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

SUMMARY

RARES J:

Introduction

1)    The applicant, the Hon John Barilaro MP, is the Deputy Premier of the State of New South Wales. He complains that two videos made by the first respondent, Jordan Shanks, and published on YouTube, that the second respondent, Google LLC, administers and operates, are defamatory of him.

2)    The judgment that I am delivering today deals principally with an important issue about Parliamentary privilege arising out of the first video, entitled ‘bruz’, as well as with some more technical pleading issues.

3)    The bruz video was first published on about 14 September 2020. In his proposed defence, Mr Shanks admitted that he published the bruz video, and that it conveyed imputations 9(b) and 9(c) that were defamatory of Mr Barilaro, namely:

b.    Mr Barilaro committed perjury nine times,

c.    Mr Barilaro has so conducted himself in committing perjury nine times that he should be gaoled,

4)    On 16 July 2021, Mr Shanks applied for leave to file his defence out of time. He also sought an order striking out imputations 9(b) and 9(c). He argued that he could not receive a fair trial on the basis that he cannot defend them because his defence would breach Parliamentary privilege. Mr Shanks also sought an order that the proceeding be tried by jury, but that application cannot be heard until Google has been served in the United States by Mr Barilaro. I granted leave for him to do so on 23 July 2021.

5)    Mr Barilaro opposes the striking out of imputations 9(b) and 9(c), Mr Shanks being allowed to file his defence at all, or alternatively because in its current form it has various pleading defects.

The strike out application

6)    Mr Shanks wanted to plead in his defence that imputation 9(b) (Mr Barilaro committed perjury nine times) was substantially true and that imputation 9(c) (Mr Barilaro has so conducted himself in committing perjury nine times that he deserved to be in gaol) was his (Mr Shanks’) honest opinion that related to a matter of public interest (being what Mr Barilaro had said in 2018 in evidence to a committee of the Legislative Council of New South Wales) and was based on proper material (being his evidence on that occasion).

7)    However, Mr Shanks recognised that unless the New South Wales Parliament waives Parliamentary privilege, he cannot impeach or question what Mr Barilaro said in his evidence to the committee. That is because Article 9 of the Bill of Rights 1688 (Eng), which applies to proceedings in all Australian parliaments (including in New South Wales by force of the Imperial Acts Application Act 1969 (NSW)), prohibits anyone impeaching or questioning in any court, or any place out of Parliament, the freedom of speech, debates or proceedings in Parliament, including any Parliamentary committee.

Parliamentary privilege

8)    For centuries, the courts have recognised that Parliamentary privilege reflects a fundamental principle of the system of government in a representative democracy. That principle separates the exclusive power of Parliament to control its own processes from the jurisdiction that the courts might otherwise have had. Parliamentary privilege protects members of Parliament and other persons, including witnesses before committees, from being liable for, or having to justify, in court or anywhere except in Parliament, anything that he or she says in proceedings in Parliament. This ensures that members and others can feel completely secure to speak freely in Parliament (or its committees).

9)    Nonetheless, the common law, the implied constitutional freedom of communication on government and political matter and the statutory defences available under the Uniform Defamation Acts each recognise that every member of the community has a concomitant interest or duty to be able to report on or about proceedings in Parliament and to express opinions, or provide further information or arguments in respect of them. That is so even if what they say or write is apparently defamatory of a member or person who made a statement in or was the subject of a proceeding in Parliament. Thus, the law has developed processes to ensure that people outside Parliament can scrutinise, criticise or provide information about what others say under Parliamentary privilege without being liable for defamation if they act without malice or are not unreasonable in publishing. In particular, case law has dealt with situations in which the victim of a public attack on him or her made under absolute privilege in proceedings in Parliament can respond to the attack without being liable for defamation. Others who have an interest in, or duty to, discuss the subject matter also can publish to the public at large what they want to say that relates to or refutes the attack. And, they can disseminate information, opinions and arguments about those subjects.

