is John Barilaro, call me Pork-Barilaro, and I have no apology because at the end of the day I will stand up and fight for our community” (the arts grants particulars) (A9–14),

    Mr Barilaro’s award of funds to the Monaro Panthers Football Club set out as follows (the Football club particulars) (A15–17):

In 2013, the Applicant awarded a $78,000 government grant to the Monaro Panthers Football Club under the Community Building Partnerships scheme.

The Applicant was a former president of the Monaro Panthers Football Club. Its then head-coach, Njegosh Popovic, had been a co-director, with the Applicant, in Euro Partners.

The Applicant did not disclose any conflict of interest in respect of the grant.

    Mr Barilaro’s 2014 purchase with his wife of the property at Oallen, New South Wales, at which much of the bruz video appears to have been filmed, which they have made available for short term rental through online platforms including Stayz and Airbnb and from which he allegedly derived substantial income. The particulars allege that Mr Barilaro supported a petition that the New South Wales Government upgrade Nerriga Road, which runs between Braidwood and Nerriga, and is the main access road leading to the Oallen property. The Government approved the upgrade, which was completed at a cost of $39 million, that allegedly has “significantly improved the amenity” of the property to Mr Barilaro’s benefit (the road upgrade particulars) (A18–24),

108    The particulars also stated that, in support of the substantial truth of imputation 9(a), Mr Shanks would rely on the substantial truth of each of the contextual imputations and the proper material relied on for the honest opinion defences of imputations 9(d), 15(a) and 15(b).

109    The particulars of justification for contextual imputations 21(a), 21(b) and 21(c) allege that:

    in late 2019 and early 2020, bushfires devastated New South Wales,

    the severity of the fires would have been mitigated had there been more hazard reduction burns in the lead up period to the summer of 2019,

    Mr Barilaro had supported all budget cuts for the National Parks and Wildlife Service (NPWS) amounting to $100 million since the Coalition became the Government parties in 2011, and the cuts represented over a quarter of its total funding,

    the cuts in funding caused a great reduction in the number of NPWS rangers and fire management officers,

    NPWS staff had warned that they did not have the funds or staff, and had lost expertise, in “managing incidents”,

    Mr Barilaro’s electorate of Monaro suffered substantial damage from the fires,

    Mr Barilaro must have known that the cuts gravely impacted on NPWS’ ability to conduct hazard reduction burning that would have mitigated the damage that the fires caused,

    in mid to late January 2020, Mr Barilaro publicly accused NPWS of not carrying out such burns on ideological grounds,

    Mr Barilaro left for holidays in London in late 2019 and, while the fires were raging, decided not to return to assist in managing the response despite the fact that the Premier had stated that she expected Ministers to remain in Sydney and another Minister had cut short his European holiday to return home, as had the Prime Minister in returning from a holiday in Hawaii (the bushfire particulars).

110    The particulars of justification for contextual imputation 21(d) allege that:

    Mr Barilaro had stated at some time in the past that the Murray-Darling Basin Plan, that is intended to facilitate the fair and sustainable distribution of water in the Basin, had failed,

    in January 2019, Mr Barilaro publicly supported a Royal Commission into the Plan, but, despite this, voted in Parliament on about 7 August 2019 against a motion calling for such a Commission,

    on 8 August 2019, the member for Murray, Helen Dalton MP, said that Mr Barilaro’s inconsistent positions on the Commission beggared belief, and on 4 May 2020 Ms Dalton posted a tweet drawing attention to her view of Mr Barilaro’s inconsistent positions, in response to which he posted a tweet (referred to in pars 49 and 52 of the bruz video): ‘Helen, you are disgusting human [sic]. All politics. Today was a decision for my family’ (the Royal Commission particulars).

111    The particulars of justification for contextual imputations 21(e) and 21(f) allege that:

    wild horses in Kosciuszko National Park have caused severe degradation to tens of thousands of hectares in the Park and threaten the habitat of 27 native species to the point that they are at risk of extinction,

    NPWS and other experts had advocated a cull of the wild horses,

    in March 2011, Mr Barilaro received a donation of $5,000 from each of Peter Cochran, a former member for Monaro, and Cochran Horse Treks, which Mr Cochran operated as a horse trekking business in the Snowy Mountains,

    Cochran Horse Treks markets that its customers will see horses in the wild and a cull would jeopardise the possibility of that occurring,

    the two donations were not disclosed in declarations that Mr Barilaro lodged or caused to be lodged as required by the Election Funding, Expenditure and Disclosures Act 1981 (NSW),

    on 23 May 2018, Mr Barilaro introduced the Kosciuszko Wild Horses Heritage Bill 2018 in the Legislative Assembly. The Bill had the object of recognising the heritage value of sustainable wild horse populations in the Park and the protection of that heritage,

    in moving the second reading of the Bill on that day, Mr Barilaro acknowledged the presence of Mr Cochran in the public gallery and the role he had played in seeking to protect wild horses in the Park, comparing him to a modern day Man from Snowy River,

    Mr Barilaro had carriage of the Bill in that Chamber and voted in favour of it,

    Mr Cochrane boasted in late May 2018 that he had prepared the initial draft of the Bill,

    during the passage of the Bill through the Legislative Assembly, Mr Barilaro made no attempt to draw attention to the two 2011 donations that he had received (the wild horse particulars).

