O'Shane v Harbour Radio Pty Ltd
[2013] NSWCA 315
•24 September 2013
|
New South Wales |
Case Name: | O'Shane v Harbour Radio Pty Ltd |
Medium Neutral Citation: | [2013] NSWCA 315 |
Hearing Date(s): | 18 September, 29 November 2012 |
Decision Date: | 24 September 2013 |
Before: | Beazley P at [1]; |
Decision: | Answers to referred questions (at [127]-[128]): |
Catchwords: | TORTS - defamation - judicial officer suing in respect of criticism of her performance of her judicial function - defence of truth - Uniform Civil Procedure Rules 2005, r 1.21 - questions referred to Court of Appeal - whether the defence of truth is precluded by the principle of judicial immunity - consequences for the proceedings |
Legislation Cited: | Civil Procedure Act 2005, ss 100, 101 |
Cases Cited: | APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44; 224 CLR 322 |
Texts Cited: | A W Bradley, "Judges and the Media: The Kilmuir Rules" [1986] PL 383 |
Category: | Principal judgment |
Parties: | Patricia June O'Shane (Plaintiff) |
Representation: | Counsel: |
File Number(s): | 2012/172787 |
Decision under appeal: | |
Court or Tribunal: | Supreme Court |
Citation: | Patricia June O'Shane v Harbour Radio Pty Ltd & Anor |
Date of Decision: | 30 May 2012 |
Before: | McCallum J |
File Number(s): | 2011/250818 |
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Referred Questions
HEADNOTE
[This headnote is not to be read as part of the judgment]
The plaintiff, Patricia O'Shane, brought a defamation action against the first defendant, Harbour Radio Pty Ltd, and the second defendant, Alan Jones. The alleged defamatory comments made and published by the defendants were in respect of the plaintiff's conduct as and capacity to be a magistrate. The defendants pleaded a defence of truth in respect of the allegedly defamatory imputations and particularised nine separate proceedings over which the plaintiff presided.
The plaintiff filed a notice of motion seeking an order, pursuant to the Uniform Civil Procedure Rules (UCPR), r 14.28(1)(a) or r 14.28(1)(c), to strike out portions of the defendants' particulars relating to the defence of truth on the basis that the defendants were precluded from relying on the particulars by reason of the principle of judicial immunity or because otherwise it was an abuse of process.
McCallum J referred questions to the Court of Appeal pursuant to the UCPR, r 1.21 (see judgment at [17]). The referred questions raised issues as to whether:
A. the defendants were precluded by the principle of judicial immunity from pleading their defence of truth (Question A);
B. if so, what is the consequence for these proceedings (Question B);
C. the defendants' defence of truth constituted an abuse of process on the basis that it is inconsistent with the principle of finality (Question C);
D. the principle of judicial immunity is consistent with the implied freedom of political communication guaranteed by the Australian Constitution (Question D)?;
E. the plaintiff is barred from bringing defamation proceedings with respect to criticism of the performance of her function as a magistrate, having regard to the decision in Troughton v McIntosh (1896) 17 NSWR(L) 334 (Question E).
The issues raised by the referred questions were answered as follows:
In respect of Question A:
(i) Held per Beazley P, McColl JA and Tobias AJA: The plaintiff is not entitled to rely upon the immunity of a judicial officer in the performance of her judicial functions to preclude the defendants from pleading their defence of truth by reference to the particularised decisions: [92], [131], [243].
Principal cases considered: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1; Fingleton v The Queen [2005] HCA 34; 227 CLR 166; Forge v ASIC [2006] HCA 44; 228 CLR 45; R v Skinner (1772) 98 ER 529; Scott v Stansfield (1867-68) LR 3 Ex 220; Sirros v Moore [1975] QB 118.
In respect of Question B:
(i) Held per Beazley P, McColl JA, Basten JA, Tobias AJA and McCallum J: This issue did not need to be determined: [94], [131], [239], [243], [263].
In respect of Question C:
(i) Held per Beazley P, McColl JA and Tobias AJA: It would not be an abuse of process for the defendants to rely on a defence of truth in the manner particularised in the further amended defence: [117]-[120], [131], [243]. A re-litigation, by a different tribunal of fact of the question whether a judicial officer made legal errors, would constitute an abuse of process: [121], [131], [243].
Principal cases considered: Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; 226 CLR 256; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1; Hunter v Chief Constable of the West Midlands Police [1982] AC 529; Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23; R v O'Halloran [2000] NSWCCA 528; 159 FLR 260; Reichel v Magrath (1889) 14 App Cas 665; State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Rep ¶81-423 (64,077); Walton v Gardiner [1993] HCA 77; 177 CLR 378.
In respect of question D:
(i) Held per Beazley P, McColl JA and Tobias AJA: The discussion about the discharge by a judicial officer of their function in a particular case is not a discussion concerning political or governmental matters in the relevant sense: [124]-[126], [131], [243].
In respect of question E:
(i) Held per Beazley P, McColl JA and Tobias AJA: The plaintiff is not debarred from bringing defamation proceedings with respect to criticism of the performance of her function as a judicial officer: [62]-[70], [132]-[158], [244]-[262].
(ii) Held per Basten JA and McCallum J: Because the matter complained of and each of the pleaded imputations relate to the conduct, competence and capacity of the plaintiff in carrying out her functions as a judicial officer, she has no cause of action against the defendants in defamation: [241], [263]-[264].
Principal cases considered: Mann v O'Neill [1997] HCA 28; 191 CLR 204; Troughton v McIntosh (1896) 17 NSWR(L) 334.
JUDGMENT
| INDEX | |
| BEAZLEY P: Introduction | [1] |
| History of proceedings | [15] |
| The plaintiff's notice of motion | [15] |
| The referred questions | [17] |
| The defendants' notice of motion for a stay | [19] |
| Proceedings in the Court of Appeal | [20] |
| Further particulars provided and further amended defence filed | [26] |
| Plaintiff seeks to vacate order referring questions for determination | [28] |
| A further question | [37] |
| Issues for determination | [40] |
| Question E: is the plaintiff entitled to bring proceedings (the Troughton v McIntosh question)? | [41] |
| Troughton v McIntosh (1896) 17 NSWR(L) 334 | [44] |
| Mann v O'Neill [1997] HCA 28; 191 CLR 204 | [49] |
| Consideration | [61] |
| Question A: are the defendants precluded by the principle of judicial immunity from pleading their defence of truth? | [71] |
| Consideration | [80] |
| Question B: if Question A is answered in the affirmative, what is the consequence for these proceedings? | [94] |
| Question C: is the defence of truth an abuse of process? | [95] |
| Consideration | [112] |
| Question D: is the principle of judicial immunity consistent with the implied freedom of political communication guaranteed by the Australian Constitution? | [123] |
| Conclusion Answers to referred questions | [127] |
| The defendants' notice of motion for a stay | [129] |
| McCOLL JA: Reasons concurring with Beazley P | [131] |
BASTEN JA: | [159] |
Procedural history | [160] |
Relevance of Judicial Immunity | [181] |
Relitigation of earlier proceedings | [186] |
| Whether claim in defamation maintainable by judicial officer | [202] |
| Other proceedings by judicial officers | [212] |
Underlying principles | [224] |
| Implied constitutional freedom of communication | [233] |
Conclusions | [239] |
| TOBIAS AJA: Reasons concurring with Beazley P | [243] |
| McCALLUM J: Reasons concurring with Basten JA | [263] |
BEAZLEY P:
Introduction
These proceedings relate to a defamation action brought by the plaintiff, Patricia June O'Shane, against the first defendant, Harbour Radio Pty Ltd (Harbour Radio) and the second defendant, Alan Belford Jones, in respect of alleged defamatory comments made and published by the defendants in respect of the plaintiff's conduct as and capacity to be a magistrate. The defendants have pleaded, by way of defence, inter alia that the alleged defamatory imputations are substantially true. The proceedings were commenced in the Common Law Division of the Supreme Court. On 30 May 2012, McCallum J referred certain questions to the Court for determination under the Uniform Civil Procedure Rules 2005 (UCPR), r 1.21.
In her statement of claim, the plaintiff alleged that she was defamed by the defendants on two occasions. The first matter complained of related to comments made by the first defendant on the second defendants' radio program on 27 May 2011, at approximately 6:44 am. The entire publication related, primarily, to complaints made to the Judicial Commission of New South Wales (the Judicial Commission) relating to a magistrate, Mr B Maloney LCM. In the course of making remarks in respect of that matter, Mr Jones said:
"My understanding is the complaints [against Maloney LCM] are in respect to what are said to be inappropriate comments. My understanding is there's no reference to any wrong decisions based on law. But here's the rub. Pat O'Shane can deliver the most diabolical and wrong decisions in law, and they go through to the keeper, Pat O'Shane."
The plaintiff alleged that the first matter complained of, in its natural and ordinary meaning, conveyed the following meanings which were defamatory of her:
"(a) The plaintiff is such a bad Magistrate that she should be removed from her office as a Magistrate.
(b) The plaintiff failed in her duties as a Magistrate by delivering diabolically bad decisions.
(c) The plaintiff failed in her duty as a Magistrate by delivering decisions which are wrong in law.
(d) The plaintiff had been so grossly derelict in her duty as a Magistrate to deserve to be the subject of an adverse finding by the Judicial Commission."
