O'Shane v Harbour Radio Pty Ltd

The proceedings 4Ms O'Shane was formerly a Magistrate. She has recently retired. On 4 August 2011, Ms O'Shane commenced proceedings in this Court against Harbour Radio and Mr Jones. She sues them in defamation in respect of two sets of statements made by Mr Jones that were broadcast by Harbour Radio on 26 May 2011 and 6 June 2011 respectively. It is unnecessary to describe the content of those broadcasts. It suffices to state that Ms O'Shane has pleaded that the same four defamatory imputations were conveyed by each broadcast, namely that: "(a) [Ms O'Shane] is such a bad Magistrate that she should be removed from her office as a Magistrate. (b) [Ms O'Shane] failed in her duties as a Magistrate by delivering diabolically bad decisions. (c) [Ms O'Shane] failed in her duty as a Magistrate by delivering decisions which are wrong in law. (d) [Ms O'Shane] has been so grossly derelict in her duty as a Magistrate to deserve to be the subject of an adverse finding by the Judicial Commission." 5In her statement of claim Ms O'Shane has also pleaded that she has suffered aggravated damage by reason of her knowledge of, inter alia, the falsity of these imputations. 6Harbour Radio and Mr Jones have filed a defence to Ms O'Shane's statement of claim. It has had a number of iterations, the history of which is described in the Court of Appeal's judgment in O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315 ("O'Shane") at [1] to [13] and [20] to [27]. Ultimately, on 30 November 2012, a further amended defence was filed (see O'Shane at [27]). Amongst other matters, the further amended defence pleads that the imputations set out above were substantially true. It also denies the claim for aggravated damages. 7The particulars of the defence of substantial truth identify nine cases which were said to be heard and determined by Ms O'Shane whilst sitting as a magistrate. The judgments of Ms O'Shane in seven of those cases were overturned on appeal, namely McCormack v Langham (Supreme Court (NSW) Studdert J, 5 September 1991, unrep), Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713, Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21, Peters v Asplund [2008] NSWSC 1061, Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953, Director of Public Prosecutions (Cth) v Neamati [2007] NSWSC 746, and Director of Public Prosecutions v Lee [2006] NSWSC 270. 8The particulars identify various alleged "errors" on the part of Ms O'Shane in deciding these seven matters, most but not all of which were found on appeal. Further with some of those matters, such as Director of Public Prosecutions (DPP) (NSW) v Wililo, aspects of Ms O'Shane's conduct during the hearing are particularised as supporting the defence of substantial truth. 9The two other proceedings referred to in the particulars of the defence of substantial truth are R v Kanaan ("Kanaan") and Police v Jones ("Jones"). In Kanaan Ms O'Shane discharged the accused after a committal hearing. However an ex officio indictment was filed. The accused pleaded guilty and was sentenced (R v Kanaan [2006] NSWSC 539). The particulars allege that Ms O'Shane made a number of errors in her findings, and also that she "behaved disgracefully" in some respects during the committal hearing. 10In Police v Jones Ms O'Shane was said to have sentenced four women for maliciously damaging a billboard advertising bras. The proceedings occurred in 1993. The particulars contend that aspects of Ms O'Shane's reasons for imposing sentence reveal misconduct on her part, that she denied the prosecution procedural fairness, and that she otherwise decided the case while in a state of "furious rage" which was said to be contrary to her judicial oath.

The Court of Appeal proceedings 11The further amended defence was filed after various questions arising in the proceedings had been referred to the Court of Appeal. The referral was made as a consequence of Ms O'Shane applying to strike out an earlier version of Harbour Radio and Mr Jones' defence of substantial truth on the basis that the agitation of the issues it raised would infringe Ms O'Shane's immunity from civil suit in respect of matters arising from the performance of her judicial functions. This immunity is presently recognised by s 44B of the Judicial Officers Act. The majority of the Court of Appeal (Beazley P, McColl JA and Tobias AJA) rejected the contention that the immunity operated in that manner (O'Shane at [92], [131] and [243] respectively). The remaining two judges who constituted the Court of Appeal, Basten JA and McCallum J, went further and held that, as the imputations related to Ms O'Shane's conduct in carrying out judicial functions, she had no cause of action in defamation at all (O'Shane at [241] and [263] to [264] respectively). 12The Court of Appeal also addressed whether any aspect of Harbour Radio and Mr Jones' defence constituted an abuse of process by reason of its supposed tendency to invite the re-litigation of some of Ms O'Shane's decisions (O'Shane at [97]). In respect of the seven decisions which were particularised in the defence, and which had been the subject of an appeal to this Court, Beazley P held that it would not be an abuse of process "for the defendants to rely on the defence of truth in the manner particularised in the further amended defence in respect of [those] seven matters". This conclusion was said to relate "to the defendants' proof of alleged errors of law" (O'Shane at [117]). 13Her Honour also reached the same conclusion in relation to so much of the pleaded defence as alleged errors of law on the part of Ms O'Shane in relation to the seven decisions that were appealed, even though the relevant error pleaded was neither argued nor found by this Court on those appeals (O'Shane at [118]). Otherwise, the remaining particulars of truth including those concerning the Kanaan and Jones matters and those alleging misconduct were not said to raise any issue of abuse of process (O'Shane at [116]). Justice McColl and Tobias AJA agreed with Beazley P in respect of all of these issues (O'Shane at [131] and [243] respectively). 