O'Shane v Harbour Radio Pty Ltd

BEAZLEY P:

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:

The plaintiff alleged that the first matter complained of, in its natural and ordinary meaning, conveyed the following meanings which were defamatory of her:

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:

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.

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 questions referred to this Court by McCallum J (the referred questions) were as follows:

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.

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.

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".

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:

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.

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.

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:

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.

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:

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 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:

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):

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:

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.

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:

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:

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:

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 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:

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.

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:

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]:

After referring to the immunity that protects a witness, the plurality referred, at [40], to judicial immunity:

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]:

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:

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.

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:

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:

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:

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.

In my opinion, the answer to Question A(ii) is "No". As I have earlier indicated, Questions A(i) and A(iii) were not in contention.

Having regard to the conclusion to which I have come in respect of judicial immunity, this question no longer arises, in that Question B was dependent upon an affirmative answer to Question A.

The plaintiff did not deny that the defendants are entitled to plead a defence of truth provided that in seeking to prove that defence, they do not infringe the principle of finality by seeking to re-litigate the particularised decisions. The referred questions do not raise the question of how the defence could or was to be proved and although the manner of proof was the subject of argument, questions of admissibility were not.

It is therefore inappropriate and, indeed, premature, to make any ruling as to whether such evidence as will be adduced is or is not admissible or whether there will be any limitations placed upon the evidence. I merely observe that the Evidence Act 1995, ss 48, 91 and 129 make provision in respect of transcripts and published reasons, and ss 135 and 136 make provision for the discretionary exclusion and limitation on the use to be made of evidence.

I will thus approach the question whether the pleaded further amended defence constitutes an abuse of process on the basis that the defendants propose to tender the transcripts of evidence, exhibits and the transcript of reasons in each of the particularised decisions to prove that the plaintiff made various errors of fact and law and that such evidence may be admissible. It should be reiterated that the plaintiff did not assert that the defendants could not tender the appeal judgments to prove that she had erred in those decisions that had been overturned by those judgments. Nor did she contest that transcripts could be tendered to prove her conduct and her state of mind in delivering the decisions.

Within those parameters, therefore, the question for determination, in respect of Question C, is whether the agitation of the defence of truth would be an abuse of process by trespassing upon the principle of finality of decision. I will only pause to foreshadow that I consider that the manner in which the defendants have pleaded their defence of truth plays a large part in the answer to this question.

There is a variety of circumstances in which it has been held that proceedings constitute an abuse of process and, therefore, should be stayed. Insofar as is relevant to the present matter, it has been said that proceedings will be stayed as an abuse of process if it is intended to litigate anew a case which has already been disposed of by earlier proceedings. There may be an abuse of process even if the circumstances do not give rise to an estoppel: see Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 393, citing, inter alia, Reichel v Magrath (1889) 14 App Cas 665 at 668. In Reichel v Magrath Lord Halsbury said, at 668:

In Walton v Gardiner, the plurality also endorsed the observation of Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536, that a superior court had inherent power to stay proceedings to prevent a misuse of its procedure which "although not inconsistent with the literal application of its procedural rules, would nevertheless ... bring the administration of justice into disrepute among right-thinking people". The plurality observed that the same approach as to the scope of the power to stay proceedings had been taken by each of Mason CJ, Deane J and Gaudron J in Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23.

It is apparent from the judgments of Mason CJ, Deane and Gaudron JJ in Jago v District Court of New South Wales that central to the question of abuse of process is the "public interest in the due administration of justice" and the public interest "in the maintenance of public confidence in the administration of justice": see Mason J at 30, citing the New Zealand Court of Appeal in Moevao v Department of Labour [1980] 1 NZLR 464 at 481. Gaudron J, at 74, referred to the court's inherent power to control its own processes, noting that the classes of case where the court should do so was not closed and that the Court may exercise its inherent powers "as and when the administration of justice demands".

The High Court in D'Orta-Ekenaike, at [74], in the context of advocate's immunity, also referred to the circumstances where an abuse of process may arise:

In Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; 226 CLR 256, the plurality (Gleeson CJ, Gummow, Hayne and Crennan JJ) at [15] accepted as correct the statement of McHugh J in Rogers v The Queen [1994] HCA 42; 181 CLR 251, at 286, that:

Their Honours, at [15], also quoted with approval McHugh J's further comment in Rogers, at 286, that whilst in most cases an abuse of process involved the commencement of proceedings, there could be an abuse of process in relation to any procedural step taken in the course of proceedings that had been properly commenced. See also PNJ v The Queen [2009] HCA 6; 83 ALJR 384, at [3].

The relevance, for present purposes, of an abuse of process not being dependent upon the existence of an estoppel, is that a court may intervene to prevent an abuse, notwithstanding that the subsequent proceedings are not between the same parties or their privies. As the authorities state, the Court will act upon an abuse of process where the use of the court's procedures would bring the administration of justice into disrepute.

State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Rep ¶81-423 (64,077) involved an attempted re-litigation of an issue that had already been decided between the plaintiff and a third party in an earlier proceeding. Factors considered, at 64,089, by Giles CJ Comm D in determining whether there was an abuse relevantly included: the importance of the issue in and to the earlier proceedings; the terms and finality of the finding as to the issue sought to be relitigated; the identity between the relevant issues in the two proceedings; the extent of the oppression and unfairness to the other party if the issue is relitigated, the impact of the re-litigation upon the principle of finality and on the public confidence in the administration of justice; as well as the overall balance of justice between the parties.

The abuse was not made out in Stenhouse. However, the approach of Giles CJ Comm D was approved by this Court in Rippon v Chilcotin [2001] NSWCA 142; 53 NSWLR 198 per Handley JA at [32] (Mason P and Heydon JA agreeing). See also Haines v Australian Broadcasting Commission (1995) 43 NSWLR 404. The importance that there be an identity of issues was emphasised in R v O'Halloran [2000] NSWCCA 528; 159 FLR 260 at 293 per Heydon JA (Spigelman CJ and Mason P agreeing).

United Kingdom authority is to the same effect, as is apparent from the High Court's references to such decisions dating back to Reichel v Magrath. The position is the same in Canada. In Toronto (City) v C.U.P.E Local 79 [2003] 3 SCR 77; SCC 63, Arbour J (all members of the Court concurring) stressed that the motives of a party in seeking re-litigation of an issue are irrelevant. Rather, the emphasis must be upon the integrity of the adjudicative process. As her Honour stated, at [46]:

The cases discussed above involved either the same parties to the earlier litigation or at least one of the parties who had been involved in the earlier litigation and who, in those earlier proceedings, had lost the issue to be relitigated in the subsequent proceedings. This particular aspect of the authorities was reviewed by Heydon JA in O'Halloran, especially at [101] ff. His Honour observed, at [103], that "[t]here cannot be 're-litigation' if there has not been litigation". Insofar as that was relevant to the circumstances in O'Halloran, his Honour stated that a non-party to civil proceedings, such as the DPP, was not necessarily precluded from bringing criminal proceedings in which an issue, litigated in earlier civil proceedings, was also in issue. Earlier, at [98], his Honour, having noted that the identity of the parties in the proceedings before the Court and the earlier proceedings was different, stated:

The point in the two observations, as I would understand it, was in the distinction between the parties, not being the same, which may not be a disqualification to finding an abuse, as compared to a requirement that there be a relevant earlier proceeding to which one party, said to be the author of the abuse in the later proceedings, was also a party. It is apparent, however, that his Honour did not have in contemplation the circumstance which has arisen here, where one party seeks to rely upon findings made by a judicial officer in particular proceedings to prove a defence of truth.