112    The particulars of justification for contextual imputation 21(g) allege that:

    on about 17 October 2014, Mr Barilaro was appointed Minister for Regional Tourism,

    Mr Barilaro, in breach of the Constitution (Disclosure by Members) Regulation 1983 (NSW) and New South Wales Ministerial Code of Conduct, did not disclose until 23 November 2016 that the Oallen property was a source of income (the rental particulars).

The particulars of proper material for the bruz video

113    The defence gives the following particulars of proper material for the defence of honest opinion expressed in imputations 9(a) (Mr Barilaro is a corrupt conman), 9(d) (Mr Barilaro corruptly gave $3.3 million to a beef company) and 9(e) (Mr Barilaro corruptly voted against a Royal Commission into water theft) (leaving aside the perjury particulars):

(a)    imputation 9(a): being the arts grants particulars, the Football club particulars, the road upgrade particulars, the bushfire particulars, the Royal Commission particulars, the wild horse particulars and the rental particulars, as well as the particulars of proper material for imputation 9(d) below,

(b)    imputation 9(d): being set out in A61–65, which allege facts that appear to be proper material and relate to pars 79–83 of the bruz video. However, A66 stated:

In about February 2018, the Applicant approved that grant, without knowing or making any or any adequate inquiries with respect to the matters referred to in paragraphs 62 and 63 above [namely, ROC Partners’ acquisition of a majority shareholding in Stone Axe Pastoral and the appointment to its board of each of ROC’s investment director and managing partner], and without making any or any adequate inquiries as to whether proper governance standards had been adhered to with respect to the proposed grant.

(bold emphasis and italicised statement added)

(c)    imputation 9(e): being the Royal Commission particulars.

Can the particulars support the substantial truth of imputation 9(a)?

114    I reject Mr Barilaro’s argument that none of the particulars have the capacity, if proved, individually or in combination, to support a finding of the substantial truth of imputation 9(a).

115    The ordinary reasonable viewer of the bruz video could understand what Mr Shanks says at pars 16–19 as an introduction to the “new material” (in par 19) that will make good his assertion (in par 16) that Mr Barilaro “is a conman to the core”. The expression “conman” can be understood as a confidence trickster. The improper use of Ministerial power to benefit a political party or donor (such as suggested in the arts grant or wild horse particulars) is capable of being understood by the ordinary reasonable viewer as “corrupt”.

116    Immediately following Mr Shanks’ statement at par 16 of the bruz video, “He’s a conman to the core”, he discussed the 2019–2020 bushfires. The bushfire particulars allege that Mr Barilaro caused NPWS not to be in a position to conduct hazard reduction burns and then blamed NPWS for not conducting such burns; in other words, Mr Barilaro was seeking to blame, deceptively or by “conning” the public, NPWS for the bushfires when, in fact, his own conduct was responsible for NPWS’ lack of action.

117    The bushfires particulars given in support of the truth of contextual imputations 21(a), 21(b) and 21(c) appear to correspond roughly to statements in pars 19–37 of the bruz video dealing with funding for NPWS, hazard reduction burns, Mr Barilaro’s being in London and his alleged statements relating to this general topic. Some of those particulars, however, such as A32, are so general as to be meaningless. That states:

Prior to the Bushfires, NPWS employees had warned publicly that because of the cuts, they did not have the funds or staff to carry out their duties and had lost expertise in managing incidents.

118    In contrast, par 25 of the bruz video stated of NPWS: “They’d been begging, specifically fat lips here [scil: Mr Barilaro], for the funds so that they could do hazard reduction burns”. Here, nothing in A32 is specific or supports the apparent statement of fact in par 25 of the bruz video that NPWS had been “begging, specifically… for the funds so that they could do the hazard reduction burns” (emphasis added). Rather, A32 asserts that at an unspecified time prior to the 2019–20 bushfires, unspecified NPWS employees had made unspecified public warnings about not having funds or staff to carry out their duties. That vague collocation of generalised assertions does not give any particulars of when, how and what was said. In particular, A32 does not allege what par 25 of the bruz video appears to assert as a fact, namely that NPWS, not unnamed employees, had made a specific request for money to carry out hazard reduction burns.