14The significance of the manner in which the defence of truth was particularised to Beazley P's conclusion on these issues cannot be understated. Her Honour repeatedly referred to the specific manner in which the further amended defence was pleaded as the basis for finding that the defence did not violate any principle of finality in litigation (see for example O'Shane at [117]). Further, it is clear that her Honour treated those particulars as governing not just what was to be proved about Ms O'Shane's conduct, but how it was to be proved. Thus, her Honour concluded (O'Shane at [120]): "Finally, it should be kept in mind that the defence of truth is a statutory defence to a claim in defamation and, within the constraints discussed, is a defence which it is permissible for the defendants to seek to prove. It is not oppressive to the plaintiff for the defendants to seek to do so. Indeed, it would be oppressive if the plaintiff was entitled to litigate her defamation proceedings, but at the same time for the defendants to be debarred from litigating an available statutory defence. I am not satisfied that the proposed manner of proof, which lies at the heart of the abuse, is an affront to the due administration of justice. In saying that, I reiterate that that conclusion has been reached on the form of the pleading, to which the defendants should be required to adhere unless the leave of the court is otherwise sought." (emphasis added)

The Judicial Commission 15The Commission is constituted by s 5 of the Judicial Officers Act. Under Part 6 of the Judicial Officers Act the Commission is conferred with certain responsibilities in relation to dealing with complaints made against judicial officers. I note the following features of that complaints system. 16First, a complaint can be made to the Commission about a judicial officer by "any person" (s 15(1)). It can also be initiated by a reference from the Minister responsible for the administration of the Judicial Officers Act (s 16(1)). 17Second, the subject matter of the complaint is one that "concerns or may concern the ability or behaviour of a judicial officer" (s 15(1)). Other provisions of the Judicial Officers Act make it clear that this can extend to conduct which constitutes or may constitute a criminal offence (s 15(6)), or can concern the judicial officer's "competence in performing judicial or official duties" (s 15(4)). 18Third, the complaint must be made in writing and identify the judicial officer concerned (s 17(2)). 19Fourth, s 15(2) of the Judicial Officers Act provides: "15 Complaints ... (2) The Commission shall not deal with a complaint (otherwise than to summarily dismiss it under section 20) unless it appears to the Commission that: (a) the matter, if substantiated, could justify parliamentary consideration of the removal of the judicial officer from office, or (b) although the matter, if substantiated, might not justify parliamentary consideration of the removal of the judicial officer from office, the matter warrants further examination on the ground that the matter may affect or may have affected the performance of judicial or official duties by the officer." 20Fifth, s 20 deals with the summary dismissal of complaints. The various bases on which the Commission can summarily dismiss a complaint are enumerated in s 20(1), including that it is frivolous, vexatious, trivial, etc. However, as noted by counsel for Harbour Radio and Mr Jones, Mr Richardson, the bases upon which a complaint might be summarily dismissed do not necessarily indicate that the complaint was without substance. Thus, for example, one basis upon which a complaint could be dismissed is that there was another means of redress available to the complainant (s 20(1)(e)), or that it relates to the "exercise of a judicial or other function that is or was subject to adequate appeal or review rights" (s 20(1)(f)). 21Sixth, s 18 of the Judicial Officers Act obliges the Commission to conduct a "preliminary examination" of a complaint. In doing so it can initiate enquiries. Its examination and enquiries are "as far as practicable to take place in private" (s 18(3)). After having conducted its examination, the Commission must either summarily dismiss the complaint (s 20(1)), refer it to the "Conduct Division" as constituted under Division 2 of Part 6 of the Act (s 21(1)), or refer it the relevant head of jurisdiction (s 21(2)). 22Seventh, I have already noted aspects of the power of summary dismissal. Sub-section 21(1) provides that if the complaint is not summarily dismissed, it must then be referred to the Conduct Division although the Commission can refer the complaint to the relevant head of jurisdiction "if the Commission thinks that, although the complaint appears to be wholly or partly substantiated, it does not justify the attention of the Conduct Division" (s 21(2)). 23Eighth, as noted Division 3 of Part 6 makes detailed provision for an enquiry by the Conduct Division into complaints that pass over the threshold for summary dismissal. The Conduct Division is constituted by three persons, two of whom are judicial officers, although one of those two may be a retired judicial officer. The third member is a community representative (s 22(2)). The Conduct Division is obliged to conduct an examination of the complaint referred to it (s 23(1)) and can hold hearings in connection with a complaint which may either be held in public or in private (s 24(1) and (2)). Provision is made for the receipt of evidence and the examination of witnesses called before the Conduct Division (s 24 and s 25). 24The Conduct Division is obliged to dismiss a complaint if they are of the opinion that either the complaint has not been substantiated, or that it otherwise should be dismissed on one or more of the grounds upon which the Commission could summarily dismiss a complaint (s 26). If the Conduct Division decides that a complaint is wholly or partly substantiated, but forms an opinion that the matter does not justify consideration being given to the removal of the judicial officer and therefore should be referred back to the relevant head of jurisdiction, then they must send a report to the relevant head setting out their conclusions (s 28(1)(b) and s 28(2)). 