The authorities also state that the power to stay proceedings permanently on the ground that they are an abuse of process should be exercised with caution: Moore & Ors v Inglis (1976) 50 ALJR 589, at 593 and only in the most exceptional or extreme case: Walton v Gardiner [1993] HCA 77; 177 CLR 378, at 392, per Mason CJ, Deane and Dawson JJ (approving the Court of Appeal's formulation of the test in Gill v Walton (1991) 25 NSWLR 190). The onus of satisfying the court that there is an abuse of process lies upon the party alleging it and that the onus is "a heavy one": Williams v Spautz [1992] HCA 34; 174 CLR 509, at 529, per Mason CJ, Dawson, Toohey and McHugh JJ.

As the discussion of the authorities demonstrates, proceedings, or an aspect of proceedings, may be found to be an abuse of process if the matter complained of will bring the administration of justice into disrepute. There is a suggestion in O'Halloran that, where it is alleged that an issue has been decided in earlier proceedings, then, in order for there to be an abuse of process, at least one party to the earlier proceedings must be a party to the subsequent proceedings that are said to constitute the abuse, and that party must have failed on the issue that is sought to be relitigated. However, the authorities are also clear that the categories of abuse are not closed and the circumstances here are, at the least, unusual, if not unique.

The authorities also recognise that the same issue may be litigated in different proceedings, even though there has been a determination on that issue in earlier proceedings. This will occur, for example, where both civil and criminal proceedings are brought in respect of the same conduct. It will also occur where some regulatory action has been taken against an individual and civil proceedings are also brought. In those proceedings, the prosecuting party will rarely be a party in both sets of litigation. Different standards of proof apply and there may be different onuses. The evidence may not be the same. It could not be said in those circumstances that there would be an affront to the due administration of justice if an issue determined in a civil proceeding also arises for determination in criminal proceedings involving a person who was a party to the civil proceedings.

In the present case, the defendants propose to adduce evidence of the plaintiff having made decisions that were wrong in law. I have referred above to the errors that are alleged in the Kanaan matter. But other errors of law are alleged in the other particularised decisions. Thus, errors of law are alleged, for example, in respect of various rulings on evidence; in not permitting witnesses to be called; in dismissing a case before the prosecution had formally closed its case; by not applying the proper test for a prima facie case; and for failing to give adequate reasons.

In each of the seven particularised decisions that were subject of an appeal, the defendants have pleaded that they will "adopt the reasoning" contained in specified paragraphs of the relevant appeal judgment "in support of their case that the plaintiff made the errors of law identified" in the pleading. This pleading is directed to identified errors of law and is contained within the same subparagraph of the pleading in which specified errors of law are identified. There are also two allegations in the Wililo matter that the plaintiff made findings based on no evidence. The distinction seemingly drawn between those allegations and the other alleged errors of law is that they were not the subject of determination in the appeal judgments.

There are allegations of misconduct arising from statements made in the course of proceedings in the Wililo and Elskaf matters but, for the reasons given, they are not the subject of consideration under this question. In the Berlei bras matter there is an allegation of a breach of procedural fairness in predetermining the matter by a consideration of photos in chambers prior to the commencement of the hearing. However, that is also particularised as misconduct. The other allegations in the Berlei bras matter are allegations of misconduct. For the reasons given, those allegations do not fall for consideration under the question of abuse of process.

In my opinion, the defendants' submissions as to their intended reliance upon the transcripts to prove their case have to be understood in the context of the pleaded case, to which they should be bound. I have commented in the course of this matter that whilst I understand that defamation matters are lawyers' "tactical heaven", at the end of the day issues are framed by the pleadings and evidence must be contained within the issues as framed. The matter cannot proceed as if the pleaded case did not exist. On that basis, I have concluded that 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 in respect of the seven matters the subject of appeals. This conclusion relates to the defendants' proof of alleged errors of law.

Insofar as the defendants seek to assert that in the Wililo matter there were two findings made on the basis of no evidence, the plaintiff has not established that the pleading is such as to constitute an abuse of process. In this regard, the plaintiff did not direct any argument to the importance of these issues in the overall determination of the criminal proceedings heard by the plaintiff. The transcript was not before the Court to enable it to make any assessment of the matter. Further, in relation to the first no evidence point, the pleading contains a double barrelled allegation. It is not clear on the pleading whether the no evidence point relates to the first or second allegation and no point was taken by the plaintiff on the form of the pleading.

In reaching this conclusion, I am making no comment as to whether the transcripts will thereby be admissible or not. That question will depend, inter alia, upon the purpose of the tender. I can foresee that the transcript may have a relevance even on the basis that the defendants are confined to proof of legal error in the way they have pleaded their case. Questions of admissibility will of course be a matter for the trial judge.

Finally, it should be kept in mind that the defence of truth is a statutory defence to a claim in defamation and, within the constraints discussed, is a defence which it is permissible for the defendants to seek to prove. It is not oppressive to the plaintiff for the defendants to seek to do so. Indeed, it would be oppressive if the plaintiff was entitled to litigate her defamation proceedings, but at the same time for the defendants to be debarred from litigating an available statutory defence. I am not satisfied that the proposed manner of proof, which lies at the heart of the abuse, is an affront to the due administration of justice. In saying that, I reiterate that that conclusion has been reached on the form of the pleading, to which the defendants should be required to adhere unless the leave of the Court is otherwise sought.

My view would have been different if the defendants were permitted to re-litigate in a way other than by proof of legal error from the appeal judgments. I am of the opinion that a re-litigation, by a different tribunal of fact, that is, the jury, of the question whether a judicial officer made legal errors, would constitute an abuse of process.

It follows that Question C should be answered in the negative.

Given that I am of the opinion that there is no jurisdictional bar to the plaintiff bringing the present action, this question does not arise. Should other members of the Court have a contrary view to mine, I will state in brief terms my conclusion on this question.

The defendants submitted that if it was held that they were not entitled to defend the plaintiff's defamation proceedings by way of a defence of truth, the extension of judicial immunity as a sword would be inconsistent with the implied freedom of speech recognised in Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520. If that question arises, it raises the separate question as to whether the publications were in respect of political or governmental matters.

In brief, the Attorney General submitted that discussion about the discharge by a judicial officer of the judicial function in a particular case is not a discussion concerning political or governmental matters in the relevant sense: Herald and Weekly Times Ltd v Popovic [2003] VSCA 161; 9 VR 1 at [9] per Winneke ACJ; [507] per Warren AJA; John Fairfax Publications v O'Shane [2005] NSWCA 164; Aust Torts Rep ¶81-789 at [91]-[99] per Giles JA (Ipp JA agreeing); at [250]-[308] per Young CJ in Eq. See also Conservation Council of SA Inc v Chapman [2003] SASC 398; 87 SASR 62 at [295] per Besanko J (Doyle CJ agreeing); Peek v Channel 7 Adelaide [2006] SASC 63; 94 SASR 196 at [7]-[12] per Debelle J; [93]-[95] per Besanko J.