119    Thus, the bushfires particulars are inadequate to identify how Mr Shanks seeks to establish the substantial truth of what he published or of that act or allegation being proper material. As I note below, there are some other problems with the particulars of proper material that apply equally to those particulars in respect of Mr Shanks’ reliance on them to support his plea of justification (all of which are relied on to support the substantial truth of imputation 9(a)).

The principles applicable to particulars of proper material

120    In Cunningham-Howie v F.W. Dimbleby & Sons, Ltd [1951] 1 KB 360 at 363–364, Denning LJ, giving the reasons of Somerville, Cohen LJJ and himself, said that on a plea of fair comment it “is for the defendant to allege that the facts on which he comments are true” and that the plaintiff was entitled to particulars of those facts.

121    In Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 252–253 [4], Gleeson CJ said that the defence of fair comment (which in the context of s 31 is relevantly similar to honest opinion) “is concerned with comment based on facts. The truth of those facts will affect the viability of the defence”. There must be a sufficient linkage between the alleged comment and the factual (or proper) material that can be identified in one of three ways, namely, that factual material, first, can be expressly stated in the matter complained of by setting it out, secondly, while not set out in it, can be identified in the matter complained of by a clear reference, or, thirdly, can be notorious (232 CLR at 270–271 [47], 272 [49] per Gummow, Hayne and Heydon JJ citing Pervan 178 CLR at 327).

122    The defence of honest opinion will be established if the facts are “sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to judge for themselves how far the opinion expressed in the comment is well founded” (emphasis added): Pervan 178 CLR at 327; Manock 232 CLR at 253 [5], 270–272 [47]–[48]. The tribunal of fact at trial must determine whether a defamatory statement in the matter complained of (being the imputation) is a comment or an allegation of fact: Pervan 178 CLR at 317–318. There, Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ approved the quotation from Odgers on Libel and Slander (6th ed, Stevens & Sons Ltd, 1929) at p 166 that Lord Porter set out in his speech (with which Lords Goddard CJ, Oaksey, Radcliffe and Tucker agreed) in Kemsley v Foot [1952] AC 345 at 356–357. That quotation referred to the often complex issue of ascertaining what parts of a publication are statements of fact or opinion. It said that where the facts are not set out, the audience must be able to perceive that the publisher has inferred what he, she or it wishes to defend as comment (or honest opinion) from one or more of the three categories of identified factual material. The same principle applies to a defence under s 31 of the Act in respect of there being perceptible proper material within the meaning of s 31(5).

123    A pleading and particulars must state with sufficient clarity and detail the case that the party seeks to establish so as to give the other party a proper opportunity of meeting it: Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486 at 502–503 [25]–[26] per French CJ, Gummow, Hayne and Kiefel JJ; r 16.41. Because of s 31(1)(c) of the Act, the opinion the subject of the defence of honest opinion must be based on proper material. That material must exist and be pleaded as a material fact that will, if proved, establish the defence: cf. Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 472 per Barwick CJ.

124    The defence operates on the premise that, in the matter complained of, the putative commentator sets out or makes reference to the facts before his, her or its audience, or otherwise identifies notorious facts, as the basis on which the commentator invites the audience to see for themselves whether they agree with the opinion.

125    This illustrates why the publisher who wants to rely on proper material has to, first, identify the specific passages in the matter complained of that are proper material, and, secondly, set out what is relied on to establish that material as substantially true (s 31(5)(a)) or was published on an occasion specified in s 31(5)(b) or (c) of the Act.

The particulars of proper material for the defence of honest opinion in respect of imputations 9(a), 9(d), 9(e) – consideration

126    The particulars given in respect of the proper material for the imputations which Mr Shanks defends as honest opinion (imputations 9(a), 9(d), 9(e)) do not, first, identify the particular parts of each matter complained of or any other fact (or basis on which it is alleged to be proper material) that is alleged to be proper material or, secondly, relate that fact to particulars that establish its substantial truth or that it was published on an occasion of absolute or qualified privilege or attracted a defence under ss 28, 29 or 31 of the Act (being the categories in the definition of proper material in s 31(5)).