25If the Conduct Division considers that the complaint is wholly or partly substantiated and forms the opinion that the matter could justify parliamentary consideration of the removal of the judicial officer, then they "must present to the Governor a report setting out the Division's findings of fact and that opinion" (s 29(1)). The Conduct Division must also furnish a copy of the report to the Minister who is to lay it before both Houses of Parliament (s 29(3)). 26Finally, it is appropriate to note the terms of s 37 of the Judicial Officers Act, which provides: "37 Disclosure of information by members or officers of Commission (1) A member or officer of the Commission or Conduct Division, or a member of a committee of the Commission, shall not disclose any information obtained by the member or officer in the course of his or her office in relation to a complaint, unless the disclosure is made: (a) with the consent of the person from whom the information was obtained, (b) in connection with the administration or execution of this Act (except sections 8 and 9), (c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or (d) with other lawful excuse. (2) This section does not operate to render admissible in any proceedings any evidence that would not have been so admissible if this section had not been enacted. (3) A person who contravenes this section is guilty of an offence punishable, upon conviction, by a fine not exceeding 100 penalty units or imprisonment for a period not exceeding one year, or both. 27It was accepted that, if an officer or member of the Commission took steps to provide documents in answer to a subpoena issued by this Court, then that would amount to an "other lawful excuse" for the purposes of s 37(1)(d), and thus that officer would not breach s 37(1).

Material concerning complaints about the plaintiff 28Mr Richardson tendered certain media reports and judgments that made reference to the existence of complaints to the Commission about Ms O'Shane. Objection was taken to this material on the basis that the reports were hearsay and thus not evidence of the making of those complaints. The hearsay nature of the material can be accepted but I nevertheless admitted the material on the basis that it is capable of founding a reasonable belief that there were such complaints. The existence of such a belief negates the suggestion that the subpoenas were purely a "fishing expedition" to the extent that they were premised on the existence of any such complaints. 29One of the media reports is of a hearing of the Conduct Division of the Commission conducted in December 2012. The report states that Ms O'Shane appeared before the Conduct Division in respect of complaints made by the Attorney General of New South Wales and a senior police officer concerning her dealing with four cases during the period 2007 to 2012. The description of the subject matter of the hearing in the report suggests that three of the four cases were DPP v Wililo, DPP v Elskaf and DPP v Yeo. The fourth case is not described in the report. As explained above, the structure of the Judicial Officers Act is such that these matters could not reach a hearing before the Conduct Division, unless the Commission's preliminary examination had led it to form the opinion referred to in s 15(2)(a) or (b) above, and that otherwise the matter did not warrant referral to a relevant head of jurisdiction under s 21(2). 30Harbour Radio and Mr Jones also tendered a judgment of Dunford J given on 21 August 2000 in which his Honour upheld an appeal against an order for forfeiture of property that had been made by Ms O'Shane on the ground that the affected party had been denied procedural fairness (Jordan v O'Shane [2000] NSWSC 831) ("Jordan"). His Honour's judgment records Mr Jordan saying that he had lodged a complaint with the Commission against Ms O'Shane. There was also tendered an extract from a judgment of Smart AJ in O'Shane v John Fairfax Publications Pty Ltd [2004] NSWSC 140 in which his Honour referred (at [225]) to Ms O'Shane stating in her evidence "that there had been numerous complaints against her to the Judicial Commission" and (at [226]) that "consideration [had been] given to lodging a complaint" with the Commission in relation to her handling of the Kanaan matter. 31Although neither party made reference to s 91(1) of the Evidence Act 1995 (NSW) when these judgments were tendered, that provision would operate to preclude this material being tendered for the purpose of proving any fact in issue in those proceedings. Nevertheless, whatever the precise scope of s 91(1), it does not preclude the use of this material for the purpose I have identified above, namely as a basis for forming a reasonable belief that such complaints were made or may have been made (see Ainsworth v Burden [2005] NSWCA 174 at [103] to [104] per Hunt AJA, with whom Handley and McColl JJA agreed). 32The material tendered also included a media article dated 17 January 2007 which reported that the New South Wales Transport Minister had asked the Commission "to widen an investigation into Ms O'Shane to include her conduct in a case in which she dismissed charges against a man accused of spitting at rail staff". The article recounts that Railcorp had asked the Director of Public Prosecutions to consider appealing the ruling and that "[s]ecurity footage apparently shows the man abusing and spitting on the officers". Beyond this there is nothing specifying what the alleged misconduct was. The charges that were dismissed are not identified. This does not appear to be one of the nine particularised cases. There is nothing to suggest there was an appeal from this decision. 33In the end result I am satisfied that this material founds a reasonable belief that: (i) there have been a number of complaints to the Commission over a reasonably long period concerning Ms O'Shane; (ii) her handling of four cases was such as to warrant referral to a Conduct Division; (iii) that three of the cases so referred are those particularised in the defence of substantial truth; and (iv) that there is a reasonable possibility that a complaint was made concerning her conduct in the Kanaan matter. 