Whilst the discussion of the executive's failure to exercise the power to remove a judicial officer may be relevant to the system of representative and responsible government (see APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44; 224 CLR 322 at 361 per McHugh J and Popovic at [10] per Winneke ACJ), discussion as to how the officer has handled individual proceedings is not a discussion on political or government matters. This is so even if the person making the statements was, in effect, seeking the removal of the judicial officer It follows that Question E should be answered in the negative, in that I consider that the submissions of the Attorney General are correct and should be accepted.

Accordingly, I would answer the referred questions as follows:

I would answer Question E, which arose in the course of the hearing, as follows:

Having regard to the answers I have determined should be given to the referred questions, (and assuming the defendants' notice of motion for a stay is before the Court), it should be dismissed with no order as to costs.

The parties have had mixed success in the various questions and the proceedings were conducted in a way that was far from satisfactory. In the circumstances, the plaintiff and the defendants should pay her and their own respective costs of the referred questions.

McCOLL JA: I have had the advantage of reading in draft the reasons of Beazley P, Basten JA, Tobias AJA and McCallum J. I agree with Beazley P's reasons and the answers her Honour proposes to the referred questions.

I wish to make some comments about Basten JA's conclusion (at [241]) that Question E should be answered:

In my view precedent does not warrant the Court answering Question E in the manner his Honour proposes. Nor is it open to this Court to articulate a rule of law to the effect of that his Honour proposes. His Honour's answer represents a severe curtailment of a judge's civil rights. If such a step is to be taken, it is one which should either be taken by the High Court or the legislature.

As Beazley P's reasons demonstrate the High Court had the opportunity to articulate such a principle in Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204, but did not embrace it. The facts of that case are set out in Beazley P's reasons (at [49]) ff. As her Honour points out (at [50]) the plurality (Brennan CJ, Dawson, Toohey and Gaudron JJ) "did not refer to Troughton v McIntosh [[1896] NSWLawRp 113; (1896) 17 LR (NSW) 334] or otherwise question whether Special Magistrate O'Neill was entitled to bring defamation proceedings". Gummow and Kirby JJ agreed with the plurality in their separate reasons, while McHugh J dissented.

The ratio of Troughton v McIntosh does not rest on the proposition that the plaintiff, a Police Magistrate, could not maintain a cause of action against the defendant by virtue of his status as a Police Magistrate but, rather, upon the proposition that the words the defendant spoke were protected by the absolute privilege afforded to statements made in the course of judicial proceedings.

Stephen J's additional statement (at 340) of public policy reasons for deciding the case in favour of the defendant (see Beazley P (at [46]) and Cohen J's observations (at 358 - 359) (see Beazley P (at [47]) were dicta. Stephen J's statement was critical of a judge bringing proceedings against a litigant. Cohen J went further insofar as his Honour expressed the view that judges should not bring defamation proceedings, in substance, in respect of public criticism of their discharge of their judicial functions.

Simpson J explained (at 348) in his dissenting reasons that despite Martin CJ having observed in a recent contempt case (Re "The Evening News" Newspaper [1880] NSWLawRp 69; (1880) 1 LR (NSW) 211 (at 238)), that "[i]f the power to punish for these outside contempts is taken away from the Courts, it can hardly be contended that the Judges are to bring civil actions for libels published on them individually", his Honour "did not say or ... even hint that such actions were not maintainable." In his Honour's view (at 349), there was, at that time, no authority for the proposition that a plaintiff in the Police Magistrate's position could not maintain an action in the circumstances of that case. His Honour identified (at 349 - 350) English cases in which judicial officers had brought proceedings and recovered damages for imputations of corruption or partiality. He emphasised (at 350) that had the matter complained of in Troughton v McIntosh been uttered outside court, it could not have been contended that the plaintiff in that case could not have maintained an action.

Troughton v McIntosh has not been regarded as establishing any principle which prevents judicial officers from bringing actions in defamation. The present plaintiff successfully brought such an action in 2005 (John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164; (2005) Aust Torts Rep ¶81-789) as, too, did a Victorian Magistrate: The Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1; special leave to appeal refused: The Herald & Weekly Times Ltd v Popovic [2004] HCATrans 180.

Rather, Troughton v McIntosh, to the extent it is authority for any proposition, "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": Mann v O'Neill (at 252) per Kirby J. That is not this case.

In Mann v O'Neill (at 244 - 245) Gummow J set out the passage Beazley P has quoted from Stephen J's judgment and, too, the latter's observation if the conduct complained of also be a contempt, that "[the judicial officer] cannot have the option of vindicating the authority of his Court or of asking for reparation of the injury to his personal character" (Troughton v McIntosh (at 339). His Honour while recognising Stephen J's concern about the maintenance of public confidence in the administration of justice also acknowledged that "[t]he disadvantages to which his Honour referred must be weighed against the encouragement, by the existence of an absolute immunity, of the publication of malicious falsehoods." Thus, in Gummow J's view "[f]reedom to publish malicious falsehoods does not assist access to independent courts for the impartial quelling of controversies, without fear of the consequences", and:

In Mann v O'Neill (at 271 - 272) Kirby J discussed the delicate balance which must be struck between the desirability of judges tolerating "a high measure of public and private criticism, some of it (but not all) uninformed, erroneous and even malicious" and courts not depriving "an individual of fundamental civic rights (and particularly those recognised as universal human rights) [unless] there is clear authority of law to do so". His Honour continued (at 272):

McHugh J's dissent in Mann v O'Neill was confined (as one might expect) to the circumstances of that case: namely whether there was a defence of absolute privilege to a defamation action brought by a former Special Magistrate in circumstances where the defendant was a former litigant who had appeared before the plaintiff and the allegedly defamatory statements related to the plaintiff's conduct in office: Mann v O'Neill (at 216). His Honour emphasised (at 235 - 236) the undesirability of "a judicial officer suing a former litigant for defamation in respect of comments relating to the conduct or capacity of the judicial officer in conducting the litigation" which he considered was "incompatible with the holding of judicial office". Most, if not all judicial officers, I venture to suggest would share his Honour's sentiment in this respect.

His Honour saw the remedy in a contempt action "brought for the public benefit of maintaining confidence in the administration of justice, not to vindicate or appease the personal feelings of the judicial officer attacked" or an action for "scandalising the court [rather than] a private action for damages". Only in that way could courts ensure the effective functioning of the administration of justice by requiring "that the respect in which courts are held [is not] diminished". However, in my view there is much to be said for Kirby J's response (at 252) that "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 [and] ... should not be reversed by promoting punishment for contempt as an alternative to civil redress".

As Beazley P points out (at [65] - [66]), both Troughton v McIntosh and Mann v O'Neill are distinguishable, in short because neither defendant in this case was a litigant in any proceedings before the plaintiff. Accordingly, in my view, neither case has any persuasive precedential effect, even in the terms of seriously considered dicta, to permit this Court to answer Question E as Basten JA proposes.

I recognise the force of Basten JA's reasoning to his conclusion concerning the answer to Question E. There are many arguments which, as his Honour's reasons demonstrate, can be cogently advanced to support his answer. There are also cogent arguments which can be advanced to the contrary which take into account Kirby J's concern in Mann v O'Neill about the fundamental rights of judicial officers as citizens of the Australian polity to have recourse to the protection of the law to vindicate their reputations. Gummow J also recognised the necessity to protect the reputation of the magistrate, as a citizen, against false and malicious defamatory statements: Mann v O'Neill (at 248). Many of the arguments on both sides of this debate can be seen in the following articles: Justice R Sackville, "How Fragile are the Courts? Freedom of Speech and Criticism of the Judiciary" [2005] MonashULawRw 8; (2005) 31(2) Monash University Law Review 191 and K Gould, "When the Judiciary is Defamed: Restraint Policy under Challenge" (2006) 80 Australian Law Journal 602.