127    In my opinion, the particulars given for the defences of honest opinion to imputations 9(a) and 9(d) are defective. For example, the particulars of proper material for imputation 9(a) include the Football club particulars and the road upgrade particulars, neither of which appear to be mentioned in the bruz video. They could not be facts truly stated at common law, simply because they were not stated in, or clearly referred to by, the bruz video or otherwise notorious. These matters were not in a category of notoriety such as the common knowledge of Lord Kemsley being a newspaper proprietor in England in the late 1940s: cf. Kemsley [1952] AC 345. There is no allegation that links either of those two sets of particulars into any category of proper material in s 31(5) of the Act. It is difficult to conceive that either of those apparently obscure matters would have been so notorious, in 2020 or this year, that the hundreds of thousands of persons who viewed the bruz video would have known about them. As an example, the Football club particulars dealt opaquely with an alleged conflict of interest in respect of a grant made in 2013 without identifying how the ordinary reasonable viewer in 2020 would have known about the 2013 events or why there was a conflict. Indeed, I do not understand from the matters complained of, pleadings or submissions what the conflict of interest alleged is.

128    Imputation 9(d) alleges that Mr Barilaro acted corruptly by giving Stone Age Pastoral $3.3 million. It is impossible to understand what A66 (set out in [113(b)] above) is conveying as supporting that allegation. Rule 16.43(2) requires a party who pleads that another party ought to have known something to give particulars of the facts and circumstances from which the other party ought to have acquired the knowledge. And, r 16.42 requires a party who pleads fraud to state in the pleading particulars of the facts on which the party relies: see too Forrest 247 CLR at 502–503 [24]–[25]. A66 provides no foundation for an inference that a person could hold an opinion that Mr Barilaro acted corruptly or wrongly in approving the grant. Negligence or ignorance of the kind alleged in A66 is incapable of being characterised as “corrupt”. The bruz video asserts in pars 70–81 that Mr Barilaro “says what he says whenever someone makes a plausible accusation of corruption perpetrated by him: Fuck off” (emphasis added). Yet, there is nothing in the particulars about when or how Mr Barilaro made his supposed response of “Fuck off” or words or action conveying that colloquialism. Thus, the particulars do not identify sufficient proper material on which imputation 9(d) could be capable of being understood as a comment or opinion.

129    Similar deficiencies pervade the balance of the particulars of proper material to imputations 9(a) and 9(d). It is essential that the defence identify the passages in the matters complained of that are the facts on which other passages are said to be expressions of honest opinion (or fair comment) and what is the matter of public interest to which the comment relates.

130    However, I do not think that Mr Barilaro’s complaints about the particulars of proper material for imputation 9(e) have any substance. That is because the Royal Commission particulars in A38–43 specifically identify the facts that are said to be proper material and those appear to relate to pars 42–53 of the bruz video.

The particulars of proper material for the defence of honest opinion in respect of imputations 15(a) and 15(b)

131    The Secret Dictatorship video covers an array of matters relating to the New South Wales town of Narrandera and a by-election in 2017 at which the National Party’s candidate, Steph Cooke, was elected. Imputations 15(a) and 15(b) are respectively that Mr Barilaro has acted corruptly by engaging in the blackmailing of councillors and that Mr Barilaro has acted corruptly by engaging in the blackmailing of councillors using taxpayer money. The subject matter for imputations 15(a) and 15(b) appears to be pars 198–225 of the Secret Dictatorship video transcript. There, Mr Barilaro is alleged to have supported Ms Cooke’s campaign and promised to fund a feasibility study about the possible reestablishment of a disused rail line between Narrandera and Tocumwal. The Secret Dictatorship video asserts that after the Government received the report of the study, Mr Barilaro said that it was confidential.

132    Mr Shanks tells his audience that, immediately after a local councillor, Wes Hall, had accused to Government of hiding the report, Mr Hall was “fired from his role as the rail spokesperson” by the mayor, Neville Kschenka. Mr Shanks interviews Ms Dalton MP who says that Mr Hall was “sacked from that committee because he asked a question”. He puts to Ms Dalton “you can assume that for the very fact that they’re not releasing this, that there is not a good answer. Otherwise they would release it, if it supported their argument”. He and she speculate on why this has not occurred. After that interview, Mr Shanks tells his audience that he has a letter from the mayor to Mr Hall which he then appears to begin summarising. He tells the viewers that the mayor wrote that Ms Cooke had told him of Mr Hall’s interviews and the questions he was raising. He went on (at Secret Dictatorship pars 221–225):

What’s more interesting about this is I have a letter from Neville [Kschenka] to Wes [Hall]. Oh, it says State Nationals MP Steph Cooke informed Neville of some polite interviews Wes undertook which Neville then told Wes were jeopardising Narrandera’s chances of getting grants from Deputy Premier John Barilaro and Steph Cooke. You know what’s super interesting about this letter, Callum Foote from Michael West Media put questions to Barilaro, Cooke and Kschenka and got zero responses.

Furthermore, everyone we spoke to in Narrandera thinks Neville is a bit slow, almost slow enough to let someone else write the letters for him. I’m just going to read a section of this letter out in some voice I’ve done before. See what you think.