34However, there is nothing to suggest that the Conduct Division has ever formed the opinion referred to in s 21(2) of the Judicial Officers Act in respect of Ms O'Shane. There is no suggestion of any report concerning Ms O'Shane having been provided to the Governor or to the Minister for laying before the Houses of Parliament. Further, there is the otherwise self evident fact that Ms O'Shane was not removed from office. 35Finally, it must be remembered that Ms O'Shane spent a considerable period of her life adjudicating cases presumably in which, like all litigation, at best there was usually only one winner and on many occasions there may have been none. It is notorious that litigation is capable of generating disgruntlement in losing parties, and a consequential sense of grievance against the umpire who decided the case against them. The possibility or even probability that losing litigants, even institutional ones, will lodge unmeritorious complaints needs to be steadily borne in mind.

Approach to subpoenas 36In Attorney General for New South Wales v Chidgey [2008] NSWCCA 65 ("Chidgey"), at [59] Beazley JA (as her Honour then was), with whom James and Kirby JJ agreed, reiterated that it is not sufficient for a party seeking production of documents pursuant to a subpoena to merely establish that the documents sought are or may be relevant to the issues in the proceedings. Her Honour approved the following statement by Simpson J (with whom Spigelman CJ and Studdert J agreed) in R v Saleam [1999] NSWCCA 86 at [11] as stating the relevant standard that must be met (Chidgey at [64]): "The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case." 37The second aspect of this test, namely that it is "on the cards" the documents sought will materially assist a party's case, warrants closer analysis. In Chidgey Beazley JA rejected the submission that a line of authority in Victoria which construed this phrase as being equivalent to a test requiring that there be a "reasonable possibility that the [documents sought] would materially assist the defence" should be followed (at [74]). Her Honour did not consider that test to be inconsistent with Saleam, but nevertheless rejected its adoption because her Honour considered that further elaboration of the phrase "on the cards" only invited confusion (Chidgey at [80]). Further, her Honour disapproved of a passage in a judgment of Adams J in Roads & Traffic Authority of NSW v Conolly [2003] NSWSC 327; 57 NSWLR 310, to the effect that if the material sought by a subpoena exists and is relevant to an issue in the proceedings "it will almost invariably be logically the case" that there will be the requisite chance that it will assist a party's case (cited in Chidgey at [77]). Her Honour considered that this statement was inconsistent with the proposition that merely establishing the relevance of the material sought was not sufficient to justify the issue of a subpoena (Chidgey at [79]). 38I was also referred to a passage from the judgment of Brereton J in Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 at [25] where his Honour stated the test of sufficiency to justify a subpoena as being that the material "could 'possibly throw light' on the issues in the substantive proceedings, or that it appears to be 'on the cards' that they will do so". Again, this approach appears to be inconsistent with the requirement that it be "on the cards" that the documents sought "will materially assist" a party's case (see ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [18]). It is this latter test that I must apply. 39Nevertheless, it is necessary to note that the "on the cards" test is applied prospectively and thus at a time when the party issuing the subpoena will usually not know what documents will be caught or what they will say. If they did, then they would probably not need to issue the subpoena in the first place. Further, the "on the cards" test does not deny the possibility, which may be a strong one, that the documents will not assist and may in fact damage the subpoenaing party's case. This is illustrated by the judgment of Gibbs CJ in Alister v R [1984] HCA 85; 154 CLR 404 ("Alister"), which was cited by Beazley JA in Chidgey at [65]ff as the source of the "on the cards" test. In Alister Gibbs CJ required production to the Court of any reports given to ASIO by an important Crown witness concerning the accused, even though there were no "ground[s] to suppose that any such reports were favourable to the applicant's case" and that "if one [was] to speculate [any such report] would be adverse to the applicants" (at [6]). This approach, in part at least, reflects the degree of speculation necessarily involved in this aspect of the test involving, as it does, an assessment in advance of the trial of the likelihood that documents which have not yet been produced or inspected will assist a party. 40Further, in a particular case it may be that it is "on the cards" that the documents sought will assist the case of both parties. It is not uncommon in adversarial litigation for both parties to consider that the one piece of evidence is supportive of their respective cases, especially as most litigation involves a contest over more than one factual issue. The same piece of evidence can sometimes cut both ways. Equally, the one source of material can often help both sides. A common example is a subpoena issued in personal injuries proceedings for the injured plaintiff's file concerning their admission to hospital immediately after the accident in question. Clearly the plaintiff would be allowed to subpoena the file as one could easily draw the conclusion that it was likely to be "on the cards" that the documents would materially assist their case. However, it would be counter-intuitive if it was concluded that the defendant could not seek the production of the same material to test, amongst other matters, the plaintiff's assertions as to what injuries were suffered and to see if any record was made by the hospital recording the plaintiff's version as to how the accident occurred. Thus in such a case it would be "on the cards" that the file would contain documents that would materially assist both parties' case.