The common law and statute has seen fit in limited circumstances to deny individuals the right of access to the law enjoyed by all citizens. In general, those individuals are persons who by reason of particular aspects of their conduct or the relationship in which they stand to the putative defendant are seen as being properly deprived of that fundamental right.

Thus, "persons attainted of treason and felony could not answer the description in the writs of election of knights, citizens and burgesses as being persons of discretion, in the sense of prudence and sound judgment" so as to qualify as either electors or candidates for the House of Commons: Roach v Electoral Commissioner [2007] HCA 43; (2007) 233 CLR 162 (at [56]) per Gummow, Kirby and Crennan JJ.

In the case of the loss of the right to vote, "a right associated with citizenship, that is, with full membership of the community, the rationale for the exclusion [was] that serious offending represents such a form of civic irresponsibility that it is appropriate for Parliament to mark such behaviour as anti-social and to direct that physical separation from the community will be accompanied by symbolic separation in the form of loss of a fundamental political right": Roach v Electoral Commissioner (at [12]) per Gleeson CJ.

In Dugan v Mirror Newspapers Ltd [1978] HCA 54; (1978) 142 CLR 583 ("Dugan") the High Court held by majority (Barwick CJ, Gibbs, Stephen, Mason, Jacobs, and Aickin JJ; Murphy J dissenting) that a person convicted in New South Wales of a felony in respect of which he was sentenced to death but who was spared that penalty on condition that he be kept in penal servitude for life could not maintain an action in New South Wales for a civil wrong, in that case, an action for defamation.

The rationale for that principle was that a person "so convicted of a felony and duly sentenced to death was attainted so long as the attainder endured [and] ... was 'disabled to bring any action: for he is extra legem positus and is accounted in law civiliter mortuus'": Dugan (at 602) per Jacobs J. In other words, a convicted person could not maintain an action for a civil wrong because he or she was treated as having suffered "civil death": Dugan (at 597) per Stephen J; (at 608) per Murphy J.

The perceived harshness of the doctrine of attainder Dugan recognised as continuing in this State was ameliorated by the enactment of the Felons (Civil Proceedings) Act 1981: Patsalis v State of New South Wales [2012] NSWCA 307; (2012) 81 NSWLR 742 (at [4]) per Allsop P. Section 3 of that Act provided that "a person shall not, by reason of his having been convicted of, or found to have committed, a felony, be incapable of instituting and maintaining any civil proceedings in any court." Section 4 provided that a person who was in custody as a result of having been convicted of, or found to have committed, a felony might not institute any civil proceedings in any court except by the leave of that court granted on his application.

Vexatious litigants, too, are a class of people whose rights to commence proceedings can be curtailed in the circumstances for which the Vexatious Proceedings Act 2008 (s 8) provides. Nevertheless, a person the subject of a vexatious proceedings order may seek leave to institute proceedings of the kind to which the order relates: s 14(2), Vexatious Proceedings Act.

As the foregoing discussion makes apparent, there is no principle of the common law which would dictate the conclusion that a judicial officer should be treated as having suffered the form of civil death applicable to those attainted for felony, even in the limited circumstances of Basten JA's proposed answer to Question E. Even in areas where either as a matter of common law or statute access to the courts has been circumscribed, the legislature has moved away from a blanket bar towards curtailment tempered by a leave requirement.

These more recent developments might be seen to recognise the force of Murphy J's dissenting reasons in Dugan, namely that the proposition which found success with the majority in that case flew in the face of Articles 6, 7, 10 of the Universal Declaration of Human Rights, GA Res 271A (III), UN GAOR, 3rd Sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) and Articles 14 and 16 of the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) ("ICCPR") which, in short, recognised the fundamental civil right of access to the courts. Articles 14 and 16 of the ICCPR relevantly provided:

As Murphy J also pointed out (Dugan (at 607)), in Golder v United Kingdom [1975] ECHR 1; (1975) 18 Eur Court HR (ser A) (at 5) the European Court of Human Rights held that "[i]n civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts."

I recognise that this is not an area where the Court is bound even by seriously considered dicta of a majority of the High Court (cf Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 (at [134])). Nevertheless the High Court had the opportunity in Mann v O'Neill to embrace the proposition McHugh J proposed but chose not to.

This is not a case, in my view, where this Court can, or should, take the "momentous" step of articulating a principle a judicial officer cannot have recourse to the common law to pursue rights otherwise available to Australian citizens: cf Groves v Commonwealth [1982] HCA 21; (1982) 150 CLR 113 (at 127) per Stephen, Mason, Aickin and Wilson JJ.

If such a step is to be taken, it is a matter for either the High Court or the legislature.

BASTEN JA: The plaintiff is a magistrate in New South Wales. On 27 May 2011 the compere of the breakfast show on Radio Station 2GB, Mr Alan Jones, discussed criticisms made of another magistrate, Mr Brian Maloney. The conduct of Magistrate Maloney, while suffering from bipolar disorder, had led to complaints to the Judicial Commission, which had recommended his removal from office. In the course of the discussion, Mr Jones compared Mr Maloney with the plaintiff, Magistrate O'Shane. Ms O'Shane brought proceedings for defamation against the owner of Radio Station 2GB, Harbour Radio Pty Ltd, and Mr Jones.

In an amended statement of claim filed on 30 July 2012, the plaintiff identified the following defamatory imputations:

Each of the imputations is pleaded as arising in the natural and ordinary meaning of the matters complained of. However, the references in imputation (d) to the Judicial Commission may require an understanding of the statutory powers and functions of that body. The Commission was established under the Judicial Officers Act 1986 (NSW), s 5. Within the Commission there is a Conduct Division: s 13. The primary function of the Conduct Division is to hear complaints against judicial officers under Part 6 of the Act. The Conduct Division has a range of powers in respect of a complaint which it holds to be wholly or partly substantiated. It has no power of removal, but, if it forms the opinion that the subject matter of the complaint "could justify parliamentary consideration of the removal of the judicial officer ... from office" it is required to report to the Governor: ss 28 and 29.

The defendants filed a defence, which has now gone through a number of reformulations. They denied that the matters complained of were, or were capable of being, defamatory of the plaintiff. They further denied that the imputations relied on by the plaintiff were, or were capable of being, conveyed and, if conveyed, were, or were capable of being, defamatory. Importantly for present purposes, paragraph 10 of the defence has at all relevant times asserted that each of the imputations was substantially true. (A further amended defence produced in the course of the hearing in this Court suggested that the allegation of substantial truth in paragraph 10 had been deleted, but senior counsel for the defendants accepted that that was an error: Tcpt, 29/11/12, p 9(43)-(50). What had been intended was merely to replace the "particulars of truth".)

The defence as originally pleaded and as first amended, included lengthy "particulars of truth" which addressed nine specific decisions made by the plaintiff, seven of which had been reversed by the Supreme Court. The defendants sought to rely on transcripts of the Local Court proceedings and, where available, criticisms made in the Supreme Court judgments: Tcpt, 29/11/12, pp 7(35)-8(44).

