The decision of Beech-Jones J on 6 April 2018 in Kostov V Gibson [2018] NSWSC 428 illustrates that a New South Wales District Court Judge has absolute privilege in respect of matters recorded in a judgment that might be defamatory pursuant to s.27 of the Defamation Act 2005 (NSW), and that this is so whether or not they were activated by malice.

Summary dismissal was ordered of the plaintiff’s claim, with Beech-Jones J holding at [10]:

“As I have stated a perusal of the amended statement of claim makes it clear that the matters complained of are matters published in the course of a proceeding in an Australian court specifically the publication of matters in a judgment as referred to in s 27(2)(b)(iii) [of the Defamation Act 2005 (NSW)]. It follows that there could not be a clearer case of absolute privilege than that which is raised by Ms Kostov’s amended statement of claim. There is no scope for seeking to resist that conclusion by alleging any form of mala fides on the part of her Honour in performing her judicial function in deciding Ms Kostov’s proceedings. In these circumstances, it is not necessary to explore any further question as to whether the judicial immunity at common law for the conduct of judges in court other than a Superior Court is qualified by a mala fides exception.”