The subpoena to the Commission 41The disputed subpoena to the Commission sought production of the following documents: "1. Any complaint to the Judicial Commission concerning Magistrate Patricia June O'Shane from 1993 to date. 2. Any reports, including reports on preliminary and other investigations into complaints concerning Magistrate Patricia June O'Shane from 1993 to date. 3. Any response to any complaint by Magistrate Patricia June O'Shane, or any statements provided by Ms O'Shane to the Judicial Commission in relation to any complaint, from 1993 to date. 4. Any determination or finding or document recording the result of an investigation into Magistrate Patricia June O'Shane, from 1993 to date, including: a) any summary dismissal; b) any reference to the conduct division; c) any report to the Governor; d) any report to the relevant head of jurisdiction; e) any supplied to Ms O'Shane herself." 42Thus the documents sought are not restricted to any specific time or to any specific case involving Ms O'Shane, such as the nine decisions particularised in the further amended defence. The documents sought potentially span a long period, given that the proceedings the subject of the appeal in McCormack v Langham were decided in September 1991. The Judicial Commission has been in operation since at least that time. 43Otherwise the documents sought reflect the complaint structure created by the Judicial Officers Act that I have already described. Paragraph 1 reflects the requirement in s 17 that a complaint must be made in writing. Paragraph 2 appears to seek the results of the preliminary examination that the Commission must undertake in respect of a complaint (s 18). Paragraph 3 reflects the obligation of the Commission to afford a judicial officer procedural fairness, and the fact that it can be expected that a judicial officer will respond to a complaint made against them. Paragraph 4 encompasses the various outcomes of a complaint that I have described. 44Mr Richardson sought to justify the subpoena on two related bases. First, he submitted that the documents sought had sufficient connection to the defence of substantial truth. Secondly, he submitted that the documents sought had sufficient connection to Ms O'Shane's claim for aggravated damages, which was said to have put in issue the falsity of the pleaded imputations on a wider basis than that raised by the defence of substantial truth. Further, to the extent that it was necessary for him to show that it was "on the cards" that the material would assist his client's case, Mr Richardson pointed to the fact that the Commission is a repository of material concerning allegations of poor behaviour in respect of judicial officers. Having regard to the material that I have referred to earlier, he submitted that it had been shown that it was "on the cards" that this material would assist in demonstrating his clients' defence that the imputation to the effect that Ms O'Shane was a bad Magistrate was substantially true, and disprove the falsity of that imputation which was a component of her claim for aggravated damages. 45Counsel for Ms O'Shane adopted the arguments of senior counsel for the Commission, Mr Clarke SC. I will address Mr Clarke SC's submissions shortly, but at this point I note that my findings as to the evidentiary relevance of the media reports involve a rejection of so much of his submissions that contended that it was speculation to even suppose the existence of any complaints against Ms O'Shane. Bearing in mind those findings, I will address the submissions by considering whether the subpoena is justified first by reference to the defence of substantial truth, and then by the claim for aggravated damages.