On 19 March 2012 the plaintiff sought orders that the particulars of truth (as they then stood) be struck out. The contention was that the defendant was precluded by the principle of "judicial immunity" or the principle of "abuse of process" from seeking, in effect, to relitigate the judgments identified. The defendants responded that if they were not entitled to litigate the substantial truth of the imputations, there could be no fair trial and the defamation proceedings should be stayed.

The proceedings were then being case managed by the primary judge, McCallum J, in the Common Law Division. On 30 May 2012 the primary judge stated a number of questions for determination and directed that they be removed into this Court, pursuant to Uniform Civil Procedure Rules 2005 (NSW), rr 1.21 and 28.2. The questions were in the following terms:

These questions were formulated by reference to the pleadings, not the evidence. However, they are to be addressed by reference to the kind of evidence which could be adduced to support or contradict the relevant allegations. That is, in practical terms, they ask what evidence can the defendant adduce in support of a defence of substantial truth and what can the plaintiff rely on to rebut such evidence? The submissions proceeded on that basis, including by reliance on ss 16, 91 and 129 of the Evidence Act 1995 (NSW), dealing, respectively, with the competence and compellability of judicial officers, using the judgment to prove a fact which was in issue in that proceeding and proving the reasons or deliberations of a judicial officer otherwise than by reference to published reasons for decision.

Notice was given, in accordance with s 78B of the Judiciary Act 1903 (Cth), with respect to the constitutional issue identified in question D. The Attorney General for New South Wales intervened pursuant to s 78A of the Judiciary Act.

The questions for determination came before this Court for hearing on 18 September 2012. In the course of the hearing, it was revealed that the plaintiff sought to strike out only parts of the particulars to paragraph 10 of the defence. The course of argument also revealed a level of uncertainty as to the manner in which the defendants sought to run their case in this respect. The first day of the hearing resulted in directions being given for the purpose of clarifying the issues to be resolved.

The matter came back before the Court on 29 November 2012. The difficulty which arose on the first day of the hearing, and remained partly unresolved on the second day, was twofold. First, it was apparent that the imputations fell into two categories. The first, which was limited to imputation (c), involved the straightforward proposition that the magistrate had "failed in her duty" by delivering decisions which were "wrong in law". To prove that the decisions were wrong in law, the defendant proposed to rely upon the judgments in the Supreme Court which so held. Assuming that the judgments were admissible for that purpose, the defendants did not need to relitigate decided matters.

The second category, which covered the other three imputations, went further. Imputation (b) asserted that the plaintiff failed in her duty "by delivering diabolically bad decisions", which was not a simple proposition of legal error, to be established by a decision of a higher court. The other two imputations, (a) and (d), did not specifically refer to her decisions, good or bad, but to her incompetence or dereliction of duty. The real question was how the defendants intended to prove the truth of these three imputations. In particular, the question was whether they intended to rely upon aspects of the hearings before the plaintiff, or even proposed to call witnesses as to the matters in dispute in those hearings, or as to the conduct of the plaintiff in the course of the hearings.

There was a further difficulty: although not initially relied upon by the defendants, a question arose in the course of argument as to whether the proceedings were misconceived because the only remedy for such statements about the conduct of a judicial officer lies in contempt of court: see Troughton v McIntosh (1896) 17 NSWR(L) 334. On 6 December 2012, the defendants proposed a further question, namely:

The course of submissions in this Court followed the chequered course of the amendments to the pleadings. In her initial written submissions of 1 August 2012 the plaintiff contended:

Between the dates of the hearing in this Court, the defendants (after providing new particulars of truth) appeared to have persuaded the plaintiff that they did not seek to relitigate the decisions in the Supreme Court. On that basis, when the matter came on for hearing on the second occasion, the plaintiff sought to withdraw the allegation at paragraph 44 above, and to submit that the questions referred to the Court no longer required answers.

How this position came about need not be explored. Why the defendants should have sought to "relitigate" cases in the Supreme Court, which found error of law on the part of the plaintiff in reaching her decisions, is obscure. Rather, in order to establish the sting in the second category of imputations - being paragraphs (a), (b) and (d) - the defendants needed to establish matters addressed by the plaintiff in her judgments and, in some cases, her conduct in the course of hearing those matters, to demonstrate that the decisions (and her behaviour) were not merely wrong, but reprehensibly so.

Furthermore, in the two cases in which there had been no appeal or review decision by a superior court, it was clear that the defendants needed to establish that errors of the kind alleged had in fact taken place. This last point was illustrated by the draft "Further Amended Defence" placed before the Court between the hearing dates (referred to at [162] above). The first of the matters relied upon, the decision in R v Kanaan, was one of the cases which was not reviewed in the Supreme Court. The particulars (transcript references omitted) read as follows:

The other matter relied upon which had not been reviewed was Police v Jones & Ors, referred to as the "Berlei bra case" because it involved the defacement of a billboard advertising Berlei bras. The particulars (again omitting transcript references) were as follows:

The other seven cases involved decisions in the Local Court which were overturned on review. In respect of each, after setting out the nature of the charges and the conclusions reached by the plaintiff in disposing of the charges, the defendants stated that they would "adopt the reasoning" contained in the judgments of the Supreme Court and pleaded that "further and alternatively" they would rely upon the judgments of the Supreme Court as demonstrating the errors of law separately particularised.

As the defendants submitted, it was not correct to say that the issues sought to be raised by the questions referred to the Court no longer arose. At least in respect of the two cases not the subject of review by the Supreme Court (Kanaan and Berlei bra), they remained relevant. That in turn led the defendants to assert that if they were not entitled to establish the truth of their allegations by challenging the decisions in the Local Court, and proving conduct on the part of the plaintiff which might justify the evaluative imputations, they would not receive a fair trial. If that were the consequence of the proper application of legal principle, the defendants contended that the plaintiff should not be allowed to proceed with her claim in defamation, which should accordingly be stayed.

In the course of the second hearing, counsel for the defendants, accepting that the last two steps in the reasoning invited application of the principles referred to in Troughton, sought leave to rely upon the judgment in that case, a stance which they had earlier eschewed. The earlier position may in part have followed from the existence of decisions both in this State and in Victoria in which proceedings in defamation by magistrates had been addressed and determined without the propriety of such claims being questioned.

Each party having been given leave to file further written submissions addressing the application of Troughton, the defendants should have leave to amend their defence to rely on those principles and the issue now raised, as identified in question E, should be determined by this Court. As a matter of logic it should be addressed first; however, for reasons which will appear, it involves aspects of other questions and is best left to last.

Being a magistrate, the plaintiff was a "judicial officer" as defined in s 3(1) of the Judicial Officers Act. As such, she had in the performance of her duties as a judicial officer "the same protection and immunity as a Judge of the Supreme Court": s 44B(1). The scope of the judicial immunity enjoyed by a judge of the Supreme Court is not addressed in the Judicial Officers Act, but was explained by Tobias JA (Mason P and Beazley JA agreeing) in Scanlon v Director-General, Department of The Arts, Sport and Recreation [2007] NSWCA 204; 70 NSWLR 1 at [52]-[57]. Although s 44B did not commence until 7 July 2003, the plaintiff submitted that if the immunity conferred by the statute did not enure for the benefit of magistrates thereafter, even though the impugned conduct may have occurred in the past, the same result would flow from the common law: cf Scanlon at [63].