The second matter complained of was contained in statements made by the first defendant on the second defendants' radio program on 6 June 2011, at approximately 7:44 am. Again, the entire publication primarily concerned Mr B Maloney LCM, during the course of which Mr Jones also said:
"... I said last week, Pat O'Shane can deliver the most diabolical and wrong judgments at law and they just keep going through to the keeper.
...
Now Greg Smith most probably has limited powers as Attorney-General, but is [Maloney LCM] going to be forced to front the Parliament to defend himself? Pat O'Shane still strides the corridors of the Magistrates Courts."
The plaintiff submitted that the second matter complained of conveyed the same meanings which were defamatory of the plaintiff as the first matter complained of: see para [4] above.
The plaintiff claimed damages including aggravated damages, costs and interest pursuant to the Civil Procedure Act 2005, s 100 and s 101.
The defendants have defended the proceedings on three bases. First, the defendants denied that the first and second matters complained of, in their natural and ordinary meaning, were capable of being defamatory or were in fact defamatory of the plaintiff; conveyed or were capable of conveying the meanings alleged by the plaintiff, or that the imputations are, or are capable of being, defamatory of the plaintiff.
Secondly and in the alternative, the defendants have pleaded a defence of truth in respect of each imputation: see para 10 of the defence, amended defence and further amended defence. The defendants particularised, in support of the defence of truth, nine separate proceedings over which the plaintiff had presided.
The decisions particularised in para 10 of the defence are: DPP v Kanaan; Police v Langham; Police v Jones & Ors; R v Wililo; DPP v Elskaf; DPP v Asplund; DPP v Yeo; DPP v Neamatic; DPP v Lee (the particularised decisions). The defendants have pleaded that the particularised decisions were wrong in fact or law, that things said by the plaintiff in the course of sitting as a magistrate in these matters were variously "inappropriate", "unwarranted" or similar and that the plaintiff had made the decisions in an inappropriate manner. Seven of the particularised decisions (being all except the matters of Kanaan and Jones) had been the subject of a successful appeal to the Supreme Court (the appeal judgments).
In their amended defence, the defendants pleaded that they intended to prove the defence of truth by the tender of transcripts or other records of each of the proceedings, as well as by the tender of the appeal judgments. The defendants pleaded on the amended defence that the appeal judgments were, in each case, correct. A further amended defence has been filed. In that pleading, the defendants state they will adopt the reasoning in each of the appeal judgments. However, they no longer plead that they will prove each judgment to be correct.
Thirdly, the defendants alleged that if the imputations were found to be defamatory of the plaintiff, the first and second matters complained of: contained expressions of opinion; such opinion was based on proper material and on no other material or, alternatively, was based to some extent on proper material and represented an opinion which might reasonably be based on that material to the extent to which it was proper material; the material related to a matter of public interest; and the opinion was an expression of opinion of the second defendant.
The defendants also pleaded their intention to make a case in mitigation of damages.
As is discussed below, the matter presently before the Court relates to the defence of truth.
History of proceedings
The plaintiff's notice of motion
The plaintiff filed a notice of motion in the Supreme Court on 19 March 2012 seeking an order, pursuant to the UCPR, r 14.28(1)(a) or alternatively, r 14.28(1)(c) to strike out substantial portions of the defendants' particulars relating to the defence of truth. The notice of motion raised the question whether the defendants were precluded from relying on the identified particulars by reason of the principle of judicial immunity or because the defence of truth was otherwise an abuse of process.
At the time McCallum J made the order under UCPR, r 1.21, her Honour also directed the defendants serve a s 78B Notice in respect of constitutional matters that had been raised by the defendants. The content of the s 78B Notice replicated Question D.
The referred questions
The questions referred to this Court by McCallum J (the referred questions) were as follows:
"Question A
Does the rule of judicial immunity prevent any inquiry in these proceedings into:
(i) the manner in which the plaintiff heard and determined each of the 9 matters attributed to her in the particulars to paragraph 10 of the amended defence (filed in court on 30 May 2012);
(ii) the correctness of those decisions;
(iii) the correctness of the following decisions of the Supreme Court:
the decision of Latham J in R v Kanaan [2006] NSWSC 539;
the decision of Studdert J in McCormack v Langham, Supreme Court of NSW, 9 September 1991 (unreported);
the decision of Garling J in DPP (NSW) v Elskaf [2012] NSWSC 21;
the decision of Hall J in Peters v Asplund [2008] NSWSC 1061;
the decision of Johnson J in DPP v Yeo [2008] NSWSC 953;
the decision of Howie J in DPP v Neamati [2007] NSWSC 746;
the decision of Howie J in DPP v Lee [2006] NSWSC 270.
Question B
If the rule of judicial immunity does prevent any inquiry into those matters in these proceedings, whether:
(i) paragraph 10 of the amended defence should be struck out (as contended by the plaintiff); or
(ii) the plaintiff's action should be permanently stayed (as contended by the defendants); or
(iii) the plaintiff's action should be dismissed (as contended by the defendants) on the basis that the case raises the issue of the truth or falsity of the matter sued on.
Question C
Whether, even if the rule of judicial immunity does not operate so as to prevent any inquiry into those matters in these proceedings, paragraph 10 of the amended defence should in any event be struck out as an abuse of process as trespassing on the principle of finality of decisions.
Question D
(i) Whether the matter sued on constitutes a communication on government and political matters for the purposes of the implied Constitutional freedom of communication on such matters;
(ii) if so, and if the rule of judicial immunity operates to prevent such inquiry, whether the rule burdens the Constitutional freedom in its effect; and
(iii) if so, whether the rule is reasonably appropriate and adapted to serve a legitimate end, having regard to the Constitutionally prescribed system of representative government, or whether the rule should in some manner be adapted to the Constitutional freedom."
It became apparent during the course of hearing the referred questions that Questions A(i) and A(iii) no longer arise. As to Question A(i), the plaintiff conceded in argument that the defendants could seek to prove both her conduct in court and her state of mind. As to Question A(iii), the defendants confirmed that they do not propose to prove the "correctness" of the appeal judgments. It should be noted that the "correctness" of the decision of Latham J in R v Kanaan [2006] NSWSC 539 could not relevantly have been in contention, in that it was a sentence hearing after a jury trial and not an appeal from a decision of the plaintiff.
The defendants' notice of motion for a stay
On 19 June 2012, the defendants filed a notice of motion in the Supreme Court seeking orders that the proceedings be stayed. The defendants' notice of motion was filed in the event that the plaintiff's motion to strike out the defence of truth was successful.
Proceedings in the Court of Appeal
Complications arose in the course of the hearing of the referred questions in this Court. The plaintiff's strike out motion was based on the assumption that the defendants intended to re-litigate the particularised decisions and the orders she sought were initially directed to specified subparagraphs of para 10. However, in her written and oral argument, the plaintiff stated that she sought an order striking out the whole of para 10. The effect of such an order, if made, would be to strike out the defence of truth.
However, in the course of oral argument, the plaintiff accepted that the defendants could support their defence of truth by tendering the appeal judgments. She also accepted that evidence, including the transcript of proceedings, could be tendered of her conduct, and statements she made in the course of hearing the cases, to the extent that such material was admissible. The plaintiff contended, however, that it was not open to the defendants to re-litigate in the defamation hearing the particularised decisions with a view to having the jury determine that the plaintiff was wrong in respect of those decisions. The plaintiff submitted it was apparent from the pleadings that this was what the defendants were seeking to do.
The defendants, for their part, initially informed the Court they proposed to argue that eight of the nine particularised decisions of her Honour were wrong in law. Seven of those decisions, namely, Langham; Wililo; Elskaf; Asplund; Yeo; Neamatic; and Lee, as I have indicated, had been overturned on appeal. In respect of those decisions, the defendants proposed "to prove or seek to establish that [the reasoning of the appellate court] was correct". In respect of Jones, (referred to in the proceedings as the Berlei bras decision) the defendants stated in their written submissions that they proposed to contend that the manner in which the plaintiff came to her decision and the considerations she took into account were wrong. The ninth decision was Kanaan about which different issues arose. This is discussed below.
The defendants also stated in their written submissions that they would rely on statements made by the plaintiff in court in the course of hearing each of the cases, as well as the evidence and submissions in those cases. It should also be noted that the amended defence stated that further particulars would be provided following discovery, interrogatories and the issue of subpoenas. The further amended defence contains a similar statement.
It became apparent during the course of the defendants' oral argument that there was confusion as to the manner in which the defendants proposed to conduct their defence of truth and senior counsel for the defendants indicated that little attention had been given to that question. At the hearing on 18 September 2012, the defendants informed the Court that it was intended, at the defamation trial, that the hearing would proceed by a consideration of each of the particularised decisions, rather than by way of a total re-agitation of each entire case. As I understood this submission, it was an indication by the defendants that they did not propose to call witnesses in the various cases, as the plaintiff had previously understood to be the position. Rather, the defendants indicated they would, in a "piecemeal" way, argue the defence of truth by reference to the appeal judgments and selected portions of the transcript of the particularised decisions. A somewhat different position was subsequently taken at the further hearing on 29 November, with which I deal below.
The Court made directions at the end of the first day of hearing and directed that the plaintiff provide a copy of the amended defence marked up so as to specify which parts of para 10 the plaintiff sought to strike out, as well as submissions as to why those paragraphs should be struck out. The defendants were directed to provide submissions in reply. The Court also directed the defendants to provide particulars of the facts upon which they proposed to rely to establish that the particularised decisions were wrong and that the decisions of the Supreme Court were correct, including clarification as to what was meant by the statement in the amended defence that the defendants "will seek to prove or seek to establish this reasoning [in each of the appeal judgments] is correct".