[In voice previously attributed to John Barilaro]: I am extremely concerned at the impact your action is having on council’s relationship with the local member, the Minister and the Deputy Premier and with the government as a whole, noting that the Deputy Premier’s controls the Restart NSW Grant Programs, the “poles and wires” money and the money flowing from Snowy Hydro2.

And on an unrelated note, did you know blackmail’s illegal? I wonder how illegal it is to use taxpayer money as blackmail to shut your critics up. If this is who I think it is, and I do think that, he’s such a scab he doesn’t even use his own money to blackmail.

Is it a wonder John was so happy to shut down any chances of the Narrandera to Tocumwal rail line being built? After all, that would create jobs and economic stimulus, and from what’s been described to me, another role of the Nationals in Narrandera is to keep the town in a permanent economic depression.

(italics emphasis in original)

133    The particulars of the proper material for imputations 15(a) and 15(b) are at A68–79. The particulars allege that:

    an executive summary of the study that was released in 2019, without any claim for confidentiality, concluded that the revival of the rail line would not be justified on a cost/benefit analysis,

    the inference should be drawn that the study was a major political embarrassment to Mr Barilaro and Ms Cooke having regard to their promises during the by-election given that there was no claim for confidentiality of the executive summary, and the Government’s reason that the report itself was not released, namely, that it was commercial in confidence, was false,

    on about 27 November 2018, Mr Hall publicly criticised the Government for not releasing the report, accusing it of hiding the report and demanding to meet Mr Barilaro,

    later on 27 November 2018, Ms Cooke provided the mayor with a copy of Mr Hall’s comments,

    later again on 27 November 2018, the mayor wrote to Mr Hall telling him that he had attacked the Government, Ms Cooke had given him Mr Hall’s “unauthorised media statement” and his conduct had jeopardised the Council’s relationship with Mr Barilaro, Ms Cooke and the Government as a whole. The mayor wrote that Mr Barilaro controlled three significant programs that provided funding to the community, including the Snowy-Hydro scheme, the Council had applications to the Government for projects worth millions of dollars and that the Snowy Hydro scheme was the likely source of funding that could be allocated for the rail line.

134    The particulars conclude with A79, which asserted:

It is to be inferred from this chronology and the contents of that letter that Ms Cooke, with the knowledge and imprimatur of the Applicant, told Mr Kschenka the matters set out in subparagraphs (c) and (d) and that, unless he took immediate action against Mr Hall, the Applicant would withhold taxpayer money, or cause it to be withheld, for projects in Narrandera.

(emphasis added)

135    I am unable to follow how the chronology in A68–78 allows the drawing of the inference of fact asserted in A79 that Ms Cooke acted on 27 November 2018 with Mr Barilaro’s “knowledge and imprimatur” to pressure the mayor to take action against Mr Hall with the threat of withholding grant money. The assertion in A79 seems to be no more than speculation. There is nothing in what precedes it to warrant an inference that Mr Barilaro even knew of Mr Hall’s criticism, let alone organised with Ms Cooke to deliver the posited threat. The mayor’s letter appears to assert that Mr Hall criticised the Government while purporting to be acting on the Council’s behalf, without, in fact, having authority from the Council, and that the Council wanted to maintain good relations with the Government. As ordinary experience and common sense, and the absence of any fact alleged in the particulars, would suggest, the mayor’s reaction to Ms Cooke’s informing him of Mr Hall’s actions does not appear to have been provoked by Mr Barilaro. Rather, in the absence of a fact that rationally could suggest a basis for Mr Barilaro having any involvement in Ms Cooke’s conduct on 27 November 2018 (which, at trial, Mr Shanks would have to prove was substantially true), the particulars rise no higher than supporting the drawing of an inference that the mayor appears to have been concerned not to antagonise Mr Barilaro or the Government, which is a different motivation to his having been told what A79 asserts.

136    In my opinion, A79, even read in context with A68–78, is not a proper particular of any facts that could be proved to establish the substantial truth of what it asserts. With or without A79, there is no basis to support an inference that Mr Barilaro had anything to do with the mayor’s letter of 27 November 2018 and, accordingly, there is presently no proper material to support either opinion that Mr Shanks has pleaded as a defence to imputations 15(a) or 15(b).

137    Moreover, if A79 could be regarded as a particular of the substantial truth of proper material, it amounts to an allegation of the fact of blackmail. A matter of substantial truth, in order to be proper material, must be one which an ordinary reasonable viewer of the Secret Dictatorship video could use to judge for himself or herself whether Mr Shanks was conveying imputations 15(a) and 15(b) as his opinion about why Mr Hall was relieved of his post: Pervan 178 CLR at 327; Manock 232 CLR at 253 [5], 270–272 [47]–[48].