The real question with respect to the operation of s 44B, however, was whether it applied at all in respect of these proceedings. An immunity usually provides protection against steps taken by another person asserting liability in the holder of the immunity. By contrast, the present case involves proceedings brought by the plaintiff (the holder of the immunity) against a third person, namely the publisher of the allegedly defamatory remarks. Those remarks were actionable (if at all) under the general law of defamation and not because the plaintiff enjoyed judicial immunity. The potential relevance of the immunity was to prevent the defendant proving that the plaintiff had conducted herself in a particular way in exercising her functions as a magistrate.

It is not necessary to identify the precise scope of a judicial officer's immunity for present purposes. As explained in Scanlon, it does not extend to protect an officer from the consequences of misconduct which would justify removal from office: at [57]. It does, however, protect an officer from compulsory disclosure, by answering interrogatories or producing documents, where such a course would tend to disclose the manner in which a decision has been reached which is not apparent from, or is inconsistent with, published reasons: Herijanto v Refugee Review Tribunal [2000] HCA 16; 74 ALJR 698 at [15]-[16] (Gaudron J). In Herijanto, the plaintiffs sought to interrogate members of the Refugee Review Tribunal, who had the same immunity and protection as judges of the High Court, as to whether they had had regard to certain documents, which were required to be forwarded to them by the Secretary of the Department, but had simply been made available on a computer database. Interrogatories seeking disclosure of aspects of the decision-making process were set aside. A further application to search the records of the computer database, to determine whether Tribunal members had in fact had access to relevant documents, was also rejected: Herijanto v Refugee Review Tribunal [No 2] [2000] HCA 21; 74 ALJR 703. At [10], Gaudron J stated:

That is not to say that evidence of what occurred in court may not be given by a third party who was present, even if it does not form part of the record or the transcript of the proceedings. That may occur, for example, where a decision is challenged for want of procedural fairness, or an appeal is brought based on a reasonable apprehension of (or actual) bias: see, eg, Barakat v Goritsas (No 2) [2012] NSWCA 36 at [25]-[30] (statements made in court but not recorded on the transcript); CUR24 v Director of Public Prosecutions [2012] NSWCA 65 (remarks at a social event).

The questions raised for determination by this Court do not directly involve any compulsory process directed to the plaintiff (such as a requirement to answer interrogatories), although if she were to give evidence, issues might arise as to the potential scope of the evidence and cross-examination: see Evidence Act, s 129, noted below at [194]. It will be convenient to return shortly to the place of the immunity in its institutional context in the administration of justice.

Question C raised the possibility that paragraph 10 of the amended defence involved an abuse of process, but of a particular kind. It would constitute an abuse, the plaintiff submitted, if the defendants were allowed to reopen and relitigate judicial proceedings which had been finally determined. The defendants, on the other hand, suggested there would be an abuse of process if the claims were permitted to proceed in circumstances where the principle of finality prevented them from relying on a defence of substantial truth.

In D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1, a case concerned with the advocate's immunity from suit, the joint reasons of Gleeson CJ, Gummow, Hayne and Heydon JJ stated at [34]:

The primary operation of that principle was identified by reference to the parties seeking to reopen a settled controversy. However, the joint reasons continued at [36]:

The joint reasons then discussed a number of aspects of immunity from suit, including the development of judicial immunity, stating at [41], by reference to a question asked by Fry LJ in Munster v Lamb (1883) 11 QBD 588 at 607 in the following terms:

The Court then reasoned that "relitigation of the controversy would be an inevitable and essential step in demonstrating that an advocate's negligence in the conduct of litigation had caused damage to the client": at [43]. That, it was concluded, was the reason for precluding suits in negligence against an advocate for the conduct of a case in court.

The question in the present case is whether allowing the defendants to plead the truth or substantial truth of the imputations would be to allow them to reagitate the correctness of decisions which have been resolved in court and either not challenged by way of appeal or review or, even if challenged successfully and overturned, in a manner which may require revisiting the original decisions to demonstrate the force of inferences drawn from the finding of error.

In order to assess the validity of this complaint it is convenient to focus first on the two cases which were not subject to appeal or review, that of Mr Kanaan and the Berlei bra advertisement offences.

In relation to the Kanaan matter, it is at least arguable that if the defendants establish the particulars of truth, the jury could conclude that the decision of the plaintiff in dismissing the charges was wrong and that her comments about the police officers were "disgraceful". Those findings would provide support for each of the imputations, with the possible exception (depending on the precise terms of the finding) of being wrong in law. Arguably that exercise would involve "relitigation" of her decision on the committal proceedings, with a different result. However, not all "relitigation" necessarily breaches the principle of finality. In this case, the committal proceeding did not finally dispose of the criminal charges: an ex officio indictment could have been laid and could have resulted in conviction. From the discussion in Fairfax v O'Shane and from the published judgment on sentence - Regina v Michael Kanaan [2006] NSWSC 539 - it is on the public record that these things occurred. That is not to say that the defendants can rely on these subsequent events to establish the truth of their complaints, which must be based upon the evidence before the plaintiff and not the evidence relied upon at trial. The point is rather that the principle of finality is not contravened in a practical sense by permitting the defendants to rely upon these particulars.

However, any challenge to the plaintiff's findings invites analysis of the process of decision-making. The plaintiff is precluded by s 129 of the Evidence Act from giving evidence of the reasons for her decisions or giving evidence of her "deliberations ... in relation to" the impugned decisions: s 129(1). All that she can put in evidence is her published reasons: s 129(3). With one possible qualification, none of the exceptions apply to these proceedings: cf s 129(5). The possible exception relates to "a civil proceeding in respect of an act of a judicial officer ... that was, and that was known at the time by the judicial officer ... to be, outside the scope of the matters in relation to which the judicial officer ... had authority to act": s 129(5)(e). There was no suggestion that that exception was engaged in the present case. Thus, although a judge is competent, but not compellable to give evidence about a proceeding (s 16), that does not assist the plaintiff in the present case.

The scope of the principle of finality, as a safeguard against an abuse of process, is by no means easily determined. Neither the plaintiff nor the defendants were parties to the original proceedings. Thus no party is to be twice vexed. The closest analogy might be found in the law of contempt, dealing with third parties whose conduct is alleged to scandalise the court. However, the analogy departs from the present circumstances in two respects. First, in contempt proceedings of that kind, the judicial officer is not a party, let alone the moving party, in the proceedings: Fraser v The Queen [1984] 3 NSWLR 212 at 218. Secondly, the proceedings are brought in the public interest and not to vindicate a private interest of the judicial officer (or any other person): Helmore v Smith (No 2) (1886) 35 ChD 449 at 455 (Bowen LJ) and McLeod v St Aubyn [1899] AC 549 at 561 (Lord Morris). Those qualifications aside, a comparison with contempt leads from one area of uncertainty into another. It has been recognised (or assumed) that defences of fair comment and justification may operate with respect to a charge of contempt for bringing a court into disrepute. Thus, in Nationwide News Pty Ltd v Wills [1992] HCA 46; 177 CLR 1 at 39, Brennan J stated:

Support for that proposition was found in The King v Nicholls [1911] HCA 22; 12 CLR 280 at 286; see also Hoser & Kotabi v The Queen; Ex parte Attorney General for the State of Victoria [2003] VSCA 194. The practical difficulties of running such a defence were noted by the Court of Appeal in New Zealand in Solicitor General v Radio Avon Ltd [1978] 1 NZLR 225 at 231(Richmond P, for himself and for Woodhouse and Cooke JJ). In Attorney General v Blomfield (1914) 33 NZLR 545, Williams J noted that the court hearing a contempt charge in summary proceedings "does not sit to try the conduct of the judge". The paucity of authority suggests that this step has rarely, if ever, been taken. As a practical matter, that may be because the Attorney General or other prosecuting authority would be unlikely to pursue a charge of contempt in respect of an allegation of serious judicial misconduct if satisfied that the allegation had substance. Further, questions as to the appropriate forum aside, judicial misconduct can lead to removal from office and judicial corruption to prosecution: see Fingleton v The Queen [2005] HCA 34; 227 CLR 166 at [39]-[40] (Gleeson CJ). The precise circumstances in which such steps may be taken need not be explored: the point for present purposes is that no principle of finality will preclude the reconsideration of particular cases where misconduct is believed to have occurred.