Further particulars provided and further amended defence filed
The defendants provided particulars of justification on 10 October 2012. Senior counsel for the defendants confirmed in a directions hearing before McCallum J on 12 October that those were the particulars upon which they relied. On 20 November, the Associate to McCallum J forwarded an email to the parties directing the defendants to:
"... file a further amended defence incorporating those particulars on or before Thursday, 22 November 2012. The Court requires strict compliance with this timetable."
A further amended defence was not filed in accordance with this direction. It was subsequently filed on 30 November 2012, pursuant to a further direction of mine on 29 November 2012.
Plaintiff seeks to vacate order referring questions for determination
As a consequence of being provided with the particulars of justification and the further amended defence, the plaintiff considered that there was no longer an attempt by the defendants to re-litigate the particularised decisions. This led the plaintiff to the view that it was premature for the referred questions to be determined before trial. In this regard, the defendants, in a directions hearing on 27 November 2012, had informed the Court that they "rel[y] upon the record to prove the points pleaded", including "the transcript and if necessary, the exhibits". Accordingly, on 29 November 2012, the plaintiff applied for a vacation of the order for the determination of the referred questions.
The manner in which the defendants proposed to prove the defence of truth was again the subject of submissions to the Court on 29 November 2012. Senior counsel for the defendants outlined the position proposed to be taken so as to "be very clear about what we intend by our defence". In respect of the seven decisions that had been subject to appellate review (being all the particularised decisions except Kanaan and the Berlei bra decision), the defendants stated that they proposed to prove that the plaintiff made errors of law by the tender of the appeal judgments. This proposed method of proof had been particularised in the concluding sub-paragraph of each pleading in respect of each of the seven cases in question, with this qualification: the defendants would no longer seek to prove that the appeal judgments were correct. The defendants also informed the Court that as an alternative and additional means of proof the defendants proposed to prove that the plaintiff made errors of law by a "necessary re-examination" of the plaintiff's decisions by seeking to tender the transcript of the evidence, the exhibits and a transcript of her Honour's reasons.
The defendants confirmed to the Court that the difference between the approach now proposed and that taken previously was that they had abandoned the attempt to re-litigate the Supreme Court decisions. The defendants stated, however, that they proposed to continue to assert, by reference to the evidence, exhibits and the plaintiff's reasons, that the plaintiff committed errors of law and that on that approach, a re-examination of the reasons given by the plaintiff in the proceedings before her was required. The defendants submitted, therefore, that referred questions A(ii), B, C and D remained live issues for determination by the Court of Appeal.
The matters of Kanaan and Jones were in a different category from the other seven particularised matters in that neither decision had been the subject of an appeal.
Kanaan involved a committal hearing of Kanaan on charges of discharge a firearm with intent to murder a police constable and maliciously discharge a firearm with intent to do grievous bodily harm to the police constable. The plaintiff dismissed the charges. The defendants pleaded that in her reasons for dismissing the charges, the plaintiff made "a number of clear errors" in respect of the identification evidence, the question of the "requisite specific intention to murder" the police constable and in her finding that there was no reasonable prospect that a jury, properly instructed, would convict Kanaan. This last allegation was said to be an error of law. In addition, the defendants pleaded that the plaintiff had behaved disgracefully in the course of the proceedings in two respects: first, in describing the conduct of the police constables, including the police constable who had been shot, as "stupid, reckless and foolhardy" and, secondly, in stating that their actions "indicated police harassment of youth". In both instances, the defendants pleaded that there was "no basis" in the evidence for either comment.
Jones was a sentence proceeding in respect of four women who had pleaded guilty to maliciously damaging a billboard advertising Berlei bras. The plaintiff declined to record a conviction in respect of each defendant under the Crimes Act 1900, s 556A. In relation to this matter, the defendants pleaded that the plaintiff misconducted herself, having regard to various statements she made, including that "the real crime in this matter was the erection of these extremely offensive advertisements"; and "I am enraged to find myself in a position where I have to deal with four women who have taken the action which they did on a particular occasion ... I don't for one moment accept that they were misguided in their actions". The defendants pleaded, inter alia, that there was no proper basis for the plaintiff to make those statements. In respect of the second comment, the defendants submitted that the statement amounted to misconduct and brought the administration of justice into disrepute because, in effect, it asserted that persons who had committed a serious offence were not misguided in doing so. The defendants also pleaded that the plaintiff had predetermined the matter in chambers, thus breaching the principles of natural justice and that she had determined the case "in a state of furious rage contrary to her judicial oath".
The Court was informed, as in any event appears from the further amended defence, that the proposed method of proof of these two matters will be by reference to the transcript of the proceedings, including the plaintiff's reasons. Accordingly, as the defendants informed the Court, it proposes to prove its defence of truth in respect of these two cases in the same way as the alternate means of proof proposed in respect of the other seven matters.
Following the defendants' submissions in which they clarified how they were proposing to prove their defence of truth, the plaintiff stated her position as follows. In respect of the seven cases that had been subject of appeal, she accepted that no re-litigation was involved as the defendants proposed to rely on the appeal judgments and not otherwise prove their correctness. She conceded that, on the basis of the appeal judgments, her decisions had involved errors of law. She accepted that at least in respect of Kanaan, and possibly the Berlei bras matter, the defendant's proposed method of proof involved a re-litigation of the proceeding so that some, at least, of the referred questions remained in issue. The plaintiff nonetheless maintained her position that it was premature to determine the referred questions.
The Court refused the application to vacate the order referring the questions to the Court for determination. It was of the opinion that the questions were of a jurisdictional nature and that the Court could deal with them of its own motion. The Court was also of the opinion that the defendants' particulars, particularly in regard to Kanaan and the Berlei bras matters, potentially raised questions of re-litigation and required consideration of the referred questions.
A further question
The final procedural issue that should be identified at this preliminary stage relates to the question whether the defendants maintained an argument, raised in oral debate on the first day of the appeal hearing, that the plaintiff was barred from bringing the defamation proceedings: see Troughton v McIntosh (1896) 17 NSWR(L) 334. The defendants' position on this wavered, but on 29 November 2012, they were given leave to file and serve written submissions in respect of this issue.
In written submissions to the Court filed on 6 December 2012, the defendants suggested an additional question be determined by the Court as follows:
"Question E
(i) Whether the principle identified in Troughton v McIntosh (1896) 17 NSWR(L) 334 prevents the plaintiff as a magistrate from suing for defamation on matter that gives rise to imputations concerning the performance of her duties as a magistrate or alternatively on a matter that asserts the incorrectness of her decisions;
(ii) If No to (i) Whether the principle identified in Troughton v McIntosh (1896) 17 NSWR(L) 334 prevents the plaintiff as a magistrate from suing for defamation on matter that give rise to imputations concerning the performance of her duties as a magistrate, or alternatively on a matter that asserts the incorrectness of her decisions, in circumstances where the plaintiff relies on the principle of finality and/or judicial immunity to prevent the defendant from mounting all or part of its justification defence."
No objection was taken to this formulation of the issue and, in my opinion, it is appropriate to consider it on the basis that it comprises a question referred to the Court by McCallum J, albeit only raised in the course of argument in this Court: see UCPR, r 2.1.
Issues for determination
The referred questions have been set out above at [17]. I consider that Question E raises a preliminary question, in the sense that the answer to it will determine whether the other questions remain in issue. Accordingly, I propose to deal with it first. Rather than repeat the questions, it is convenient to identify, in briefer terms than the questions themselves, the issues that each question raises. Those issues are as follows:
(1) Question E: Is the plaintiff barred from bringing defamation proceedings with respect to criticism of the performance of her function as a magistrate, having regard to the decision in Troughton v McIntosh?
(2) Question A: Are the defendants precluded by the principle of judicial immunity from pleading their defence of truth?
(3) Question B: If Question A is answered in the affirmative, what is the consequence for these proceedings?
(4) Question C: Does the defendants' defence of truth constitute an abuse of process on the basis that it is inconsistent with the principle of finality?
(5) Question D: Is the principle of judicial immunity consistent with the implied freedom of political communication guaranteed by the Australian Constitution?
Question E: is the plaintiff entitled to bring proceedings (the Troughton v McIntosh question)?
The defendants submitted that the principle in Troughton v McIntosh barred the plaintiff from suing on defamatory statements relating to her performance as a magistrate. The defendants did not suggest that a judicial officer can never sue for defamation. Rather, their submission was that Troughton v McIntosh was authority for the proposition that a judicial officer is prevented from commencing and maintaining defamation proceedings when the imputations go directly to their behaviour in the performance of their judicial office.
The defendants submitted that even if the Court was against that proposition as a statement of principle and further if they were prohibited from relying on their defence of truth, either on the basis of the principle of finality or judicial immunity, Troughton v McIntosh ought to be reconsidered in that light. As I discuss below, this raises important and, indeed, fundamental considerations.
The defendants also submitted that Troughton v McIntosh may be authority for the proposition that a judicial officer may not bring proceedings involving the ventilation of the correctness of decisions that a judicial officer has made, irrespective of whether the issue arises on the case of the plaintiff or on that of the defendants. In this regard, the defendants submitted that the establishment of the falsity of the imputation was indispensable to the plaintiff's defamation claim and that the presumption of falsity would not remedy this hurdle.
