Criticise a Judge? Can the Judge Sue you?

On September 24 this year five justices of the NSW Court of Appeal grappled with the issue of whether judicial officers should continue to allow critics of judges to be sued for defamation, when all the critic had been doing was criticising a judge’s performance as a judicial officer.
Of the five judges who heard the case, two of them said that a judicial officer had no cause of action, while the other three said the opposite – that judges should continue to be able to sue.

The case concerned a lawsuit that Magistrate Pat O’Shane bought against Harbour Radio Pty Ltd (Harbour Radio) and the second defendant, Alan Belford Jones, in respect of alleged defamatory comments made and published by the Alan Jones and Harbour Radio about O’Shane’s conduct as and capacity to be a magistrate. 

By way of response, Jones and Harbour Radio said that the comments made weren’t defamatory because they were true.
O’Shane claimed she was defamed on two occasions.  Firstly, she said she was defamed when Jones said on a radio program on 27 May 2011, at approximately 6:44 am:
                 
“My understanding is the complaints [against Maloney LCM] are in respect to what are said to be inappropriate comments. My understanding is there’s no reference to any wrong decisions based on law. But here’s the rub. Pat O’Shane can deliver the most diabolical and wrong decisions in law, and they go through to the keeper, Pat O’Shane.”
The second matter complained of was contained in statements made by on air on 6 June 2011,
“… I said last week, Pat O’Shane can deliver the most diabolical and wrong judgments at law and they just keep going through to the keeper.
Now Greg Smith most probably has limited powers as Attorney-General, but is [Maloney LCM] going to be forced to front the Parliament to defend himself? Pat O’Shane still strides the corridors of the Magistrates Courts.”
O’Shane claimed damages including aggravated damages, costs and interest.