A somewhat different analysis must operate in respect of the Berlei bra decision. Although a finding that the decision was "diabolically bad" could entail the conclusion that it was wrong in law, the criticism of the plaintiff's conduct derives from her own statements in the course of delivering reasons for her decision. The thrust of the defence is not so much that the result was wrong, but that the plaintiff described her process of decision-making by reference to her own feelings, which were extraneous to the proper administration of justice. Again there is no challenge to the principle of finality, in the sense articulated in D'Orta-Ekenaike.

The remaining particulars relate to decisions which were set aside by the Supreme Court on review. To the extent that the defendants seek to rely upon the findings in judgments of the Supreme Court and the reasoning underlying those findings, there can be no challenge to the principle of finality. The plaintiff does not seek to challenge those judgments.

No doubt a finding that, in a particular case, the plaintiff erred in law, or denied a party procedural fairness, will not go far to establishing the truth of imputations other than imputation (c). Nevertheless, for the purpose of answering the questions posed, that is a sufficient legitimate use. The circumstances in which findings were made in the Supreme Court, and the number of such cases, may provide some support for the truth of the evaluative imputations as well.

Questions A, B and C speak in terms of "the rule of judicial immunity". Apart from the fact that it is not a "rule" but a principle, for the reasons already articulated, it is not a principle which has direct application to the circumstances of this case. If question A were to be answered in the negative, question B would not then arise. On the understanding that question C, referring to "the principle of finality of decisions" is taken to ask similar questions to those identified in questions A and B, but on an alternative basis, that question would also be answered in the negative.

However, before leaving the analysis of judicial immunity and the principle of finality, it is necessary to ask, by reference to the interests underlying these principles, whether a claim in defamation is maintainable by a judicial officer.

Mann v O'Neill [1997] HCA 28; 191 CLR 204 concerned proceedings in defamation brought by a magistrate against a former litigant in a case heard by the magistrate, who had written to the Attorney General and the Minister for Justice, questioning the magistrate's capacity to perform the functions of his office. McHugh J said at 235:

The comments did not expressly cover the present case because the defendants were not former litigants before the plaintiff. Further, McHugh J was in dissent. The issue in Mann was whether the letters were absolutely privileged; the joint reasons of Brennan CJ, Dawson, Toohey and Gaudron JJ held they were not, without commenting on the standing of the magistrate to sue. Gummow J rejected the idea that an unfettered "freedom to publish malicious falsehoods" assisted access to impartial courts (at 245), a view with which Kirby J agreed. Kirby J added at 272:

The defendant in Troughton v McIntosh (above at [171]) had brought a statutory appeal in a Court of Petty Sessions at Moree against five assessments of rates on property he owned. A few days before the hearing of his appeal, he had attended a meeting of ratepayers in the municipal district of Moree and criticised the magistrate's handling of a previous hearing. When his appeals were subsequently heard, four were rejected. As he was leaving the Court he said:

The magistrate brought proceedings in defamation in respect of the latter statement. A jury found in favour of the magistrate and awarded him ₤300 damages. The verdict was set aside, the Full Court concluding that the magistrate had no action in slander for the words uttered, although they cast aspersions on his integrity and personal character.

The Court in Troughton was constituted by M H Stephen J, G B Simpson J and Cohen J; Simpson J dissented. The reasoning of the majority, although expressed in separate judgments, was coherent. It was founded primarily upon two propositions. The first was that, at least with respect to comments made in open court, any wrong done was a wrong to the institution, for which a public remedy was available, namely proceedings for contempt of court: at 338 (Stephen J) and 356 (Cohen J). Stephen J in particular was concerned at the potential for the administration of justice to be brought into disrepute if dual remedies were permitted, particularly where the words were uttered by a party, in the precincts of the court, shortly after the completion of a proceeding. Disrepute could arise if the party were responding to remarks made by the judge under protection of judicial immunity (at 341, 356 and 363) and also because of the potential for inconsistent outcomes, if the judge should hold the words to be a contempt of court and then have a jury (in defamation proceedings) rule upon "the integrity of his motives, the infringement of which he had treated and punished as a contempt of court": at 339. Secondly, the majority were impressed by the apparent absence from the reports of any cases of judges suing in defamation in the past 200 years: at 337, 339-340 and 358.

The majority parted company as to whether the principle extended to defamatory remarks in the press. Stephen J noted at 341:

Cohen J stated at 358-9:

A number of aspects of Troughton limit its direct application. It does not address actions (a) brought against third parties for defamatory statements made away from the court and (b) by persons who had no direct involvement in the proceedings. Each of those distinctions is important. The first because, whatever the powers of a magistrate in dealing with scandalising conduct in the face of the court, proceedings for contempt in respect of conduct outside the court would not usually be dealt with by the judicial officer whose integrity has been called into question. The second aspect is important because, unlike a party or a witness, the third party commentator has no immunity for things done in the course of proceedings. In the case of a party or witness there can be nice questions as to when the immunity ceases.

There is also the subsequent history to be taken into account: later examples of proceedings brought by judges and magistrates for defamation may diminish the weight given in Troughton to the absence of such proceedings up until 1896.

The language of "dual remedies" must also be treated with caution. Defamation is concerned with the lowering of the reputation of the individual judge whose conduct is impugned; contempt is concerned with the bringing of the administration of justice into disrepute. One involves a challenge to individual reputation, the other to institutional integrity. There is no reason in principle why both should not have remedies. Nor is the possibility of inconsistent outcomes necessarily decisive. An assault and battery will usually involve both a criminal offence and a civil wrong: both public and private remedies are available and the pursuit of one does not preclude the other. This case engages separate concerns to be discussed below.

The form of contempt apposite to public comment on court proceedings is commonly known as "scandalising contempt". Arlidge, Eady and Smith On Contempt (4th ed, 2011) in a section on "Scandalising the Court" noted the remarks of Lord Diplock in Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339 at 347, stating that proceedings for such contempt were "virtually obsolescent": at par 5-204; cf Hoser & Kotabi Pty Ltd, [2003] VSCA 194. In Gallagher v Durack [1983] HCA 2; 152 CLR 238 at 243, the High Court noted that "[t]he authority of the law rests on public confidence, and it is important for the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges". Referring to this passage, the authors of Arlidge commented at [5-206]:

If that were true, it might also provide a powerful argument against permitting claims in defamation. However, it is doubtful whether an a priori categorisation of criticism as baseless or valid assists. The correct categorisation will often be disputed and may require judicial resolution. Further, there are questions of degree: in some cases a personal attack on a judge may not be thought to reflect seriously on institutional integrity. The authors continued at [5-208]:

The Kilmuir Rules had substantially restricted the ability of judges to respond to criticism in the media: see A W Bradley, "Judges and the Media: The Kilmuir Rules" [1986] PL 383. An example of a settlement was given as a footnote to the statement that such events had occurred. The description was as follows:

Arlidge continued at [5-209]:

Support for these propositions was found in Re A Special Reference from the Bahama Islands [1893] AC 138; McLeod v St Aubyn [1899] AC 549, and Johnson v Grant [1923] SC 789.