Troughton v McIntosh (1896) 17 NSWR(L) 334
Troughton v McIntosh concerned defamation proceedings brought by a police magistrate against a litigant who had spoken the alleged defamatory words in Court just after the magistrate had dismissed four out of five of the litigant's appeals and had refused to deal with another matter that was not before the magistrate. By majority (Stephen and Cohen JJ), the New South Wales Full Court held that the action was not maintainable, because the words had been uttered in the course of the proceedings and were thus protected by the immunity that attaches to words spoken in court.
Stephen J considered that the defamatory utterances had been made in the course of the judicial proceedings and for that reason were not maintainable. His Honour stated that there were "clear reasons of public policy" to deny the magistrate's claim. In his Honour's opinion, to permit such an action would have the "disastrous effect of bringing the administration of justice into contempt". Stephen J also considered that if the words spoken by the litigant constituted a contempt of court, the judicial officer did not have the option of both vindicating the Court by the initiation of contempt proceedings and also asking for damages for injury to his "personal character" by way of defamation proceedings. His Honour stated, at 341:
"I have thus come to the conclusion that an imputation on a Judge presiding in a superior Court is an imputation on the tribunal, punishable by fine, imprisonment, or indictment, and that there is not a personal remedy open to the judge." (emphasis added)
For Stephen J, at 343, the prospect of a private right of action being defeated by the defence of truth was "anomalous and a scandal upon the administration of justice". However, his Honour's comments were made in a particular context, which are best reflected in his remarks, at 340 (cited with apparent approval by Kirby J in Mann v O'Neill [1997] HCA 28; 191 CLR 204 at 271, fn 290):
"For a Judge to descend from his judgment seat to the floor of the Court as a suitor against the man with whom he dealt or could have dealt judicially, seems to be a denial of the majesty of the law, a forgetfulness of his high representative character, an abasement of the dignity of his Court and his prestige as a Judge. Beyond this the grave issue that such actions might involve would expose the tribunals, the equity of their decisions, the motives of those who give them, to the license claimed for counsel, witnesses, and parties, with the disastrous effect of bringing the administration of justice into contempt." (emphasis added)
Cohen J was of the opinion that the litigant had not lost his status as a party in proceedings at the time that he made the defamatory utterances as the statements had been made in court. However, his Honour, at 358-359, made the following cautionary observation:
"... the public interests are best conserved by exclusively leaving their personal or official vindication to any action which might be taken to punish the defamation as a public wrong, and by trusting to the generally just instincts of the public ... for a repudiation of any unfounded calumnies that may be aimed at their purity, impartiality or independence. I strongly entertain the view that Judges of the inferior Courts, and Justices of the Peace, even for defamatory words uttered outside Court, in relation to their judicial or magisterial functions, would best mark the importance of their offices, secure the public recognition of that importance, and emphasise their sovereign origin by acting upon the rule so universally acted upon by the Judges of the superior Courts." (defendants' emphasis)
Simpson J dissented. In his Honour's view, a magistrate could maintain defamation proceedings both in respect of statements made in court and statements made out of court: see at 347 and 350-351.
Mann v O'Neill [1997] HCA 28; 191 CLR 204
Troughton v McIntosh was considered by Gummow J, McHugh J and Kirby J in Mann v O'Neill. Mann v O'Neill involved a defamation claim brought by a special magistrate of the Australian Capital Territory against the defendant (Dr Mann) who had been an unsuccessful litigant in proceedings heard by special magistrate O'Neill. There were no procedures in place within the jurisdiction of the Australian Capital Territory for the making of formal complaints against judicial officers: cf Judicial Officers Act 1986. Dr Mann wrote to two government ministers questioning special magistrate O'Neill's mental fitness and suggesting that he be suspended until his capacity to sit was examined. A copy of one of the letters was forwarded to the Chief Magistrate. In his defence to the magistrate's defamation claim, Dr Mann pleaded that the matters complained of were published on occasions of absolute privilege.
The High Court, by majority, held that the publication was not made on an occasion of absolute privilege, but was published on an occasion of qualified privilege. The plurality (Brennan CJ, Dawson, Toohey and Gaudron JJ) did not refer to Troughton v McIntosh or otherwise question whether special magistrate O'Neill was entitled to bring defamation proceedings. Gummow J and Kirby J, each in a separate judgment, agreed with the plurality. McHugh J dissented, holding that the publication occurred on an occasion of absolute privilege.
One of the bases advanced by Dr Mann in support of his defence of absolute privilege was by way of analogy with the immunity from suit that attaches to statements made in the course of legal proceedings, for example, in a pleading. Dr Mann argued that his complaints to the government ministers and Chief Magistrate should be regarded no differently than if he had appealed the special magistrate's decision. Had the same allegations been made in grounds of appeal, they would have rendered Dr Mann immune from suit at the instance of the magistrate. He also contended that his complaint should be viewed as initiating documents for the removal of Mr O'Neill from office and thus be treated as a quasi-judicial proceedings to which immunity would attach. It was in the context of that argument that Gummow J considered Troughton v McIntosh.
Having referred, inter alia, to the observations of Stephen J set out above, Gummow J observed, at 245, that the importance of "[maintaining] public confidence in the administration of justice", on the one hand, had to be "weighed against the encouragement, by the existence of an absolute immunity, of the publication of malicious falsehoods". His Honour observed that a freedom to publish malicious falsehoods did not assist in the provision of "access to independent courts for the impartial quelling of controversies, without fear of the consequences". His Honour concluded that the balance had been struck by the common law in confining the immunity conferred by absolute privilege to conduct occurring during and as part of the judicial proceedings in which the party was involved. His Honour, at 248-249, continued:
"It is not merely a question of giving weight to the need to protect the reputation of a citizen against false and malicious defamatory statements ... This case involves the investigation of one branch of government by another. There is the risk of damage to the institution and integrity of the judicial branch of government where malicious complaints are made to another branch of government, that branch itself being, directly or indirectly, a party to a deal of litigation."
Gummow J concluded that the communications were not published by Dr Mann during the course of and as part of the judicial proceedings in which he had been involved. Accordingly, he held that the absolute immunity that attaches to statements made in court did not extend to the steps taken by Dr Mann outside the proceedings. As his Honour observed, at 245:
"That immunity responds to the considerations identified earlier in these reasons. One of these is the avoidance of reagitation by discontented parties of decided cases after the entry of final judgment, other than by the means afforded within the structure of the judicial branch of government. Accordingly, the steps of which Mr O'Neill complains did not involve words relevantly 'spoken in office' by Dr Mann and as part of a judicial proceeding."
His Honour, at 249, also considered it relevant that there was available to Dr Mann another protection in the form of qualified privilege.
Kirby J, in his consideration of Troughton v McIntosh, first noted, at 251, that Stephen and Cohen JJ had determined the matter on the basis that the defamatory utterances in that case had occurred "in effect, in the sight and hearing of the court and was thus punishable ... as a contempt of the court". His Honour then made particular reference to the dissenting judgment of Simpson J in Troughton v McIntosh. He first noted Simpson J's reference to the authorities where judicial officers had brought proceedings and recovered damages for defamatory imputations of corruption or partiality in their role as judicial officers. Kirby J next noted that it had not been contended, nor did Simpson J consider it could be contended, that if the defamatory utterances had been spoken out of court, an action could not be maintained. Kirby J concluded on this point, at 252:
"If it is authority for any proposition, Troughton stands for the rule that a judicial officer who should properly have initiated proceedings against a litigant for contempt of court cannot elect instead to proceed in a private suit for damages for defamation. That rule has no application to this case. In any event, the increased use of the contempt power to vindicate an affront to a judicial officer in open court runs contrary to the trend of recent authority in Australia. That trend should not be reversed by promoting punishment for contempt as an alternative to civil redress."
Kirby J, at 271 ff, also referred to the policy considerations relevant to the question whether absolute immunity should be accorded to the publications. His Honour recognised the wisdom in the view expressed in Troughton v McIntosh as to the undesirability of a judicial officer bringing defamation proceedings, but observed that judicial officers are citizens and are not outside the protection of the law. In particular, his Honour considered that a court should only deprive an individual of civic rights, including a person's right to protect his or her reputation, where there is clear authority of law to do so. His Honour considered that such a right should only be abrogated by Parliament.
McHugh J, in his dissenting judgment, concluded that absolute privilege should be accorded to a complaint made by a litigant in respect of the performance of a judicial officer before whom the litigant had appeared. His Honour, at 229, considered that the defence of qualified privilege was not adequate to ensure that an action brought by a judicial officer against such litigant was "terminated from the outset", so as to maintain the respect necessary for the effective functioning of the administration of justice.
McHugh J, at 233 ff, then considered Troughton v McIntosh. McHugh J, at 234, noted that Stephen J, at 338, in dealing with the submission that the police magistrate could vindicate his position both by way of contempt proceedings and a personal action, denied that a "dual remedy" was available to the magistrate. Rather, Stephen J considered that the proper remedy was in respect of a magistrate's judicial capacity alone and that "the personal wrong is ... absorbed in the offence against the public". McHugh J also noted that Stephen J considered that the decision was no different even if the magistrate did not exercise his contempt powers and that the magistrate simply did not have the option of vindicating the authority of the Court or of asking for reparation to the injury to his personal character.
McHugh J, at 235-236, next referred to the comments of Cohen J that there was a scarcity of cases in which judges of superior courts had sued for defamation for comments made relating to their judicial performance. McHugh J noted that this had caused Cohen J to observe that it was preferable that judges of inferior courts exercise the same restraint, even for defamatory utterances made outside the Court. McHugh J observed that Simpson J, although in dissent in Troughton v McIntosh, had cautioned a similar restraint.
