Barilaro v Shanks-Markovina

From Wikipedia, the free encyclopedia

Barilaro v Shanks-Markovina
CourtFederal Court of Australia
Full case nameJohn Barilaro v Jordan Shanks-Markovina & anor[1]
Decided
  • 9 July 2021 (2021-07-09)
  • 13 August 2021 (2021-08-13)
  • 21 August 2021 (2021-08-21)
Citation(s)
Court membership
Judge(s) sittingSteven Rares
Keywords
  • Practice and procedure
  • Constitutional law
  • Parliamentary privilege

Barilaro v Google (formally Barilaro v Shanks-Markovina) is an ongoing defamation court case currently before the Federal Court of Australia.[2][3] The case revolves around claims that two videos published on the friendlyjordies YouTube channel brought the then Deputy Premier of New South Wales, John Barilaro, into public disrepute, odium, ridicule and contempt.[4] Barilaro resigned his seat of Monaro citing this case being ongoing as a reason. The resignation caused a by-election in that seat.[5][6]

Barilaro original filed the lawsuit against Jordan Shanks-Markovina as the person behind the allegedly defamatory videos and Google as the host of the videos via its YouTube service. The case against Shanks-Markovina was settled in November 2021 with Shanks-Markovina apologizing in court for allegedly offensive remarks made in the videos. The case against Google are still scheduled for trial in March.[7]

Background[]

External video
The disputed videos
video icon bruz
video icon Secret Dictatorship

Jordan Shanks-Markovina released on the friendlyjordies channel a video entitled "bruz" of 14 September 2020, and another entitled "Secret Dictatorship" on 21 October 2020.[8] Furthermore, he gate crashed Barilaro's event dressed up as video game character Luigi and started dancing.

On 27 May 2021 Barilaro initiated proceedings in the Federal Court of Australia initiating a defamation case against Shanks-Markovina and Google claiming the two videos were defamatory of him.[1] He was able to present in person, or serve, the required documents to Shanks-Markovina who is ordinarily resident in Australia, but required the leave, or permission, of the court to serve those documents to Google at their headquarters in the United States. On 9 July 2021 Justice Steven Rares granted leave for Google to be served the required documents citing rules 10.42 and 1.43 of the Federal Court Rules 2011.[2] Google formally acknowledge to the court they had received the required documents.[1]

Rares declined to consider defences relating to Barilaro's actions before a committee of the Legislative Council as they would be a breach of parliamentary privilege contrary to Article 9 of the Bill of Rights 1688 (Eng) as law in New South Wales. He permitted Shanks-Markovina to file an amended defence omitting the prohibited defences and repleading the remaining defences in a more appropriate form.[3] Under orders supplemental to the judgement delivered all sides were required to "serve outlines of evidence of witnesses on issues on which he or it bears the onus on or before 4pm on 24 September 2021" and "outlines of evidence of witnesses in reply on or before 4:00pm on 14 October 2021".[9]

On 31 August Rares permitted the amended defence to be filed by September 3 and for Barilaro to file a reply a week later. The application for a jury trial was denied. Both Shanks-Markovina and Google were ordered to pay with respect to this particular application.[10][11] Google was allowed a small extension of time to file and serve "outlines of evidence of witnesses on issues on which it bears the onus be extended to 4:00pm on 25 September 2021" and "any additional outline of evidence in relation to the second matter complained of on or before 4:00pm 29 September 2021" through a consent order dated September 27, 2021.[12][13]

Barilaro resigned as Deputy Premier of New South Wales and as member for Monaro in October 2021 citing this case as one of the reasons for his resignation.[5][6]

A case management hearing originally scheduled for October 15[9] was postponed by three weeks. A mediation session has been scheduled for October 26.[14][1]

Parties[]

John Barilaro was the Former Deputy Premier of New South Wales.
Google owns the YouTube service.
  • John Barilaro is the applicant. He was the Deputy Premier of New South Wales at the time of original filing of the case.[8]
  • Jordan Shanks-Markovina is the first respondent. He is the face of the Friendlyjordies YouTube channel.
  • Google Inc is the second respondent. They own the YouTube website.[15]

Claims[]

Barilaro filed a complaint before the Federal Court claiming that two videos published on the friendlyjordies Youtube channel unreasonably defamed him.[2]

In his pleadings Barilaro claimed that the first video, the bruz video, was defamatory because it claimed that he:[16][17]

  • "is a corrupt conman" (in the complaint and judgments, imputation 9(a))
  • "committed perjury nine times" (imputation 9(b))
  • "so conducted himself in committing perjury nine times that he should be gaoled" (imputation 9(c))
  • "corruptly gave $3.3 million to a beef company" (imputation 9(d))
  • "corruptly voted against a Royal Commission into water theft" (imputation 9(e))

For the second video, the Secret Dictatorship video, Barilaro claims that the defamatory imputations were that he has:[18][17]

