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

Federal Court of Australia

Barilaro v Shanks-Markovina (No 2) [2021] FCA 950 File number(s): NSD 484 of 2021

Judgment of: RARES J

Date of judgment: 13 August 2021

Catchwords: CONSTITUTIONAL LAW – Parliamentary privilege – evidence – where Art 9 Bill of Rights 1688 (Eng) prohibits impeaching or questioning in court anything done in proceeding in Parliament – whether Art 9 prevents publisher pleading and seeking to prove defences of justification and honest opinion of imputations that member of Parliament committed perjury before Parliamentary committee – where publisher admitted matter complained of conveyed defamatory imputations of and concerning applicant member – where matter complained of conveyed defamatory imputations that applicant committed perjury nine times before committee of New South Wales Parliament and in so conducting himself should be gaoled – where defence of justification and proper material founding defence of honest opinion necessarily would involve impeaching or questioning proceedings in Parliament – Held: publisher not entitled to plead defences that would infringe Parliamentary privilege PRACTICE AND PROCEDURE – application to strike out or stay part of proceeding pursuant to r 16.32(1)(f) Federal Court Rules 2011 – whether abuse of process for applicant to rely on imputations that he committed perjury nine times in proceedings in Parliament where publisher's defences would infringe Parliamentary privilege – whether operation of Parliamentary privilege creates unfairness for publisher – where Parliamentary privilege not waived – where publisher chose subjects of and statements in matter complained of without provocation under Parliamentary privilege by applicant member of Parliament – whether unfairness if applicant prevented from proceeding on admitted imputations – Held: stay or strike out of proceeding in relation to imputations refused PRACTICE AND PROCEDURE – whether particulars could support proposed defence of justification – whether particulars identified proper material relied on it defence of honest opinion – whether contextual imputations articulate act or condition defamatory of applicant– whether particulars insufficiently precise – whether particulars identify specific passages of matter complained of comprising proper material or relate that material to particulars establishing their substantial truth – Held: if defences capable of proper pleading, publisher must reformulate contextual imputations and particulars of justification and honest opinion defences PRACTICE AND PROCEDURE – application for leave to file and serve defence out of time pursuant to r 1.39 – whether explanation of delay adequate – whether in interests of justice to grant leave to publisher to file and serve repleaded defence – Held: publisher given leave to file and serve reformulated defence within 12 days