The further observations of his Honour, at 236, although made in the context of 'absolute privilege', are relevant to note, as they indicate a countervailing policy approach to that taken by Gummow J:
"The effective functioning of the administration of justice requires that the respect in which courts are held should not be diminished. But where it is necessary to deal with a person who scurrilously abuses a judicial officer, that should be one by enforcing the public law of contempt or scandalising the court, not by a private action for damages. Moreover, actions by judicial officers against former litigants for comments relating to judicial performance are not only unseemly, in my view, they are calculated to impair confidence in the impartiality of the courts. They are calculated to create a public perception that judicial officers will quash dissent from their rulings by using the law of defamation against those litigants who call their conduct or capacity into question. A defence of absolute immunity ensures that such actions are terminated from the outset."
Consideration
The plaintiff submitted that the decision in Troughton v McIntosh was not authority for the proposition for which the defendants contended, namely, that she was debarred from bringing defamation proceedings against them. The plaintiff contended that the defendants' argument that she was debarred from bringing defamation proceedings had to be considered in the following context: the matters complained of were published to the public at large; the matters complained of made no reference to any court proceeding involving the plaintiff or to which either party was a defendant; and the defendants were not parties to any of the decisions sought to be impugned. The plaintiff further submitted that she had never contended that the defendants were not entitled to seek to justify the imputations. Rather, her contention was that in seeking to justify the imputations, the defendant could not engage in an attempt to prove the truth of the imputations in a way that involved re-litigation of the impugned decisions.
In my opinion, the plaintiff is not debarred from bringing these defamation proceedings by any principle stated in Troughton v McIntosh. The ratio in Troughton v McIntosh was that a judicial officer does not have a personal right of action in respect of words spoken in Court. Should defamatory utterances be spoken in Court, they are protected by the immunity against suit that is enjoyed by litigants, witnesses, legal representatives and judges alike. To the extent that comments made by Stephen J were to the effect that there was no personal right of action at all, those comments were obiter and they should be read as relating to comments made in the context of the particular legal proceedings themselves. And, notwithstanding the views expressed in Troughton v McIntosh as to the inappropriateness of a judicial officer bringing such proceedings, even in respect of defamatory utterances made out of court, those views were obiter and did not purport to be statements of legal principle.
In my opinion, the decision in Mann v O'Neill does not support any such principle. Indeed, that case supports the contrary proposition. The Court's determination that the defamatory publications of Dr Mann, made out of court, were not protected by absolute privilege involved a recognition by the Court that such a cause of action was available to the magistrate.
To the extent that Troughton v McIntosh was the subject of consideration in Mann v O'Neill, the analysis of Gummow J, in particular, supports the availability of a private right of action to a judicial officer for defamatory comments made out of court. As his Honour observed, the law had struck the appropriate balance between malicious statements which were actionable and the maintenance of respect for the administration of justice by limiting absolute immunity to comments made in court.
In any event, the decision in Troughton v McIntosh is distinguishable. In that case, the defamatory comments were made by a party in court who had been a litigant before the magistrate. The defamatory comments were made in relation to the manner in which the magistrate had dealt with the litigant's matters. The same may be said of Mann v O'Neill. Dr Mann had been a litigant before the magistrate. His complaints, which contained defamatory utterances, were complaints relating to the magistrate's mental competence, that Dr Mann contended had been exhibited in the course of the proceedings, in which he had been a party.
This case is different. The alleged defamations were made in public radio broadcasts in circumstances where there was no connection between the plaintiff and the defendants. Neither defendant had been a party to any proceeding before the plaintiff. Rather, the alleged defamatory utterances were made generally in respect of the plaintiff's conduct as a judicial officer. In this latter respect, the plaintiff pointed out that the attack was not an attack on the institutional integrity of the magistracy or the judicial system. It was a direct, personal attack on the plaintiff for allegedly making wrong and diabolically bad decisions. The attack was made, except for one decision, many years after the plaintiff had determined the matters. In those circumstances, the plaintiff is not in a position to vindicate the authority and integrity of the court, including her authority and integrity as a judicial officer, by bringing the defendants before her for contempt. Further, for my part, I consider that it is a virtual certainty that the Attorney General will not bring contempt proceedings. As Kirby J remarked in Mann v O'Neil, that is no longer the trend.
There may be a real question, in any event, as to whether the comments would constitute a contempt of court. No submissions were directed to this question and it would be inappropriate to pursue it without there being any argument on the issue. The consequence, however, in my opinion, is that if the plaintiff is disentitled to seek to protect her reputation by defamation proceedings, there will be an imbalance between those rights and the ability of a defendant to publish material, no matter how defamatory, without any "appropriate control" of that ability as is presently recognised by the law of defamation. The proper policy balance, in my opinion, is in recognising the plaintiff's entitlement to bring the defamation proceedings.
The availability of personal actions for defamatory comments made out of court in respect of a judicial officers has been recognised in other cases, including proceedings brought by this plaintiff: John Fairfax Publications v O'Shane [2005] NSWCA 164; Aust Torts Rep ¶81-789. The defamation subject of the proceedings in that case related to out of court statements directed at various decisions of the plaintiff. In that case, Giles JA (Ipp JA agreeing), at [98], observed:
"... the appellant put a submission to the effect that defamatory comments about judicial officers were not uncommon, they were nowadays generally tolerated if falling short of contempt, and therefore judicial officers should be unable to sue for defamation short of contemptuous defamation. That tolerance is generally shown is not a reason to create a defence whereby judicial officers are less able to sue for defamation than other members of the community, including politicians who have the benefit of reasonableness under the Lange privilege. Judicial officers have reputations, like all persons, to protect and vindicate if they wish. Further, a limitation by the law of contempt would be erroneous. The law of defamation protects an individual's reputation. The law of contempt serves the different purpose of protecting the judicial institution (see for example R v Dunbabin; ex parte Williams (1935) 53 CLR 434 at 442)."
In The Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; 9 VR 1, defamatory comments were made in a newspaper in respect of a magistrate's determination of a particular case, including that she had pre-judged the matter. The plaintiff was successful before a jury and on appeal retained her verdict and the damages she had been awarded, save for the award of exemplary damages.
The defendants, after some equivocation, did not submit that these two decisions were plainly wrong. This was in relation to the constitutional issue. They should be followed by this Court. In any event, I have concluded, independently of these decisions, that the plaintiff is entitled to prosecute her defamation proceedings.
Question A: are the defendants precluded by the principle of judicial immunity from pleading their defence of truth?
The question originally raised by the plaintiff's strike out motion was whether judicial immunity could be used as a sword so as to prevent the defendants from raising their defence of truth. Having regard to the forensic positions taken during the course of the hearing of the referred questions, the focus of the debate became whether any of the decisions particularised in support of the defence of truth could be re-agitated and whether the defendants could prove the truth of the imputations in the manner they proposed. Put another way, the question essentially became whether the principle of finality precludes the agitation of the defence of truth and, if so, to what extent.
The principle of judicial immunity is of ancient origin, extending from the time of Lord Coke. In R v Skinner (1772) 98 ER 529, Lord Mansfield, at 530, stated the principle in terms that "neither party, witness, counsel, jury or Judge can be put to answer, civilly or criminally, for words spoken in office". The principle was applied in Scott v Stansfield (1867-68) LR 3 Ex 220, which involved an action for slander brought by a disgruntled litigant against a county court judge. Kelly CB referred, at 223, to the general proposition that "no action will lie against a judge for any acts done or words spoken in his judicial capacity in a court of justice".
The immunity has continued to be recognised. In Sirros v Moore [1975] QB 118, Denning MR, at 132, observed:
"Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him."
The underpinning of judicial immunity as an aspect of the tenet of finality of litigation was discussed by the High Court in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1. The plurality in D'Orta-Ekenaike (Gleeson CJ, Gummow, Hayne and Heydon JJ) stated, at [34]:
"A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding." (citations omitted)
Their Honours observed, at [35], that the appellate system was the principal exception to this principle, but even there, the principle of finality "[pervaded] the law". Their Honours gave, by way of example, the various restrictions that applied to appeals; for example, in respect of fresh evidence and the raising of raising of new points on an appeal. Their Honours then continued, at [36]:
"The rules based on the need for finality of judicial determination are not confined to rules like those mentioned above. Those are rules which operate between the parties to a proceeding that has been determined. Other rules of law, which affect persons other than the parties to the original proceeding, also find their justification in considerations of the need for finality in judicial decisions. And some of those rules are rules of immunity from suit." (emphasis added)
After referring to the immunity that protects a witness, the plurality referred, at [40], to judicial immunity:
"The development of judicial immunity was more complex. It was bound up with the development of the law relating to excess of jurisdiction, and thus with the development of the principles governing when a judicial decision was open to collateral attack. Its history has been traced by Holdsworth. It is not necessary to examine that history in any detail, beyond noticing that the decisions of courts of record were conclusive, but those of inferior courts were open to collateral attack alleging excess of jurisdiction. Hence, while action might lie at common law for acts done in an inferior court in excess of jurisdiction, the decisions of supreme courts were final. And there was an immunity from suit for any judicial act done within jurisdiction . What is important to notice for present purposes is not the history of development of this immunity, but that both judicial immunity and the immunity of witnesses were, and are, ultimately, although not solely, founded in considerations of the finality of judgments." (emphasis added; citations omitted)
Judicial immunity was again the subject of consideration by the High Court in Fingleton v The Queen [2005] HCA 34; 227 CLR 166. That case involved the prosecution and conviction of a magistrate for unlawful retaliation against a witness. The allegedly criminal conduct arose out of certain administrative conduct in which the magistrate had engaged. The Queensland Criminal Code contained a provision whereby a judicial officer was not criminally responsible for anything done or omitted to be done in the exercise of the officer's judicial functions. A judicial officer was defined to include a magistrate. Pursuant to the statute, administrative conduct had the same protection as a magistrate's judicial conduct. Gleeson CJ at [36], cited the well known passage of Denning LJ in Sirros v Moore set out above, noting that discussion of the immunity mostly involved cases where a civil claim was brought against a judicial officer by an aggrieved litigant. Gleeson CJ, at [37], also referred to the observation of Lord Bridge of Harwich in In Re McC (A Minor) [1985] AC 528 at 540 that no action will lie in common law against a "judge of a court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith".
