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

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

Defences of justification and honest opinion to imputations that Mr Barilaro committed perjury nine times before a Parliamentary committee would necessarily impeach or question proceedings in Parliament and, by force of Article 9 of the Bill of Rights 1688 (Eng), may not be pleaded or advanced. The publisher is not entitled to plead or seek to prove those defences. This prohibition does not render the applicant’s pursuit of his claim an abuse of process in the circumstances, nor does it warrant a stay or strike out in relation to those imputations. The publisher is granted leave to file an amended defence, omitting the impermissible defences and reformulating contextual and other...

Jurisdiction
Australia
Judgment Date
13 August 2021
Procedural Posture
Defamation Interlocutory / Interlocutory Judgment on Applications to Strike Out or Stay Proceedings, and Application for Leave to File a Defence Out of Time
Outcome
Application to stay or strike out the proceeding in relation to the relevant imputations refused. Defences of justification and honest opinion as to perjury imputations may not be pleaded. Leave to replead certain defences granted, with directions. Costs ordered against first respondent for the interlocutory hearing.
Legal Topics
['parliamentary Privilege' 'strike Out/stay of Proceedings' 'defamation Defences (justification, Honest Opinion, Contextual Truth)' 'pleading Standards' 'abuse of Process' 'leave to File Out of Time']
['constitutional Law' 'defamation Law' 'civil Procedure'] ['parliamentary Privilege' 'strike Out/stay of Proceedings' 'defamation Defences (justification, Honest Opinion, Contextual Truth)' 'pleading Standards' 'abuse of Process' 'leave to File Out of Time']

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Procedural Posture

Defamation Interlocutory / Interlocutory Judgment on Applications to Strike Out or Stay Proceedings, and Application for Leave to File a Defence Out of Time

Legal Issues

  1. 1 ['Does Parliamentary privilege (Article 9 Bill of Rights 1688 (Eng)) prevent the publisher from pleading and seeking to prove defences of justification and honest opinion to imputations that a member of Parliament committed perjury before a Parliamentary committee?' 'Whether the operation of Parliamentary privilege requires part of the proceeding to be stayed or struck out as an abuse of process?' 'Whether the pleadings and particulars for various defences to other imputations and contextual truth are sufficient?' 'Should leave be granted to file and serve an amended defence out of time?']

Ratio Decidendi

Defences of justification and honest opinion to imputations that Mr Barilaro committed perjury nine times before a Parliamentary committee would necessarily impeach or question proceedings in Parliament and, by force of Article 9 of the Bill of Rights 1688 (Eng), may not be pleaded or advanced. The publisher is not entitled to plead or seek to prove those defences. This prohibition does not render the applicant’s pursuit of his claim an abuse of process in the circumstances, nor does it warrant a stay or strike out in relation to those imputations. The publisher is granted leave to file an amended defence, omitting the impermissible defences and reformulating contextual and other...

Court Disposition

Application to stay or strike out the proceeding in relation to the relevant imputations refused. Defences of justification and honest opinion as to perjury imputations may not be pleaded. Leave to replead certain defences granted, with directions. Costs ordered against first respondent for the interlocutory hearing.

Orders

  • ['Declaration that first respondent’s proposed defences of substantial truth (imputation 9(b)) and honest opinion (imputation 9(c)) would contravene Article 9' 'First respondent given leave to file and serve, within 12 days, a defence omitting the prohibited defences, reformulating contextual and other...