Defence of substantial truth 46The first question is whether the defence of substantial truth justifies the issue of a subpoena to the extent it seeks material extending beyond the nine particularised cases. I have already accepted that there is a basis for concluding that there were a number of complaints extending beyond those cases, such as those involving Mr Jordan and the complaints referred to by Ms O'Shane in giving evidence before Smart AJ. Mr Richardson submitted that it was "on the cards" that there were other complaints and, even if they did not lead to Ms O'Shane's removal, it is still "on the cards" that they will assist in establishing the truth of the imputations pleaded so as to meet the requisite test. 47The difficulty with this aspect of Mr Richardson's submissions is that it does not explain the nexus between the defence as particularised and so much of the material sought that extends beyond the nine cases. I have already set out an extract from the Court of Appeal's judgment in O'Shane concerning the approach to be adopted to that defence (at [14]). Harbour Radio and Mr Jones bear the onus of proving the substance of the imputations. To date they have indicated that they seek to do so by pointing to Ms O'Shane's conduct in nine cases and at present they are confined to those nine cases. No relevant connection between Ms O'Shane's conduct in any other case and that defence as particularised was identified during argument and I cannot discern any. 48In the end result Mr Richardson was reduced to identifying the significance of complaints about Ms O'Shane's conduct in other cases to the pleaded defence of substantial truth as follows: "... assuming we picked up from this subpoena another complaint, there would be no impediment to the defendant[s] making an application to amend to adding a 10th complaint so long as it was done if I can paraphrase in the manner as the others were done as outlined in paragraph 117 [of the Court of Appeal's judgment in O'Shane]." 49In fact, this submission reveals that in this respect the subpoena is truly a "fishing expedition". The only identified basis for seeking the material concerning complaints about unparticularised cases in relation to the defence of substantial truth is that it may provide material that can support an amendment to the particulars to raise further instances of alleged improper conduct on the part of Ms O'Shane. This reverses the proper course of litigation. Parties must first make allegations in a pleading and thus raise an issue for determination before they can seek to engage the various compulsive processes of evidence collection, such as issuing subpoenas. This process offers some protection to third parties by ensuring that they are only subjected to being required to comply with subpoenas which have a sufficient connection to an allegation which has been properly and clearly pleaded and responded to by the other party to the litigation. It follows that I do not accept that the pleading of substantial truth by Harbour Radio and Mr Jones can support the width of the subpoena to the extent it seeks documents concerning cases heard by Ms O'Shane extending beyond the nine particularised ones. 50The next question that arises is whether the defence of substantial truth can support the subpoena to the extent it seeks documents in respect of the nine particularised cases. As noted, the material before the Court is capable of founding a reasonable basis for believing that three of those cases were the subject of complaints which were treated with such seriousness as to warrant referral to the Conduct Division. Such a referral could only occur if the Commission formed at least one of the opinions in s 15(2)(a) or (b) and considered that it otherwise justified the attention of the Conduct Division. Further the material indicates a reasonable basis for believing that there might have been a complaint in respect of the Kanaan matter. I have already indicated that there was a reasonable basis for believing there were a number of other complaints. This could include the other five cases that are particularised in the amended defence, especially as the matters raised in respect of those cases suggest that there was something that might warrant a complaint being made. Further, the fact that some Conduct Division hearings are conducted in private means that the absence of any report of a hearing of the Conduct Division in relation to any complaint other than those which were reported is not indicative that such a hearing did not take place. 51Nevertheless, it is difficult to discern any relevant connection between proof of the errors of law or misconduct complained about in the particulars to the defence of substantial truth and the material sought to be obtained by the subpoena. 52In O'Shane, Beazley P contemplated the matters particularised in the defence of substantial truth being proved by the tender of the appeal judgments in the seven cases in which appeals were brought and the tender of the transcript and associated material concerning the hearing of those cases where either an error beyond that found by this Court on appeal or misconduct was alleged (O'Shane at [97]). The material sought to be obtained from the Commission, even in relation to the nine particularised cases, appears irrelevant to the establishment of the errors and misconduct particularised in the defence of substantial truth. The subpoena does not seek to capture any source material which seeks to prove the particular allegations. 53However, the material referred to by Beazley P in O'Shane at [97] may not be exhaustive of the type of material that may assist Harbour Radio and Mr Jones in establishing their defence in a manner consistent with their particulars. Even at this relatively early stage of the litigation it can be envisaged that there is scope for further material to be obtained which could bear upon the deliberations of the tribunal of fact at the point of considering whether such of the matters particularised for the nine cases that it finds are established warrant a conclusion that any one or more of the imputations pleaded are substantially true. If the tribunal of fact was to find that some or all of the particulars were made out, the question would then arise as to whether their establishment meant that the imputations were substantially true. Merely because Ms O'Shane, or any other judicial officer, made errors of law does not necessarily mean that they are "bad", deserving of removal from office, or failed in their duties, etc. If the position were otherwise, the judicial system would very quickly consume itself. 