Entertainer friendlyjordies has lost his bid for a judge to strike out part of a defamation case brought against him by NSW Deputy Premier John Barilaro.
The application by Jordan Shanks-Markovina, known as friendlyjordies, related to the MP’s claim that the entertainer defamed him by claiming he committed perjury nine times and should be jailed for it.
His lawyers argued he wouldn’t receive a fair trial as he couldn’t defend those two imputations because his defence would breach parliamentary privilege.
The alleged perjury was said to have happened at a parliamentary committee.
Mr Barilaro is suing Mr Shanks-Markovina and Google, which owns YouTube, over two videos, titled bruz and Secret Dictatorship, published in September and October 2020.
The NSW Nationals leader says the first video insinuated he was a “corrupt conman” and had “so conducted himself in committing perjury nine times that he should be gaoled”.
In the Federal Court on Friday, Justice Steven Rares refused to stay the case in relation to, or strike out, the two imputations.
Mr Shanks-Markovina wanted to argue that the imputation that Mr Barilaro committed perjury nine times was substantially true, and that the imputation he deserved to be jailed for that was his honest opinion relating to a matter of public interest.
The public interest was said to be what Mr Barilaro had said in 2018 in evidence to a committee of the NSW Legislative Council and was based on his evidence.
“However, Mr Shanks recognised that unless the NSW Parliament waives parliamentary privilege, he cannot impeach or question what Mr Barilaro said in his evidence to the committee,” the judge said.
In concluding that the proposed defences would breach parliamentary privilege, the judge said he could not be allowed to rely on them at the present time or until parliamentary privilege was waived.
“The question then arises whether it is fair that Mr Barilaro can still rely on those two imputations, even though Mr Shanks has no defence to them that he can rely on in this court.”
Justice Rares said Mr Shanks-Markovina chose the way in which he published the bruz video, which appeared to have been scripted and produced with considerable technical skills and support.
It was not “a spontaneous or unprepared publication” and he was not responding to an attack made by Mr Barilaro on him under parliamentary privilege.
Rather than being unfair that parliamentary privilege prevented him from relying on his defences, the judge said it would be unfair to deprive Mr Barilaro of the right “to vindicate his reputation that Mr Shanks attacked”.
“It would be an affront to justice if a publisher could choose to question or impeach proceedings in Parliament and, by doing so, create for themselves an effective immunity from suit by the member or person attacked.
“Such a result would convert Parliamentary privilege into an instrument of oppression.”
The judge also concluded that the proposed defence overall “is pleaded defectively”, but allowed him 14 days in which to file a new defence.
At a later date, the judge will hear an application by Mr Shanks-Markovina for the ultimate hearing to be held before a jury rather than a judge.