Gleeson CJ observed, at [38], that the immunity was conferred at common law, "not as a perquisite of judicial office for the private advantage of judges but for the protection of judicial independence in the public interest". His Honour concluded, at [39]:
"This does not mean that judges are unaccountable. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions routinely are subject to appellate review, which also is conducted openly. The ultimate sanction for judicial misconduct is removal from office upon an address of Parliament. However, the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions."
In Forge v ASIC [2006] HCA 44; 228 CLR 45, Gummow, Hayne and Crennan, at [75], referred to the interdependence of questions of judicial independence, judicial immunity and the principle of finality, as follows:
"... a comprehensive statement of principles supporting judicial independence would have to take account of the principles governing the immunity of judges from suit for judicial acts. While it is not necessary to consider the detail of those rules, it will be recalled that different rules developed in respect of courts of record from those applying to inferior courts and that the development of the law relating to judicial immunity was bound up with the law relating to excess of jurisdiction and when a judicial decision was open to collateral attack. That a judge is immune from suit serves a number of purposes, not least the need for finality of judicial decisions. But it is also a principle which forecloses the assertion that the prospect of suit may have had some conscious or unconscious effect on the decision-making process or its outcome."
The question of judicial immunity has also been considered by this Court, inter alia, in the decision of Wentworth v Wentworth [2000] NSWCA 350; 52 NSWLR 602, which predated the decisions of the High Court discussed above. Nonetheless, the observation of Heydon JA (with whom Davies AJA agreed), at [260], is relevant.
"The old cases turned not so much on the protection of the judiciary from claims which might ultimately fail or succeed, but from any claim. They recognised a freedom from 'continual calumniations' (Floyd v Barker (1607) 12 Co Rep 23 at 25; 77 ER 1305 at 1307) and 'from action and question at the suit of an individual' (Garnett v Ferrand (1827) 6 B & C 611 at 625; 108 ER 576 at 581). The rule was established 'to secure the independence of the Judges, and prevent their being harassed by vexatious actions' (Fray v Blackburn (1863) 3 B & S 576 at 578; 122 ER 217 at 217). The importance of the judicial immunity as recognised in the older cases lies in its absolute and non-qualified character - its capacity to be pleaded in bar to suits at the outset, so as to secure their dismissal at that point, rather than permitting the allegations to be tried." (emphasis added)
Consideration
This review of the authorities, albeit a less than full excursus of the caselaw, nonetheless sufficiently covers the essential aspects of the immunity and enables the following observations to be made.
First, judicial immunity cannot be used offensively in the manner for which the plaintiff originally contended. In the various statements and endorsement of the principle of judicial immunity dating from the seventeenth century, it has never been conceived as an offensive tool available to a judicial officer. That this is so is clear from the observation of Gleeson CJ in Fingleton that the purpose of the immunity is the protection of judicial independence; from the statements in Sirros and In re McC (A Minor) and, in particular, the comment of Lord Harwich in the latter case that "it is the law [of England] that" no such suit, brought by a litigant for matters occurring in court, will lie. There is also the observation of the plurality in Forge that "a judge is immune from suit"; and the observations of Heydon JA in Wentworth v Wentworth to the effect that the immunity operates as a plea in bar to a suit. It follows, in my opinion, that the immunity does not enable a judicial officer, or former judicial officer, in private proceedings, to prevent a defendant from pleading a defence that raises matters that were said or done in the course of the plaintiff's judicial office.
Secondly, whilst recognising that judicial immunity is, in part, founded upon considerations of finality, that underpinning is insufficient to justify the use of judicial immunity as a sword. To permit the plaintiff to so use the immunity would distort the law of defamation because the defendants would be precluded from asserting their statutory defence of truth and the plaintiff could conceivably recover damages for an imputation that was perfectly true.
In Wright v Lewis (1990) 53 SASR 416 King CJ observed, at 421-422, in relation to Parliamentary privilege:
"It must be observed at the outset that if the view argued for by counsel for the Attorney-General and the plaintiff is correct, the result is remarkable. A Member of Parliament could sue for defamation in respect of criticism of his statements or conduct in the Parliament. The defendant would be precluded, however, from alleging and proving that what was said by way of criticism was true. This would amount to a gross distortion of the law of defamation in its application to such a situation. Defamation in law is by definition an untrue imputation against the reputation of another: Gatley on Libel and Slander (8th ed, 1981), p 4; J F Clerk and W H B Lindsell, The Law of Torts (14th ed), p 945; J G Fleming, The Law of Torts (7th ed, 1987), p 527. If the defendant were precluded from proving the truth of what is alleged, the Member of Parliament would be enabled to recover damages, if no other defence applied, for an imputation which was perfectly true." (original emphasis)
See also Prebble v Television New Zealand (1995) 1 AC 321 at 337-339. In my opinion, these remarks apply to proceedings brought by a judicial officer in the judicial officer's personal capacity.
Before concluding this issue, I should mention one further matter. The plaintiff contended that the principle of judicial immunity applied to her by virtue both of the common law and the Judicial Officers Act, s 44B. A magistrate is a "judicial officer" pursuant to s 3 of the Act. Section 44B provides, relevantly:
"Immunity of certain judicial officers
(1) A judicial officer has, in the performance of his or her duties as a judicial officer (including ministerial duties), the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge.
It was not in contention that, pursuant to this provision, the principle of judicial immunity applied to a judicial officer who was a magistrate. However, s 44B was introduced in 2003, whereas a number of the decisions particularised by the defendant preceded that date. That raised the question whether a magistrate was entitled to judicial immunity in respect of conduct in court prior to the introduction of s 44B. The concern was raised by the Court and was directed principally to the historical position of magistrates as members of the public service.
Any such concern as expressed by the Court may be dispelled. In the first place, a magistrate has not been subject to the legislation governing the Public Service since the introduction of the Local Court Act 1982. In any event, there can be no argument that magistrates, in the performance of their office, perform judicial functions. It is the protection of judicial officers in the exercise of their judicial function to which the immunity attaches.
This was made explicit in Sirros v Moore [1975] QB 118 to which I have already referred, Denning MR noting, at 132, that the principle applied to "judges of all ranks high or low". Denning MR, at 136, also considered that having regard to the modern day jurisdiction of judicial officers in inferior courts, there was no warrant for maintaining the distinction previously made between decisions within and decisions outside of jurisdiction in respect of the immunity in relation to such judicial officers.
Ormrod LJ agreed, stating at 149:
"I, therefore, agree with Lord Denning M.R. that it is impossible to maintain double standards in so important a matter as a personal liability of judges, and that, accordingly, the old rules should be modified by giving judges of inferior courts (including magistrates) enhanced protection. In my judgment the second formulation suggested, only to be rejected, by Parke B. in Calder v. Halket, 3 Moo. P.C. 28, 74 should now be adopted, namely, a judge should be protected '... where he gives judgment, or makes an order, in the bona fide exercise of his office, and under the belief of his having jurisdiction, though he may not have any.' With a fully developed appellate structure, supplemented by habeas corpus and the other prerogative writs, and made accessible to all, or nearly all, by the legal aid scheme, there is no longer any necessity to preserve, in its old form, the remedy by way of personal actions against judges."
Further, the High Court has recognised that the immunity applies to magistrates. In Re East; Ex parte Nguyen [1998] HCA 73; 196 CLR 354, the High Court dismissed an application for certiorari and declaratory relief on the basis that the magistrate who had convicted and sentenced the applicant for armed robbery was protected by reason of immunity from suit from any legal redress on the basis of a contravention of the Racial Discrimination Act 1975 (Cth). The Court stated, at 365-366, that the immunity was absolute when judicial officers acted "in the exercise of their judicial function or capacity".
Finally, there is no doubt that judicial immunity is a principle of the common law. This is apparent from the history of the immunity as it has been traced in the authorities: see in this regard Wentworth v Wentworth especially at [20]-[59] and Scanlon v Director-General, Department of the Arts, Sport & Recreation [2007] NSWCA 204; 70 NSWLR 1, at [52] and [58] ff.
It should be noted that in Scanlon v Director-General, at [63], Tobias JA (as his Honour then was) stated that until the conferral upon magistrates of the immunity of superior court judges, the immunity was not available to magistrates. I agreed with his Honour's remarks, as did Mason P. His Honour's remarks were obiter and made in the context of the historical position of a magistrate as a member of the public service, and as such, subject to the disciplinary processes of the public service. I did not understand his Honour to intend to say anything more than that a magistrate was not immune from those processes until the legislation was changed. If his Honour's remarks extended beyond that so as to state that a magistrate was only entitled to the immunity in the performance of their judicial functions as and from the introduction of the Judicial Officers Act, s 44B, they would not be correct, and my agreement with such a statement would likewise be incorrect. As I have said, the immunity is a protection afforded by the common law to judicial officers performing judicial functions.