54In respect of the seven particularised decisions that were the subject of appeals and presently assuming that they were the subject of the complaints to the Commission, it could be expected that Ms O'Shane's response to any such complaint would address the circumstances in which the alleged error or misconduct occurred, and that she would provide an explanation for her conduct. Potentially such an explanation could play a significant role in any assessment of the ultimate question raised by the imputations as to her fitness and standing to be a judicial officer. For example, a belligerent response by a judicial officer to a finding by this Court that they had failed to afford procedural fairness may reveal such a lack of insight as to what is required to fulfil their duties as to raise an issue as to their fitness to remain in office. At the very least it would be material that could be relied on to rebut or at least test any suggestion that any error on the judicial officer's part was an excusable mistake. Further, a consideration of Ms O'Shane's response is unlikely to be of much benefit without considering the complaint that she was responding to. 55The complaint and Ms O'Shane's response are the documents sought by paragraphs 1 and 3 of the subpoena. Paragraphs 2 and 4 of the subpoena seek to capture any report of the Commission or a Conduct Division. Again this material is likely to include a discussion of the circumstances in which the alleged error or misconduct occurred and a summary or explanation of any response given by Ms O'Shane. Further, it is to be recalled that one aspect of imputation (d) is that Ms O'Shane's conduct was such as to warrant her being "the subject of an adverse finding by the Judicial Commission". To that end it is at least reasonably arguable that any material from the Commission adverting to whether her conduct in relation to any of the nine cases warrants such a finding may be relevant and admissible, or failing that at least of assistance, in the establishment of that part of imputation (d). 56It follows that I am satisfied that, to the extent the subpoena seeks documents in relation to the nine cases particularised in the defence of substantial truth, the subpoena is neither a "fishing expedition" or otherwise lacking a legitimate forensic purpose. There is a reasonable basis for believing that there is material which has a relevant connection to the defence of substantial truth. To reiterate, such material is likely to reveal Ms O'Shane's explanation of the circumstances in which any of the particularised errors or instances of misconduct were said to have occurred, and to be relevant to ascertaining whether any error or misconduct was such as to warrant an adverse finding of the kind referred to in imputation (d). 57However, Mr Clarke SC also submitted that, even if the Court was satisfied of those matters, Harbour Radio and Mr Jones still had to demonstrate that it was "on the cards" that the documents sought would materially assist their case. I have discussed this concept above. As noted, Mr Richardson pointed to the fact that the Commission was a repository of complaints as a matter indicating that it was "on the cards" that any material obtained would assist his clients. I do not accept that a reasonable belief that there have been complaints about one or more of the nine particularised cases to the Commission is by itself enough to satisfy this aspect of the test. As noted, Ms O'Shane performed a judicial function for over twenty years. It is likely that she has decided thousands of cases which, as noted, will at most have only had one winner. It is very likely that the performance of that task over such a long period will have generated such a sense of grievance amongst some losing litigants that they will lodge complaints. The mere fact that a complaint or number of complaints is lodged with the Commission does not, of itself, mean that it is "on the cards" that material concerning those complaints will support a defence that seeks to justify an imputation that a person was a "bad" judicial officer. 58However, there is other material suggesting that it is "on the cards" that material concerning any of the nine cases will materially assist Harbour Radio and Mr Jones. I have already noted that there is a reasonable basis for believing that three of the nine cases led to complaints which were considered to be of sufficient seriousness as to warrant referral to the Conduct Division. There is a reasonable basis for believing that there may have been a complaint in the Kanaan matter. There is a reasonable basis for believing that another unspecified matter which might have been one of the nine particularised cases was referred to the Conduct Division. Otherwise, as already stated, seven of the nine cases have been the subject of successful appeals. Some of the judgments are expressed in strong terms indicating that any complaint in respect of those seven cases may have had a reasonable basis. 59The combination of these factors is sufficient for the Court to be satisfied that it is "on the cards" that any documents caught by the subpoena in relation to the nine cases particularised in the defence of substantial truth will materially assist Harbour Radio and Mr Jones in establishing that defence.

Aggravated damages 60Apart from the pleading of truth, Mr Richardson also contended that the width of the subpoena could be supported by that part of Ms O'Shane's pleading which asserts that she is entitled to aggravated damages by reason of her knowledge of the falsity of the imputations said to be conveyed by the broadcasts. Mr Richardson referred to various authorities to the effect that the joinder of issue on this claim by his clients is capable of giving rise to an obligation on the part of Ms O'Shane to give discovery on the issue of the falsity of the imputations, even if a defence of truth is not pleaded (Tabe v Amalgamated TV Services (Court of Appeal (NSW), 7 December 1987, unrep), and Beran v Channel Seven Pty Ltd [2003] NSWSC 272 at [6] per Levine J) ("Beran"). It would seem to follow that, even where a defence of substantial truth is pleaded, this discovery obligation extends beyond the matters particularised in support of that defence. Nevertheless, the Court retains a discretion whether or not to order discovery and, if so, its scope (Beran at [6] and [37]). 61However, this is not an application for discovery from a party but an attempt to subpoena a wide class of documents from a third party. The processes are very different (National Employers' Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372). No application for discovery has yet been made in these proceedings. Generally, I am not disposed to order the compulsory production of a wide class of documents from a third party in advance of discovery occurring. 