138    Accordingly, I do not consider that A68–79 are sufficient to amount to proper material to support the defence of honest opinion for imputations 15(a) and 15(b).

The contextual imputations issue

139    I reject Mr Shanks’ argument that imputations 21(a), 21(b), 21(c), 21(e) and 21(f) were properly pleaded. His argument did not come to grips with the discursive, argumentative imprecision of the formulation of those five imputations. For example, imputation 21(a), at best, seems to be a criticism of Mr Barilaro blaming NPWS when he “bore greater responsibility than” it. I am of opinion that imputation 21(a) is not properly pleaded and could not stand: see Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 136F–137F per Gleeson CJ; Adeang v The Australian Broadcasting Corporation [2016] FCA 1200 at [14]–[15], [20]–[22] per Rares J and the cases there cited.

140    Imputation 21(b) covers similar ground to imputation 21(a) but does not suffer all of its vices. It makes a more serious criticism, namely that Mr Barilaro falsely accused NPWS of responsibility for the bushfires. Nonetheless, each of imputations 21(b), 21(c), 21(e) and 21(f) read like a discursive commentary on, or set of criticisms of, Mr Barilaro. Each of them is bad in form for the same reasons as imputations 21(a). Indeed, as Mr Shanks’ written submissions quoted in [102] above show, each of those five imputations can be repleaded (with some further effort) to articulate an act or condition in a way that is sufficiently specific: Domican v Pan Macmillan Australia Pty Ltd [2019] FCA 1384 at [43]–[44] per Wigney J.

141    In Hutley v Cosco (2021) 387 ALR 709, Basten JA, with whom Macfarlan and White JJA agreed, considered the operation of ss 25 and 26 of the Act (which are relevantly in the same form as applies in this proceeding; ie. before the amendments made by the Defamation Amendment Act 2020 (NSW) came into effect on 1 July 2021: see at 740 [145] per Basten JA). He held that, after a trial, the first step is to determine whether the contextual imputations are conveyed and, if so, whether they are substantially true. If this step goes favourably for the publisher, the second step is to consider whether, because of the substantial truth of the contextual imputations, the plaintiff’s defamatory imputations (ie. the ones which the plaintiff has proved) did not further harm his or her reputation. Basten JA said that the second step required a “weighing (or balancing) exercise, the parameters of which have never been definitely resolved” (at 735 [125]). He discussed the unsatisfactory state of the authorities on the construction of s 26 and concluded (at 740 [146]):

The preferable construction of s 26(b), which is at least consistent with its ordinary meaning and is required by a purposive construction, means that the balancing exercise under s 26(b) places in the scales of harm the plaintiff’s imputations to the extent only that they are not substantially true and, in the defendant’s scale, the contextual imputations which are conveyed, and are substantially true. The result is that the plaintiff’s imputations found to be substantially true are not to be placed in the scale on the defendant’s side, nor are they used to diminish the reputation of the plaintiff prior to the balancing exercise being undertaken. The question to be determined is, therefore: do the plaintiff’s imputations not found to be substantially true further harm the reputation of the plaintiff given the harm done by the substantially true imputations pleaded by the defendant?

(emphasis added)

142    In my opinion, on the current state of the defence, it is not necessary to apply whatever is the law on this issue. It is convenient to adopt for the present pleading dispute Basten JA’s analysis as the current last word. However, as a matter of impression, it seems to me that s 26(b) is concerned with the reputation of the plaintiff at the time of the verdict, which, in ordinary course, will be the reputation as it stands after any imputation justified under s 25 or any other imputation that was conveyed, defamatory, but successfully defended by the publisher, has diminished it. What it seems s 26(b) deals with is what, if anything, is left of that reputation after all other substantive defences, such as justification, qualified privilege and honest opinion, have been determined in respect of all the imputations pleaded. There would be no intelligible purpose in s 26 of the Act treating established defences of other imputations as somehow being on an island removed from the overall assessment of what the right to bring a defamation proceeding is all about: namely, the determination of whether and, if so, to what extent the plaintiff has been injured in his or her reputation and, if that has happened, what damages should be awarded. It seems unlikely that Parliament intended the Court (being judge or jury) to undertake an academic exercise that must ignore the impact of any successfully defended imputations in assessing whether the plaintiff’s reputation is not further harmed by the remaining undefended imputations pleaded by the plaintiff, after taking into account the substantial truth of any proved contextual imputations. I would have thought that the issue was to assess the damage to the plaintiff’s reputation in fact, as found, or what is left of it, as found, after taking into account the impact on it of the plaintiff’s imputations that have been successfully defended and of any contextual imputations that are substantially true.