I am of the opinion that the plaintiff is not entitled to rely upon the immunity of a judicial officer in the performance of her judicial functions to preclude the defendants from pleading their defence of truth by reference to the particularised decisions. That is not to say, however, that there are not other questions which will arise in relation to proof of that defence. However, those questions do not arise in respect of Question A.
These considerations demonstrate that (a) a judicial officer has, at best, a derivative private interest in seeking to vindicate his or her conduct or capacity in judicial office from defamatory comment; (b) the public or governmental interests (including those in the finality of litigation) are protected by the law of contempt, and (c) the interests of the judicial officer are otherwise safeguarded, even against government interference, by constitutional protections. These factors do not render the issues involved in a putative defamation suit by a judicial officer non-justiciable; rather they constitute policy reasons, based on the coherence of fundamental constitutional arrangements, which preclude the existence of a cause of action in tort at the suit of a judicial officer with respect to statements relating to his or her conduct or capacity as a judicial officer in carrying out judicial functions.
There is a further consideration supportive of that conclusion. It is that although suits by judicial officers have been rare in the past, to permit such suits on occasion may give rise to an expectation that, if public criticisms (which are frequently directed against judicial officers) are without substance, public denials will be made and, if necessary, proceedings in defamation will be brought. That could see judges as regular litigants in their own courts, with deleterious consequences for public confidence in the impartial and independent administration of justice. The consequential effects on the administration of justice of preferring the private interests of judicial officers over the broader public interests would be a source of serious concern.
(7) Implied constitutional freedom of communication
In her judgment of 22 June 2012, explaining the purposes of the stated questions, McCallum J noted that a Full Court of the South Australian Supreme Court had granted a permanent stay of defamation proceedings in circumstances where the defendant was unable, because of parliamentary privilege, to defend the truth of the imputations: Rann v Olsen [2000] SASC 83; 76 SASR 450 (Doyle CJ, Prior, Perry, Mullighan and Lander JJ). As explained by Doyle CJ at [38] the case in favour of the stay rested upon a passage in the advice of the Privy Council in Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 338:
"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 ... 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."
The question for present purposes is whether the inroad into freedom of speech which would result in the present case, were the defendants to be prevented from establishing substantial truth, would contravene the implied constitutional freedom with respect to political speech.
Because there is no reason to strike out paragraph 10 of the defence, the constitutional question does not arise. As noted in John Fairfax v O'Shane at [84]:
"Whether the Lange privilege extends to discussion of the conduct of judicial officers generally, as distinct from so far as there might be government action for removal of the judicial officer from office, has since been considered or referred to in a number of cases: see Popovic v The Herald and Weekly Times Ltd [2002] VSC 174 (Bongiorno J); The Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1 (CA); Carleton v Australian Broadcasting Corporation; Conservation Council of South Australia Inc v Chapman (2003) 87 SASR 62; Hoser v The Queen [2003] VSCA 194."
In Sunol v Collier (No 2) [2012] NSWCA 44; 260 FLR 414 at [75], following the judgment of the High Court in Wotton v State of Queensland [2012] HCA 2; 246 CLR 1, I said:
"The authorities establish that where a challenge is raised to the constitutional validity of a law which may have the effect of burdening communications in relation to political or governmental matters (political discourse) a court should undertake a staged approach in the following manner:
(a) construe the impugned law;
(b) determine whether, properly construed, it effectively burdens political discourse;
(c) if so, determine whether it is nevertheless reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the system of representative and responsible government prescribed by the Constitution, and
(d) if it fails the foregoing test, whether it can be severed or read down in a manner which preserves validity of the law in part."
To the extent that the impugned law is the Defamation Act 2005 (NSW), in Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; 182 CLR 104, the High Court accepted that the law of defamation could, in respect of political communications, impinge upon the implied constitutional freedom of communication. Accordingly, a publication would not be actionable if the defendant established a number of conditions relating to truth or falsity and reasonableness. Such defences were available under the common law. The precise nature of those defences was further considered in Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520. The Court concluded at 575:
"In so far as the Amended Defence in the present case rests on the claim that the defamatory matter was published pursuant to a freedom guaranteed by the Constitution of the Commonwealth, the defence fails. For the reasons that we have given, the Constitution itself confers no private right of defence and the New South Wales law of defamation action places no undue burden on the freedom of communication required by the Constitution. In so far as the Amended Defence relies on the common law of qualified privilege to defend the publication, different considerations apply."
In the present case, question D appeared to be posited on the assumption that the principle of judicial immunity prevents an inquiry into the truth of the imputations. It further assumed that such a defence is an essential element of a constitutionally acceptable burden on freedom of communication in respect of a political matter. Because the assumptions are not established, the case provides an inappropriate vehicle for considering constitutional issues which may have ramifications beyond this case. It is therefore inappropriate to pursue the matter further.
(8) Conclusions
In these circumstances questions A-D should each be answered, "The question does not require an answer".
The terms of question E, referring to "the principle identified in Troughton v McIntosh", do not permit a simple answer which would reflect the reasoning set out above. However, the submissions of the parties were not so limited. Thus, the defendant's submissions in reply dated 17 December 2012 contended that the reasoning in Troughton should be extended beyond the situation "where a judicial officer seeks a private remedy for a contempt in the face of the court": par 1. The submissions relied on "persuasive policy arguments in favour of a bar extending to out of court statements": at par 2. The submissions further adopted the reasoning of McHugh J in Mann v O'Neill, "expressing the view that the Magistrate was not entitled to sue": p 3. Although aspects of the argument set out above were not fully developed, the basic principles were addressed. Accordingly, a substantive answer should be given to question E, reflecting the conclusion reached above.
Question E should be answered:
"Because the matter complained of and each of the pleaded imputations relate to the conduct, competence and capacity of the plaintiff in carrying out her functions as a judicial officer, she has no cause of action against the defendants in defamation. The proceedings should be dismissed."
No party having adopted a clear and consistent approach to the answers sought in this Court, there should be no order as to the costs of the proceedings in this Court. The matter may be remitted to the Common Law Division for final orders in accordance with the answer given to question E.
TOBIAS AJA: I have had the benefit of reading in draft the separate judgments of the President and Basten JA. For the reasons which follow, I am of the opinion that the referred questions should be answered in the manner proposed by the President for the reasons she has expressed. I agree with the order for costs proposed by both her Honour and Basten JA.
As I read the draft reasons of Basten JA, were it not for his answer to Question E, he would have answered Questions A to C in the manner proposed by the President. However, his answer to Question E foreclosed the necessity to answer those questions.
It is therefore necessary that I shortly address Basten JA's conclusion that the plaintiff in the present case has no cause of action in defamation against the defendants. Question E as framed, required an answer based upon the principle (whatever it might be) identified in Troughton v McIntosh. In this respect, as I understand their respective reasons, both the President and Basten JA are of the view, with which I agree, that the decision in Troughton has no application to the present case. The President therefore answered Question E in the negative whereas Basten JA has taken a broader view based on policy considerations which in my respectful opinion have a far reaching effect. In this respect, the critical part of his Honour's reasoning is to be found at [224]-[232] of his judgment.
Essentially, Basten JA has come to the same conclusion as McHugh J in Mann v O'Neill at 235 although for different reasons. As his Honour noted, McHugh J was in dissent because he concluded (at 236) that Dr Mann's defamatory remarks were protected by the defence of absolute privilege. This was not a view that was attractive to the other members of the Court who considered that Dr Mann was entitled only to the defence of qualified privilege. However, there is no doubt that McHugh J held that not only the defence of absolute privilege but also the very nature of the judicial office, denied to Mr O'Neill any action for defamation against Dr Mann. This conclusion of his Honour is reflected in the answer of Basten JA to Question E.
However Basten JA (at [225]) was not prepared to adopt the assertion by McHugh J that from the time of their appointment all judicial officers are or ought to be irrebuttably presumed to be personally immune from the effects of criticism of their judicial performance. Rather, there were other values at work, both private and public, that might lead to the same outcome.
His Honour then identifies four public interests relevant to the issue under discussion. The first is the abuse of process which is potentially present in allowing a collateral attack on the decisions of judicial officers. The second is that which underlies the principle of judicial immunity - in particular, judicial independence. The third is the principle underlying contempt for scandalising the court and which involves the bringing of the administration of justice into disrepute. The fourth is the public interest in determining the truth or otherwise of allegations of misconduct by judicial officers which, his Honour states (at [229]) may directly conflict with the private interest of the individual officer to clear his or her name.
I do not stay to comment upon each of these interests which undoubtedly exist except to observe that, of themselves, they are not, in my respectful view, necessarily inconsistent with a judicial officer having in an appropriate case, a cause of action in tort for defamation even where the matter complained of relates to the conduct of that officer in performing his or her judicial functions.
His Honour then refers (at [230]) to the private interests of the judicial officer concerned, noting that they do not equate with those of ordinary citizens with respect to their professional reputations due to the protections afforded such an officer which are reflected in their security of tenure, their protection from suit due to the principle of judicial immunity and the constitutional restriction on their removal from office.