In 1974, a UK Committee chaired by Phillimore LJ recommended numerous changes to the law of contempt. Legislation followed in the form of the Contempt of Court Act 1981 (UK). In relation to scurrilous abuse, it is clear that the Phillimore Committee assumed that individual judges could bring proceedings in defamation: see pars 162-164.

In Australia, the Law Reform Commission made a similar assumption in its Report No 35 Contempt (AGPS Canberra, 1987). In discussing contempt by scandalising (Chapter 10), the Report noted that there were other branches of the law which were potentially relevant but which had "distinctly different" aims, including civil defamation which is "concerned with damage to the personal reputation of any individual in the community" but "has no special connection with judges and courts, nor indeed with the members of any particular group or institution within the community": at par 419. The Report continued:

An attack on a judge's personal conduct would not usually scandalise the institution or 'judicial role'. Nevertheless, there will be cases, of which this is one, where an attack on conduct in office will impugn the judge's personal reputation. Accordingly, both private and public interests are engaged: the question is whether the former can be separately vindicated.

Against this background, two further Australian cases should be noted, one of which involved the present plaintiff. In John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164; (2005) Aust Torts Rep ¶81-789, the matter complained of was an article published in the Sydney Morning Herald, referring to some of the same cases as those relied on in the present proceedings, including the Kanaan committal and the Berlei bra advertisement. A jury upheld the imputations pleaded and found them defamatory. Defences of comment and qualified privilege were rejected and damages were assessed at $220,000. The appeal focussed on the defences, some of which were upheld and some rejected. Giles JA stated:

The last sentence in that passage is directed to institutional, rather than personal, interests. The context suggests it was intended to reject the proposed limitation on proceedings to protect or vindicate personal interests. The other Australian precedent is to be found in proceedings brought by the Deputy Chief Magistrate in Victoria in relation to an article critical of her conduct in particular proceedings: The Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; 9 VR 1. The nature of the case is adequately identified by the three "false innuendos" referred to by Gillard AJA at [31]:

Amongst the issues raised in those proceedings was a defence based on the implied freedom of political communication. That matter was dealt with by Bongiorno J at trial: Popovic v Herald and Weekly Times Ltd [2002] VSC 174. The plaintiff's claim was upheld and she was awarded $210,000 by way of compensatory damages and a further $25,000 for exemplary or punitive damages: Popovic v Herald and Weekly Times Ltd (No 2) [2002] VSC 220 at [48] and [49].

In contrast to the views expressed in Troughton, the weight of recent opinion favours the availability of a claim in damages for defamation of a judicial officer, although in practice they are rare. Nevertheless, there has been little articulation of the underlying principles in contested claims.

McHugh J's comments in Mann v O'Neil (in relation to a judicial officer suing a former litigant for defamation in respect of comments relating to the conduct or capacity of the judicial officer in conducting litigation) are not necessarily limited to suits against former litigants. Nor is that disquiet quelled by the response of Kirby J that judicial officers should not be completely without redress with respect to "false and malicious allegations which damage their reputation": set out at [203] above. It is the need to determine the falsity or otherwise of the allegations which gives rise to the sense of disquiet.

Nor is the solution necessarily advanced by an irrebuttable presumption that judicial officers are personally immune from the effects of criticism of their judicial performance, as suggested by McHugh J. Rather, it is necessary to identify (a) the personal interests which the private cause of action protects, (b) the particular values (or public interest) which support the finality of litigation, (c) those separate values (or public interests) which support the judicial immunity and (d) the effect of those institutional values, underlying the administration of justice, on any private right of a judicial officer to sue in defamation.

There are four public interests at stake. First, there is the abuse of process which is potentially present in allowing a collateral attack on the decisions of judicial officers. That invokes the second limb of abuse identified by Lord Diplock in Hunter v Chief Constable of West Midland Police [1982] AC 529 at 536, namely bringing the administration of justice into disrepute among right thinking people. Although the plaintiff does not seek to impugn his or her own decisions, neither can he or she seek to defend them by explaining the underlying reasoning. Nor can the plaintiff rely on them to resist any attempt by the defendant to establish a defence otherwise open in such proceedings, without creating a new form of immunity.

The second public interest is that which underlies the principle of judicial immunity. That interest is concerned with a different value in the administration of justice, namely the protection of judicial officers' independence, by removing a potentially powerful extraneous influence: see generally, Rajski v Powell (1987) 11 NSWLR 522 at 527-530 (Kirby P).

Thirdly, there is the principle underlying contempt for scandalising the court. The purpose of such proceedings is to protect the courts from false or unfair allegations which tend to bring the administration of justice into disrepute: The King v Dunbabin; Ex parte Williams [1935] HCA 34; 53 CLR 434 at 442. Such proceedings are rare in modern times, a fact which no doubt reflects the judgment of relevant public officers as to the propriety of bringing such proceedings in the public interest in particular circumstances. Because such proceedings may in some circumstances cause more harm than they prevent or undo, such judgments are properly left to officials acting in the public interest and not to individuals wishing to pursue private interests.

Fourthly, there is the related public interest in determining the truth or otherwise of allegations of misconduct by judicial officers. That interest may directly conflict with the private interest of the individual officer to clear his or her name.

So far as the private interests of the judicial officer are concerned, they do not equate with those of ordinary citizens, with respect to their professional reputations. That is illustrated by the fact that they are protected from suit for their conduct in judicial office. It is also reflected in their tenure, which gives them security in office for the remainder of their professional lives (subject to a retirement age) with unusual constitutional procedural protections from removal, even for misconduct or incompetence: Constitution Act 1902 (NSW), s 53. That in turn renders them immune from relevant economic loss. The interest sought to be protected derives solely from the conferral of governmental power on the individual judicial officer. The acts of the judicial officer are the acts of the court, not the acts of an individual; the judge is not a party to any appeal; judicial review of orders made is properly brought against the court or tribunal, not against the judicial officer who made the orders: Brown v Rezitis [1970] HCA 56; 127 CLR 157 at 169 (Barwick CJ); Kerr v Commissioner of Police [1977] 2 NSWLR 721 at 724-725 (Moffitt P, Hope and Samuels JJA agreeing); Re Ruddock; Ex parte Reyes [2000] HCA 66; 75 ALJR 465 at [25]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294 at [43] (McHugh J); Police Integrity Commission v Shaw [2006] NSWCA 165; 66 NSWLR 446 at [43]. That is not to deny that a degree of civil protection would not be foregone if a judicial officer could not sue for damages in defamation when the subject of false or malicious allegations. Rather, it is to give greater weight to the countervailing public interests when the allegations relate solely to the officer's performance in judicial office.

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.

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:

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]:

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:

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 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.

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:

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):

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:

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.