10)    I have found that both Mr Shanks’ proposed defences to imputations 9(b) and 9(c) necessarily would involve him impeaching or questioning in this Court what Mr Barilaro said in proceedings in Parliament, and therefore those defences would breach Parliamentary privilege. As a result, he cannot be allowed to rely on those defences at the present time or until Parliamentary privilege is waived. The question then arises whether it is fair that Mr Barilaro can still rely on those two imputations, even though Mr Shanks has no defence to them that he can rely on in this Court.

Stay of proceedings

11)    A court has the power to stay or stop a party relying on a claim or defence in order to protect the administration of justice. However, such an order will only be made if there is no less drastic way of the court doing justice between the parties. The parties did not identify any precedent where a stay of proceedings has been granted in similar circumstances to this case.

12)    Here, Mr Shanks claimed that Mr Barilaro’s reliance on imputations 9(b) and 9(c) was an abuse of the process of this Court because he is unable to defend them due to Parliamentary privilege. However, that privilege is not the only instance of a law or means that prevents certain evidence from being admissible in legal proceedings. Parliamentary privilege is a privilege of the Parliament, not of an individual. Thus, Mr Barilaro has no capacity to waive it himself, nor does he need to seek that Parliament waive it. Mr Shanks can ask Parliament to waive its privilege if he wishes.

13)    I have found that, importantly, Mr Shanks chose the way in which he published the bruz video. I have found that the bruz video appeared to have been scripted and produced with considerable technical skills and support. It was not a spontaneous or unprepared publication. In particular, Mr Shanks chose what he said in it and how he said it. In the bruz video, Mr Shanks was not responding to an attack made by Mr Barilaro on him under Parliamentary privilege.

14)    Mr Shanks does not appear to have any other defences than justification to imputation 9(b) and honest opinion to imputation 9(c). Mr Barilaro does not seem to have caused that situation. Rather, it arose because of the way in which Mr Shanks chose to publish the bruz video. In my opinion, it is difficult to see how it is unfair that Parliamentary privilege will prevent Mr Shanks from relying on those defences. Instead, I have found that it would be unfair to deprive Mr Barilaro of the right to vindicate his reputation that Mr Shanks attacked.

15)    Accordingly, I have held that Mr Shanks’ difficulty in pleading a defence to imputations 9(b) and 9(c) flows from his own decisions as to what he said and how he conveyed those defamatory meanings in the bruz video. It would be an affront to justice if a publisher could choose to question or impeach proceedings in Parliament and, by doing so, create for themselves an effective immunity from suit by the member or person attacked. Such a result would convert Parliamentary privilege 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 in Parliamentary privilege. That would leave the member or person defamed without a remedy that every other individual is entitled to seek from the court, however well founded or baseless the attack.

The strike out application – conclusion

16)    Accordingly, I have refused to stay the proceeding in relation to, or strike out, imputations 9(b) and 9(c), or allow Mr Shanks to raise defences to those two imputations that are in breach of Parliamentary privilege.

The pleading issues

17)    Mr Barilaro also argued that Mr Shanks had not set out the facts and circumstances on which he relied that could support his other defences to the bruz video or the second video, entitled ‘Secret Dictatorship’.

18)    I have accepted some of Mr Barilaro’s arguments and rejected others. In the end, I have reached the conclusion that the proposed defence is pleaded defectively. I will allow Mr Shanks the opportunity, if he can, to remedy those defects and reformulate some of the matters on which he wants to defend Mr Barilaro’s claims of defamation.

Conclusion

19)    While Mr Shanks’ explanation of why he was nearly one week late in filing his defence was inadequate, I have found that it is in the interests of justice to give him an opportunity to fix the defects in it, if he can remedy them, so that the case between him and Mr Barilaro can be decided on its legal and factual merits.

20)    Accordingly, I will order that Mr Shanks may file a defence within 12 days that omits the defences that would infringe Parliamentary privilege and either remedies or omits the defects in the defences that I found were not properly supported by the facts and circumstances on which Mr Shanks said he relied. I have also ordered Mr Shanks to pay Mr Barilaro’s costs of the matters I have just decided.

Date: 13 August 2021

Sydney