Basten JA then brings these various factors together at [231] of his reasons where he opines that although they do not render the issues involved in a putative defamation suit by a judicial officer non-justiciable, they constitute policy reasons which preclude the existence of a cause of action in tort of the suit of a judicial officer with respect to statements relating to his or her conduct or capacity as such an officer in carrying out his or her judicial functions.
Finally, at [232], having noted that suits in defamation by judicial officers have been rare in the past, his Honour concludes that to even permit such suits even on a rare occasion is likely to see judges as regular litigants in their own courts with deleterious consequences for public confidence in the impartial and independent administration of justice.
With respect to this last mentioned matter, there is no doubt that judges are frequently the subject of public criticism, especially in the media and particularly involving issues of sentencing of criminals in high profile cases, or at least those of a sufficient profile to attract media interest. However, if his Honour is referring to the "floodgates" principle, then with great respect I cannot agree that it has any part to play in the present discussion. This is borne out by the fact that judges are criticised on a regular basis in relation to their decisions, particularly on sentencing. Yet such criticism has not spawned a flood of defamation actions by those criticised. Of course, it must be accepted that not every media criticism of a sentencing judge's decision is defamatory, although from time to time comments on the sentencing decisions of particular judges in particular matters by radio "shock jocks" are capable of falling into that category. However, that has not produced any litigious reaction on the part of the maligned judges. As Kirby J observed in Mann at 271, judicial officers are often subjected to uninformed, erroneous and even malicious criticism which they are required to, and do, tolerate and, I would add, without retaliating by way of a defamation suit.
Those who wish to complain about a judge's performance of their judicial functions may, generally, do so in two ways. The first is by making a complaint to the Judicial Commission of New South Wales pursuant to s 15 of the Judicial Officers Act 1986. Such a complaint, even if defamatory in its terms, if otherwise made in accordance with the statute, attracts absolute privilege. The second, leaving aside defamatory comments made by a litigant in court which are similarly protected, is where an aggrieved litigant or third party defames a judicial officer with respect to their performance of their judicial function on an occasion which does not, as in the present case, attract either absolute or qualified privilege. According to Basten JA, the judicial officer has no personal remedy in such a case.
With great respect, the difficulty I have with his Honour's approach to this issue is that it is currently contrary both to experience and to authority, such as it is. Apart from Troughton, there appears to be no authority either in Australia or in the United Kingdom which goes as far as Basten JA has in the present case. It would be fair to say that those that have dealt with this issue have all accepted that, in an appropriate case, a judicial officer who is defamed in the media or by a third party has never been denied the right to bring a defamation action in order to vindicate their good name and professional reputation.
Both the President and Basten JA have analysed the judgments in Troughton in some detail which it is unnecessary to repeat and with which I agree. However, relevant to the present discussion is the observation of Gummow J in Mann at 244 that Stephen J based his decision in Troughton that Mr McIntosh’s action for defamation was not maintainable, on a broader basis than had Cohen J who formed the other half of the majority in that case. His Honour supported this observation by citing the passage from Stephen J's judgment reproduced by the President at [46] of her reasons in the present matter. The content of that passage reflects, to some degree, the policy considerations which prompted McHugh J in Mann to express a similar conclusion in the passage from his judgment reproduced by the President at [60] of her reasons.
However, it is apparent from a consideration of Gummow J's remarks in Mann at 245, that his Honour was not prepared to deny, without exception, to a judicial officer the right to institute a defamation action in an appropriate case as had Stephen J and McHugh J. Neither was Kirby J.
At 269-271 Kirby J set out seven reasons of policy and principle which he considered could support the suggestion that the case at hand was one to be catalogued with the absolute immunity of disciplinary proceedings and with the protection accorded to the initiation of a quasi-judicial inquiry. Essentially what his Honour was doing was setting out policy reasons which might be regarded as supporting the proposition that Dr Mann was protected by absolute privilege or immunity given that he was making a complaint about Mr O'Neill to the relevant Minister. In the course of doing so, Kirby J stated as his sixth and seventh policy reason the following (at 271, omitting references to footnotes):
6. Judicial officers must, at least in modern circumstances in Australia, have broad shoulders. They must tolerate a high measure of public and private criticism, some of it (but not all) uninformed, erroneous and even malicious. For the most serious cases of wrongful attacks upon judicial officers the law of contempt remains in some circumstances. A judicial officer would not be entitled to bring an action for defamation if the same or similar complaints about suggested incapacity had been made in a notice of appeal.
7. The prospect of litigants being sued by judicial officers against whom a complaint is made is generally unseemly and undesirable. The hearing of such an action might be assigned to a court inferior to that in which the judicial officer sits. The complainant might be discouraged from pursuing proper complaints by a concern that the judicial officer will enjoy advantages within the legal system. In most cases, meritless or unproved complaints could safely be left to the recipient to dispose of, as was considered appropriate. In a small number of cases the complaint might be justified and, as such, would not otherwise come to the notice of those with the power to act for the protection of the public.
To a degree the policy reasons referred to in the above passages are indirectly reflected in Basten JA's reasoning on this issue. However, they were rejected by Kirby J who concluded that the common law did not accord absolute privilege to Dr Mann's complaint to the Minister about Mr O'Neill. His Honour then provided six reasons for coming to that conclusion of which the first two (at 272, omitting references to footnotes) are relevant to the present discussion. I acknowledge that a substantial portion of Kirby J's second reason is recorded by Basten JA at [45] of his reasons:
1. The accepted authority of this Court governing the approach to the problem before it is strongly unfavourable to the expansion of the categories enjoying absolute protection. The rule is not fashioned by judges for their own protection. It derives from the respect which our legal system accords to the civic rights of individuals, including the protection of their reputation. There is a high public interest in maintaining that protection grounded as it is in universal rights. Courts should only deprive an individual of fundamental civic rights (and particularly those recognised as universal human rights) where there is clear authority of law to do so. Such authority is absent in this case. The weight of authority requires, or strongly favours, a defence of qualified privilege and no more. Any expansion to a case such as this should be left to the Parliament.
2. Many of the considerations as to why action by a judicial officer may be undesirable (set out above) help to explain why an examination of the case books reveals that very few such actions have been brought. Few judicial officers would expose themselves to the perils and potential costs and indignities of litigation. Most would have sympathy for the attitudes of propriety expressed by the majority in Troughton v McIntosh. The problem, therefore, scarcely cries out for an exceptional solution. The considerations which persuade McHugh J to the opposite conclusion provide a reason why, at least in most cases, an action should not be brought by a judicial officer. They do not resolve the question of whether, by law, it may not be brought. Whilst judicial officers should ordinarily be expected to exhibit a high degree of tolerance of criticism and adverse comment, they are citizens too. They are subject to the law; but are not outside its protection, including for their good name. They should not be subjected, completely without redress, to false and malicious allegations which damage their reputation unless the law in a very narrow band of cases and for exceptionally strong reasons of history, policy or principle, puts them outside its protection. (emphasis added)
As I have indicated, the effect of McHugh J's judgment in Mann in which he held that Dr Mann's defamatory remarks were protected by absolute privilege was that no action lay by Mr O'Neill against Dr Mann for damages for defamation. However, it appears to me that his Honour was stating a more absolute principle whereby a judicial officer could not sue a former litigant for defamation in respect of comments relating to the conduct or capacity of that officer in performing his or her judicial functions. Of course, his Honour's remarks can be distinguished in the present case as the defendants were not former litigants before the plaintiff. Nevertheless, as I read McHugh J's observations at 235, there is little doubt that he intended them to apply generally irrespective of whether the judicial officer was being defamed by a former litigant or not.
However, in my view McHugh J's approach was specifically rejected by Kirby J and, at least by implication, by Gummow J in the passages from their Honour's judgments to which I have referred above. Importantly for present purposes is the observation of Kirby J in the last sentence of the paragraph numbered 1 which I have recorded at [259] above, namely, that any expansion of the categories enjoying absolute protection or privilege should be left to the Parliament or, I would add, at the very least the High Court. In my respectful view it is a step too far for this Court to take, based purely on one's perceptions of various policy considerations to, in effect, abolish any cause of action in defamation by a judicial officer against any person in any circumstances who impugns the conduct, competency and capacity of that officer in carrying out his or her functions as such.
For the foregoing reasons, I am unable to adopt the answer to Question E given by Basten JA and prefer the answer proposed by the President.
McCALLUM J: I have had the benefit of reading the judgment of Basten JA in draft. I agree with his Honour's answers to the stated questions, for the reasons given by his Honour. An issue may otherwise have arisen as to whether the conduct identified in imputation (c) is capable of sustaining the defamatory sting of that imputation but that would in any event have been a question for another day.
I have since also had the benefit of reading in draft the judgments of Beazley P, McColl JA and Tobias AJA. I remain in agreement with Basten JA. For the reasons explained by his Honour at [230], I do not think that the interest sought to be vindicated in this action can be equated with a private or civil interest. The functions of a court are not personal to the judicial officers who exercise the court's jurisdiction. Invoking the law of defamation to vindicate the reputation of an individual judicial officer overlooks the institutional source of the authority to act.
I agree with the orders as to costs proposed by Basten JA and Beazley P.
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Amendments
06 December 2013 - Corrections made to citations
Amended paragraphs: Coversheet, para [195]
05 September 2014 - Minor typographical errors corrected
Amended paragraphs: Coversheet, [99], [196], [203], [218], [230]
09 October 2015 - [256] - Reference to Mr O'Neill amended to Mr McIntosh
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