62One particular difference between discovery and subpoenas is that parties to litigation must give discovery of documents within specified classes irrespective of any assessment that the documents may be of assistance or hindrance to their or any other party's case. Thus any consideration of whether the discovery of a particular category of documents will be ordered does not involve a consideration of whether it is "on the cards" that any of the documents will assist any party's case. As noted, the body of authorities binding on me requires such an assessment in relation to a subpoena. 63In this case the material indicates that there is a reasonable basis for believing that there had been a number of complaints against Ms O'Shane. Leaving aside the nine particularised cases, with two exceptions however, there is nothing to indicate that any of them had any substance or led to any consideration by the Commission beyond summary dismissal. In particular, the material available in relation to Ms O'Shane's dismissal of the charges against the Railcorp staff rises no higher than disgruntlement with the outcome. No particular misconduct on the part of Ms O'Shane is identified. 64One of the exceptions is Jordan, which I have described above. The judgment of Dunford J indicates that there is a reasonable basis for believing there was a complaint and that there was a reasonable basis for complaining. The other exception arises out of the report of the Conduct Hearing noted above which indicates that there may be another complaint, which might or might not have extended beyond one of the nine particularised cases, which was considered to be of sufficient seriousness to pass the threshold in s 15(2) of the Judicial Officers Act. 65To the extent that the subpoena seeks material in relation to those two matters, then it has a legitimate forensic purpose in that it relates to the pleading of aggravated damages. It is also "on the cards" that it will materially assist Harbour Radio and Mr Jones' defence of that claim in the sense I have explained. However, to the extent that the subpoena seeks material covering complaints beyond those two cases (and the nine cases particularised), then I am not satisfied that it satisfies the "on the cards" test. For the reasons I have already explained, the mere fact that there might be other complaints and that the Commission is the repository of complaints about allegedly poor behaviour of judicial officers, does not of itself mean that it is "on the cards" that any such complaint will assist Harbour Radio and Mr Jones.

Post-broadcast conduct 66Mr Clarke SC also submitted that, to the extent that the subpoena sought material concerning conduct engaged in by Ms O'Shane after the date of the broadcast, then it could not have a legitimate forensic purpose. He contended that the nature of the imputations was such that Harbour Radio and Mr Jones could not point to any alleged misconduct by Ms O'Shane after the time of the broadcasts to justify what was said about her. 67Mr Richardson disputed this. The parties referred me to the passage in Habib v Nationwide News Pty Ltd [2010] NSWCA 34; 76 NSWLR 299 at [311] to [335] ("Habib"). In light of the findings that I have already made, this debate falls away except that one of the nine cases particularised, DPP v Wililo, was heard and determined in January 2012, which was well after the broadcasts in question. However, I do not propose to resolve any pleading dispute when determining whether the subpoena should be set aside. At this point it is not sufficiently obvious that the judgment in Habib has the result that Mr Jones and Harbour Radio's inclusion in the particulars of a reference to DPP v Wililo was impermissible, such that they should have their subpoena set aside to the extent it seeks material in relation to that case.

Relief 68Implicit in the above analysis is that, even though I consider that the class of documents sought by the subpoena is too wide, I will not set aside the subpoena in its entirety but only in part. It would have been open to adopt a stricter approach and set it aside completely, and leave it to Harbour Radio and Mr Jones to issue another one. However, the parties need to move the litigation forward and the relevant limiting order is not difficult to frame. 69As noted, the Commission wishes to consider whether to object to producing of some or all of the documents on the grounds of public interest immunity. To enable this to occur, I will amend the return date for the production of documents in answer to the subpoena to 18 March 2014 and grant the parties liberty to apply. If there is to be a debate about public interest immunity, the parties should liaise between themselves to facilitate any debate on that issue occurring during the sitting of the Defamation List commencing in the week of 3 March 2014. If that is not possible, then they can exercise the liberty to apply. 70I will not make any orders for costs of the notices of motion at this point, as it may be affected by any debate concerning public interest immunity. For the benefit of the parties, I can indicate that my prima facie view is that, to this point, the parties should bear their own costs of the debate concerning this subpoena. If a claim of public interest immunity is not pursued, and if any party or the Commission wishes to contend for a different order, then they should liaise with the other parties to fix a timetable for the exchange of brief written submissions on costs. 71Accordingly the Court orders that: (1)the subpoena dated 12 December 2013 addressed to the Judicial Commission of New South Wales be set aside other than to the extent it seeks documents in relation to any complaint: (a)concerning the plaintiff's conduct of the nine cases particularised in paragraph 10 of the Further Amended Defence filed 30 November 2012; (b)concerning the plaintiff's conduct of the proceedings the subject of the appeal in Jordan v O'Shane [2000] NSWSC 831; and (c)concerning the plaintiff that was the subject of a hearing in the Conduct Division of the Judicial Commission on or about 18 December 2012. (2)The notice of motion filed by the Judicial Commission on 17 January 2014 be otherwise dismissed. (3)The notice of motion filed by the plaintiff on 24 January 2014 be otherwise dismissed. (4)Extend the time for compliance by the Judicial Commission with the subpoena dated 12 December 2013 to 18 March 2014 at 9:00am. (5)The parties have liberty to apply.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2014