THE state government has intervened in the defamation case brought by the magistrate Pat O'Shane against Radio 2GB over comments made by its top-rating broadcaster Alan Jones.
Ms O'Shane is suing Harbour Radio Pty Ltd and Jones, who told 2GB listeners in May last year that she ''can deliver the most diabolical and wrong decisions in law, and they go through to the keeper''.
She claims the comments defamed her because they implied she had failed in her duties as a magistrate by delivering decisions which were bad in law and that she deserved to be removed from her position.
Harbour Radio and Jones are defending the case partly on the basis that what was said in the broadcast was ''substantially true''.
In the NSW Court of Appeal yesterday, Bruce McClintock, SC, for Ms O'Shane, attempted to argue that as a local court magistrate, his client should be extended ''judicial immunity''.
This could mean the ''truth'' defence was not available and should be struck out. He also said the defence was an abuse of process.
'''Diabolical' is plainly a comment, not a statement of fact,'' Mr McClintock said.
Michael Sexton, SC, for the Attorney-General, Greg Smith, argued against Ms O'Shane saying it would not be fair for her to be in a "special position" be-cause she could claim judicial immunity when other litigants could not.
The station denies the comments are capable of being defamatory and has requested a trial by jury.
However, it says if a jury was to find that Ms O'Shane had been defamed, there were nine ''notorious'' cases in her 25-year career that justified Jones's comments.
This includes Ms O'Shane's decision in 1999 to dismiss the charge against Michael Kanaan of maliciously discharging a loaded gun with intent to cause grievous bodily harm to a police officer. She described the police officers as ''irresponsible, stupid, reckless and foolhardy''.
The DPP decided to press charges anyway and Kanaan, who is serving three life sentences for murder, was ultimately convicted.
And earlier this year the Attorney-General made a complaint to the Judicial Commission about Ms O'Shane after she dismissed the case of Kasian Wililo, who was accused of assaulting a paramedic. During the hearing, in January, she suggested the paramedic involved in the case, Christopher Martin, did not like ''blacks''.
The complaint was referred to the commission's conduct division but has not yet been resolved. The decision to dismiss Mr Wililo's assault charge was overturned by the Supreme Court in May.
The issues were not determined by the court yesterday, and the case will return to court next month.