O'Shane v Harbour Radio Pty Ltd

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Court of Appeal
Supreme Court

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];
McColl JA at [131];
Basten JA at [159];
Tobias AJA at [243];
McCallum J at [263]

Decision: 

Answers to referred questions (at [127]-[128]):
 
Question A:
(i) No longer arises, but in any event, no.
(ii) No.
(iii) No longer arises.
 
Question B:
Does not arise.
 
Question C:
No.
 
Question D:
(i) No, but in any event does not arise given the answer to Question A.
(ii) Does not arise.
(iii) Does not arise.
 
Question E:
(i) No.
(ii) No.

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
 
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 defendants defence of truth constitutes an abuse of process as inconsistent with the principle of finality
 
TORTS - defamation - whether a judicial officer is barred from bringing defamation proceedings with respect to defamatory publications relating to criticism of the performance of a judicial officer's judicial function
 
CONSTITUTIONAL LAW - operation and effect of the Commonwealth Constitution - Uniform Civil Procedure Rules 2005, r 1.21 - questions referred to Court of Appeal - whether the principle of judicial immunity is consistent with the implied freedom of political communication - whether discussion about the discharge by a judicial officer of the judicial function in a particular case is a discussion concerning political or governmental matters
 
PROCEDURE - questions referred to Court of Appeal before trial - amendments to pleadings in appeal court - whether questions should be answered

Legislation Cited: 

Civil Procedure Act 2005, ss 100, 101
Constitution Act 1902, s 53
Contempt of Court Act 1981 (UK)
Crimes Act 1900, s 556A
Defamation Act 2005
Evidence Act 1995, ss 48, 91, 129, 135, 136
Felons (Civil Proceedings) Act 1981
Judicial Officers Act 1986, ss 3, 5, 15, 44B
Judiciary Act 1903 (Cth), s 78B
Local Court Act 1982
Uniform Civil Procedure Rules 2005, rr 1.21, 2.1, 14.28, 28.2
Vexatious Proceedings Act 2008, ss 8, 14

Cases Cited: 

APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44; 224 CLR 322
Attorney General v Blomfield (1914) 33 NZLR 545
Barakat v Goritsas (No 2) [2012] NSWCA 36
Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; 226 CLR 256
Brown v Rezitis [1970] HCA 56; 127 CLR 157
Conservation Council of SA Inc v…

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Details
Case
[2013] NSWCA 315
Decision Date

CaseChat Overview and Summary

This matter came before the Court of Appeal of New South Wales concerning questions referred by a trial judge concerning defamation proceedings. The plaintiff, a judicial officer, sued Harbour Radio Pty Ltd for defamation arising from publications that allegedly criticised her performance of her judicial function. The defendant sought to rely on the defence of truth.

The central legal issues before the Court of Appeal were whether the defence of truth was precluded by the principle of judicial immunity, and whether the defendant's reliance on this defence constituted an abuse of process by being inconsistent with the principle of finality. The Court was also asked to consider whether a judicial officer is barred from bringing defamation proceedings concerning criticism of their judicial function, and whether the principle of judicial immunity is consistent with the implied freedom of political communication under the Commonwealth Constitution, particularly when discussions relate to the discharge of a judicial officer's function in a particular case.

The Court of Appeal, referencing authorities such as *Forge v ASIC* and *Wentworth v Wentworth*, determined that the principle of judicial immunity is not intended to be used offensively by a judicial officer to prevent a defendant from pleading a defence in defamation proceedings. The purpose of judicial immunity, as established from the seventeenth century, is to protect judicial independence and ensure the finality of judicial decisions, not to shield judges from any claim or to allow them to use it as a tool to prevent the trial of allegations. The Court held that the immunity operates as a plea in bar to suits, securing their dismissal at the outset, rather than permitting the allegations to be tried. Therefore, the immunity does not enable a judicial officer to prevent a defendant from pleading a defence that raises matters said or done in the course of the plaintiff's judicial office.

The Court answered the referred questions. It held that the defence of truth is not precluded by judicial immunity, and that the defendant's defence does not constitute an abuse of process. The Court also determined that a judicial officer is not barred from bringing defamation proceedings, but that the defence of truth is available to the defendant. The Court further found that the principle of judicial immunity is consistent with the implied freedom of political communication, as discussions about the discharge of a judicial officer's function in a particular case can be considered matters of political or governmental concern.

Orders

Orders of the court

Answers to referred questions (at [127]-[128]):

Question A:

(i) No longer arises, but in any event, no.

(ii) No.

(iii) No longer arises.

Question B:

Does not arise.

Question C:

No.

Question D:

(i) No, but in any event does not arise given the answer to Question A.

(ii) Does not arise.

(iii) Does not arise.

Question E:

(i) No.

(ii) No.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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) 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.

Ratio Decidendi

Legal Principle Established

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