Barilaro v Shanks-Markovina (No 2)

The case of Barilaro v Shanks-Markovina (No 2) involves an application by Mr Shanks, the publisher of a website, to be allowed to plead certain defences in a defamation action brought by Mr Barilaro, a member of parliament. The central dispute centres on whether Mr Shanks can plead and seek to prove certain defences of justification and honest opinion in relation to imputations that Mr Barilaro committed perjury before a parliamentary committee. The Federal Court of Australia was tasked with deciding whether these defences could be pleaded without infringing on parliamentary privilege, specifically under Article 9 of the Bill of Rights 1688 (Eng).

The court had to determine if the publisher, Mr Shanks, was entitled to plead defences that would inherently question parliamentary proceedings, which is prohibited by parliamentary privilege. The court found that the defences of justification and honest opinion would require questioning the parliamentary proceedings, thus infringing on parliamentary privilege. Consequently, the court held that Mr Shanks was not entitled to plead these defences as they would breach parliamentary privilege. Furthermore, the court considered whether it was an abuse of process for Mr Shanks to rely on the imputations that Mr Barilaro committed perjury, given the defences would infringe parliamentary privilege. The court ruled that the operation of parliamentary privilege did not create unfairness for Mr Shanks and that it was not an abuse of process to refuse a stay or strike out of the proceedings in relation to these imputations.

The court also addressed the pleading issues, particularly whether the particulars could support the proposed defences of justification and honest opinion. It was determined that if the defences were capable of proper pleading, Mr Shanks must reformulate the contextual imputations and particulars of justification and honest opinion defences. The court concluded that the defences should be reformulated and clarified within specified parameters to ensure they complied with the Federal Court Rules 2011 and the Defamation Act 2005 (NSW). The court granted Mr Shanks leave to file and serve a reformulated defence within 12 days.

In conclusion, the court ruled that Mr Shanks should not be permitted to file the defence as currently pleaded but should be given an opportunity to reformulate the defence. The court ordered that Mr Shanks must omit certain defences, reformulate specific imputations, and clarify the deficiencies in the particulars within 12 days. Additionally, the court ordered that Mr Shanks should pay Mr Barilaro's costs of the leave application and the strike-out application.