  • "acted corruptly by engaging in the blackmailing of councillors" (imputation 15(a))
  • "acted corruptly by engaging in the blackmailing of councillors using taxpayer money" (imputation 15(b))
  • "pocketed millions of dollars which have been stolen from the Narrandera Shire Council" (imputation 15(c))

Defences[]

Respondent Shanks-Markovina put forward several defences centring on substantial truth, contextual truth, and honest opinion. These defences were accepted in part, found to be deficient in part and ordered to be replead, or being found to be unable to be plead unless Parliamentary Privilege was waived.[19]

He plead "a defence under s31 of the [Defamation] Act [2005 (NSW)] that each of imputations 9(a), 9(c) and, if either or both are found to have been conveyed, 9(d) and 9(e), each was an expression of Mr Shanks’ opinion that related to a matter of public interest and was based on proper material."[20]

With respect to imputation 9(b) Shanks-Markovina proposed defence of justification would involve impeaching or questioning in the Federal Court what Mr Barilaro said in the proceedings of a committee of the New South Wales Legislative Council. Rares noted that this was "because that defence accuses him of committing perjury in those proceedings. The defence of justification to that imputation cannot be pleaded because it infringes Art 9. Had the defence been filed, I would have been bound to strike it out."[3]

Respondent Google plead defences of qualified privilege and honest opinion, and asked the court for trial before a jury.[21] Both Shanks-Markovina and Google were ordered to pay with respect to this particular application.[10]

References[]

  1. ^ a b c d "File details - applications for file". Archived from the original on 30 August 2021. Retrieved 1 September 2021.
  2. ^ a b c Barilaro v Shanks-Markovina (No. 1) [2021] FCA 789
  3. ^ a b c Barilaro v Shanks-Markovina (No. 2) [2021] FCA 950
  4. ^ Antrobus, Blake (9 July 2021). "Truth defence in YouTuber case". News.com.au. Archived from the original on 22 August 2021. Retrieved 23 August 2021.
  5. ^ a b Tsikas, AAP: Mick (3 October 2021). "John Barilaro resigns as NSW Deputy Premier, will also leave Parliament". ABC News. Retrieved 3 October 2021.
  6. ^ a b "NSW deputy premier John Barilaro resigns from politics days after Berejiklian quits". the Guardian. 4 October 2021. Retrieved 13 October 2021.
  7. ^ McKinnell, Jamie (5 November 2021). "Friendlyjordies apologises to John Barilaro, settles defamation suit". ABC News. Retrieved 5 November 2021.
  8. ^ a b Mitchell, Georgina (28 May 2021). "John Barilaro sues YouTube comedian Friendlyjordies for defamation". The Sydney Morning Herald. Archived from the original on 28 June 2021. Retrieved 23 August 2021.
  9. ^ a b Orders of Rares J in Barilaro v Shanks-Markovina (Federal Court of Australia, NSD484/2021, 13 August 2021)
  10. ^ a b Barilaro v Shanks-Markovina (No 3) [2021] FCA 1100 (31 August 2021), Federal Court of Australia
  11. ^ Mitchell, Georgina (31 August 2021). "Jordan Shanks denied jury trial in Barilaro defamation case". The Sydney Morning Herald. Archived from the original on 31 August 2021. Retrieved 31 August 2021.
  12. ^ Orders of Rares J in Barilaro v Shanks-Markovina (Federal Court of Australia, NSD484/2021, 27 September 2021)
  13. ^ Cochrane, Joanne (28 September 2021). "New Orders issued - barilaro v @friendlyjordies & google". Joanne Cochrane. YouTube. Retrieved 28 September 2021.
  14. ^ Orders of Rares J in Barilaro v Shanks-Markovina (Federal Court of Australia, NSD484/2021, 7 October 2021)
  15. ^ Antrobus, Blake (9 July 2021). "Friendly Jordies hits back at Barilaro". News.com.au. Archived from the original on 23 August 2021. Retrieved 30 August 2021.
  16. ^ Barilaro v Shanks-Markovina (No. 2) [2021] FCA 950 at 13
  17. ^ a b Bloemendal, Ian; Rose, Adam; Utz, Clayton (2 September 2021). "YouTuber's proposed defamation defences knocked down by Parliamentary privilege". Lexology. Archived from the original on 15 October 2021. Retrieved 15 October 2021.
  18. ^ Barilaro v Shanks-Markovina (No. 2) [2021] FCA 950 at 14
  19. ^ McKinnell, Jamie (13 August 2021). "Friendlyjordies defence rejected in case brought by John Barilaro". www.abc.net.au. Archived from the original on 7 September 2021. Retrieved 7 September 2021.
  20. ^ Barilaro v Shanks-Markovina (No. 2) [2021] FCA 950 at 15
  21. ^ Mitchell, Georgina (13 August 2021). "Jordan Shanks loses preliminary fight in John Barilaro defamation case". The Sydney Morning Herald. Archived from the original on 25 August 2021. Retrieved 25 August 2021.

External links[]

Retrieved from ""