An interesting decision of a 5-member NSW Court of Appeal in O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315 http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=167298 deals with issues of judicial immunity and defamation. Pat O'Shane, a former magistrate a number of whose decisions were controversial, is suing the equally controversial radio presenter Alan Jones for comments that a number of her decisions were "diabolical and wrong". This case involves a strike out action based on some interesting issues:

- can a judicial officer even sue for defamation where what was said relates to the performance of their judicial functions? By 3-2 the CA here say that they can, so long as the comments are made outside court and afterwards (comments made in the face of the court have to be dealt with as contempt). The majority so distinguish the old NSW decision of Troughton v McIntosh (1896) 17 NSWR(L) 334; but in dissent Basten JA and McCallum J (who was hearing the trial and joined in the appeal hearing) say that the principle of Troughton should be extended to prevent judicial officers suing at all in these cases.

- in an action of this sort, can the defendants plead a defence of "truth", even if this involves to some extent "relitigating" the original proceedings? Here the magistrate attempted to plead that the doctrine of "judicial immunity", used of course as a "shield" in attempted civil actions against judges, could also function as a "sword" to strike out the defence of truth in these sort of proceedings by a judge. The majority who allowed the claim to proceed rejected this attempted application of the doctrine of judicial immunity, and said that in theory evidence could be led (from transcripts and other sources) as to what happened in the trials to allow a defence of truth to be possibly made out.

- the majority also needed to comment on a claim that, if the doctrine of judicial immunity had operated in the way claimed by the magistrate, this would have amounted to a fetter on the constitutionally implied right to freedom of speech on political matters operating under the Australian Constitution. The majority rejected this proposition, saying that (to quote the headnote) "The discussion about the discharge by a judicial officer of their function in a particular case is not a discussion concerning political or governmental matters in the relevant sense: [124]-[126], [131], [243]".

The trial will continue, unless of course there is an appeal to the High Court in the meantime. I am not sure yet whether the decision has any implications for the interesting arguments recently made by list member John Murphy "Rethinking tortious immunity for judicial acts" Legal Studies Volume 33, Issue 3, pages 455–477, September 2013, but at least the decision is consistent with the view that "judicial immunity" is a more complicated doctrine than it seems!

Regards

Neil