Della Bosca v Arena [1999] NSWSC 1057

Della Bosca v Arena [1999] NSWSC 1057

The defendant's application to strike out claims based on statements to party caucus on the grounds of absolute privilege fails because the question of privilege for caucus proceedings is arguable and not settled. The case should not be stayed at this stage because whether it will improperly canvass Hansard or impeach Parliamentary proceedings depends on the manner of the plaintiff’s proof at trial, which may be permissible if it is limited to establishing matters of history. Some amendments to pleadings are required for clarity and compliance with court rules.

Parties
Plaintiff: John Della Bosca; Defendant: Franca Arena
Jurisdiction
Australia
Judgment Date
27 October 1999
Procedural Posture
Defamation / Application to Strike Out/amend Pleadings and for Permanent Stay
Outcome
Orders 1 and 2 in the Notice of Motion are refused; Order 3 is granted with directions for amendment of pleadings; costs awarded substantially to the plaintiff.
Legal Topics
Absolute Privilege, Parliamentary Proceedings, Imputations, Application to Strike Out Pleadings, Article 9 of the Bill of Rights 1689
Defamation Parliamentary Privilege Absolute Privilege Parliamentary Proceedings Imputations Application to Strike Out Pleadings Article 9 of the Bill of Rights 1689

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Parties

John Della Bosca

Plaintiff

Franca Arena

Defendant

Procedural Posture

Defamation / Application to Strike Out/amend Pleadings and for Permanent Stay

Legal Issues

  1. 1 Whether statements made to ALP Caucus are protected by absolute privilege
  2. 2 Whether the proceedings should be permanently stayed on the basis that causes of action canvass Hansard
  3. 3 Whether the plaintiff may rely upon statements in Parliament as a matter of history without infringing privilege

Ratio Decidendi

The defendant's application to strike out claims based on statements to party caucus on the grounds of absolute privilege fails because the question of privilege for caucus proceedings is arguable and not settled. The case should not be stayed at this stage because whether it will improperly canvass Hansard or impeach Parliamentary proceedings depends on the manner of the plaintiff’s proof at trial, which may be permissible if it is limited to establishing matters of history. Some amendments to pleadings are required for clarity and compliance with court rules.

Court Disposition

Orders 1 and 2 in the Notice of Motion are refused; Order 3 is granted with directions for amendment of pleadings; costs awarded substantially to the plaintiff.

Orders

  • Orders 1 and 2 in the Notice of Motion are refused.
  • Order 3 in the Notice of Motion is made: the plaintiff is to file a Further Amended Statement of Claim within 14 days.