143    Here, as Mr Barilaro pointed out, Mr Shanks admitted that imputations 9(b) and 9(c) were conveyed and defamatory and I have found that Mr Shanks’ defences to them cannot be pleaded. Those imputations, at this stage of the proceeding, appear to be capable of causing very serious harm to Mr Barilaro’s reputation and, for present purposes, I think that it is appropriate to assume they did. In addition, at the moment, I do not think that imputation 9(d) can be defended as honest opinion for the reasons above. And, there are difficulties in evaluating what particulars will be available, after repleading, to support the defences of justification and honest opinion in respect of imputation 9(a).

144    It is not practicable to essay an hypothetical evaluation of capacity under s 26 on the proposed pleading. It would require assumptions that imputations 9(a) and 9(e) (and if it can be supported, 9(d)) were found to be honest opinion, and consideration of whether they and imputations 21(a)–(g), if they can be repleaded properly and were then found to be substantially true, would have so damaged Mr Barilaro’s reputation that imputations 9(b) and 9(c), being that he committed perjury nine times and ought to be gaoled, do not further harm his reputation. Until the pleading is recast, there is no point in speculating whether or not any new imputations and particulars would need to be dealt with on this issue before trial. In addition, I am mindful of what Gummow, Hayne and Heydon JJ said in Manock 232 CLR at 292 [97] about the effect of such pleading arguments.

The substantive defence issue

145    Mr Barilaro argued that, once imputations 9(b) and 9(c) were admitted to have been conveyed and defamatory, and Art 9 precludes Mr Shanks being able to defend them as he wished to plead, Mr Shanks could only rely on a plea in mitigation of damages and could not plead substantive defences to the remaining imputations if conveyed by the bruz video. He contended that, under the Act, the defences had to be pleaded to the whole of the matter complained of and could not be pleaded only to a part or parts.

146    I reject that submission. In Whelan v John Fairfax & Sons Ltd (2002) 56 NSWLR 89 at 102–108 [58]–[79], Levine J dealt comprehensively with the established principles for a publisher making out a defence involving partial justification at common law. That defence is not concerned with the proof of some or most, but not all, of the facts that would justify a specific imputation. Rather, it is concerned with the ability of a publisher to prove the substantial truth of one or more, but not all, of the plaintiff’s imputations. Similarly, courts have held that statutory defences can be pleaded to distinct charges or imputations and not others. If the partial justification or other plea to an individual imputation succeeds, no damages can be awarded for the part or parts or imputation so defended: see eg Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632 at 662–663 [93] per Besanko, Bromwich and Wheelahan JJ; Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623 at 627B at D–F per Jacobs and Manning JJA. And, as Lord Denning said in Plato Films Ltd v Spiedel [1961] AC 1090 at 1142:

… Although the newspaper cannot justify in whole it can justify in part. It can plead that, in so far as the words meant that he had been convicted twice, they were true and thus bring the two convictions before the jury. In Clarkson v. Lawson [(1830) 6 Bing. 587, 591] Sergeant Wilde put the very case: “If [the defendant] had charged the plaintiff with stealing three horses, he might have justified as to one,” and Park J. said he could. “It was the common practice,” said Sir James Scarlett in one of the cases cited to your Lordships, “if a defendant could not justify all, to justify a part of the libel, and produce witnesses to prove the part justified, as a ground of mitigation and reduction of damages”: see Waithman v. Weaver. [Dow. & Ry.N.P. 10 , 11] This rule is based on sound sense. Seeing that the law does not permit a defendant, in mitigation of damages, to adduce evidence which tends to justification, it must permit him to adduce the selfsame evidence when pleaded in partial justification: see Vessey v. Pike [(1829) 3 C. & P. 512] by Lord Tenterden C.J. If it were not so, the plaintiff would recover damages for a character which he did not possess or deserve; and this the law will not permit.

(emphasis added)

147    The same principle applies to defences such as comment or honest opinion that relate to one or more, but not all, specific imputations: Manock 232 CLR at 287–289 [83]. The defences respond to the defamatory meanings found at the end of the trial. This is so whether the imputations or meanings of which the plaintiff complains are conveyed by the defamatory publication or (as under the Defamation Act 1974 (NSW)) they are the causes of action. In Chau 271 FCR at 641–642 [19], the Full Court said that until the meaning of the matter complained of is established by the tribunal of fact it is not possible to determine whether the publication is justified, or whether other defences such as comment or honest opinion are established.

148    Mr Barilaro’s submissions confused the principle that a publisher cannot prove the substantial truth of only part, but not all, of a meaning or imputation of which the plaintiff complains with the principle that I have identified above, namely, that the publisher can justify the substantial truth of or defend one or more separate and distinct meanings or imputations while leaving another or others undefended or where a defence to them had failed: see too The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at 62 [302] (approving what Levine J held in Whelan 56 NSWLR 89) and 63 [306] per Gillard AJA, with whom Winneke ACJ at 7 [1] and Warren AJA at 89 [453] agreed, each giving additional remarks.

The leave application

149    Mr Svilans deposed that Mr Shanks published a YouTube video entitled ‘The Lawsuit Begins???’ on 31 May 2021, referring to Mr Barilaro in which he taunted: “…C’mon you pussy send it to me [scil: the originating application and statement of claim in this proceeding]”. And, on 4 June 2021, he published another YouTube video entitled ‘Lawyer CALMLY DISMEMBERS Me’ in which he said: “…we were waiting around for a week patiently thinking ‘yeah any day now it’ll come ok it’s getting close to the end of the week it’s still not there’ … so we went over to the next week, still nothing…”.

150    Mr Shanks explained, through Mr Davis’ affidavit, that on 4 June 2021, the day after Mr Shanks was served, Mr Langker had been arrested on two charges that he had stalked or intimidated Mr Barilaro. He was released that day on bail to appear at Newtown Local Court on 24 June 2021. The bail conditions prohibited Mr Langker from, among other actions, first, possessing or sharing images or caricatures of Mr Barilaro, secondly, commenting on Mr Barilaro’s personal appearance or behaviour, or, thirdly, participating in the publishing of content further harassing Mr Barilaro. Mr Davis said that Mr Langker was particularly concerned about breaching the first and second of those conditions and, until the Local Court varied them on 24 June 2021, and, so, had refrained from making essential enquiries of sources relevant to the preparation of Mr Shanks’ defence or searching through his and friendlyjordies’ digital and paper records. Mr Langker engaged Mr Davis’ firm on 7 June 2021. Mr Shanks engaged it on 14 June 2021. Mr Davis said that when he was acting for Mr Langker, he observed that the stress of his arrest and legal matters affected both Mr Langker and Mr Shanks.

151    Mr Davis said that Mr Langker’s records, contacts and general services did not become freely available to Mr Shanks and his lawyers until the afternoon of 24 June 2021, which until then had substantially restricted the legal team’s ability to obtain instructions. He said that, at about 1:49pm on 30 June 2021, when there appeared to be a real possibility that Mr Shanks would not be able to file his defence by 1 July 2021 in accordance with r 16.32, his employed solicitor, Nataliya Nikolic, emailed Mr Svilans seeking an extension of time to 7 July 2021.

152    On 1 July 2021, Mr Svilans spoke to Ms Nikolic and said that if Mr Shanks wanted an indulgence he would have to remove the bruz video from YouTube. The parties subsequently engaged in much correspondence, including Mr Shanks’ solicitors’ letter of 2 July 2021 that, misguidedly, sought that Mr Barilaro waive Parliamentary privilege. As noted above, the defence was lodged, but not accepted for filing, and served at about 4:30pm on 7 July 2021.

153    While I accept that Mr Shanks may have felt concern for Mr Langker after his arrest, he gave no explanation at all for his delay of 11 days after he was served before instructing solicitors.

154    Nonetheless, the overarching purpose of the civil practice and procedure provisions in the Federal Court of Australia Act and the Rules is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (s 37M(1)).

155    Mr Shanks ultimately did prepare and serve the defence, albeit nearly one week late, having made a mistake about the not necessarily straightforward way in which Art 9 may have affected his intention to plead defences to imputations 9(b) and 9(c).

156    However, for the reasons I have given, Mr Shanks should not be permitted to file the defence as currently pleaded. In my opinion, it is in the interests of justice that Mr Shanks be given an opportunity to plead properly and file, within 12 days, a defence in accordance with these reasons. That is, he can reformulate contextual imputations 21(a), 21(b), 21(c), 21(e) and 21(f) and clarify the deficiencies in the particulars including for the defences of justification for imputation 9(a), honest opinion for imputations 9(a), 9(d), 15(a) and 15(b), and, if that cannot cure them, abandon those parts of the current defence. I do not intend that this opportunity will involve a wholesale reformulation or the advancing of new defences. Mr Shanks should be held to pleading properly, if he can, no more than the substantive case in the current, but deficient, version of the defence: cf Manock 232 CLR at 293 [97].

Conclusion

157    In light of his being in default and largely unsuccessful on the substantive matters argued, Mr Shanks should pay Mr Barilaro’s costs of the leave application, and the strike out application.

Associate:

Dated:    13 August 2021

ANNEXURE A

Transcript of the first matter complained of, being the bruz video, published on YouTube on or about 14 September 2020