KRISS v JOHN FAIRFAX PUBLICATIONS PTY LTD

JOHN FAIRFAX PUBLICATIONS PTY LTD (Defendant) FILE NUMBER(S) : SC 20535 OF 2002 C Evatt (Plaintiff) COUNSEL : R Glasson (Defendant) H M Symonds & Britten (Plaintiff) SOLICITORS : Freehills (Defendant)

[2003] NSWSC 319 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

John Fairfax Publications Pty Ltd (Defendant)

JUDGMENT (Imputations - capacity - form) 1 The plaintiff sues the defendant for damages for defamation. The article of which he has complains was published in "The Sydney Morning Herald" on 2 November 2000.

2 The text of the matter complained of is set out in appendix A hereto. 3 The plaintiff contends that in its natural and ordinary meaning the matter complained of carries the following defamatory imputations: 3(a) The Plaintiff is unfit to be a barrister (paragraphs 2, 3, 4, 5, 6 & 8). (b) The most appropriate client for the Plaintiff is Jodee Rich being a person who has a reputation for sharp and dishonest business practices (paragraphs 2, 3, 4 5, 6 & 8). (c) The Plaintiff's readmission as a barrister came as a shock because it was undeserved (paragraphs 2, 3, 4 5, 6 & 8). (d) The Plaintiff gave shoddy financial legal advice to a Mrs Bach (paragraph 5). (e) The Plaintiff was made bankrupt by the Bar Association because he did not pay $100,000 costs (paragraph 6). 4 Imputation 3(d) is not challenged. 5 By paragraph 4 of the statement of claim the plaintiff pleads imputation (b) as a true innuendo. He relies upon the intrinsic facts: "That Jodee Rich had a reputation for sharp and dishonest business practices was known to the general public following widespread media reporting of Mr Rich's business affairs". 6 There is also a count in injurious falsehood (paragraph 5) the relevant particulars of falsity being (others having been abandoned): (a) The Plaintiff was not struck off for some shoddy legal-financial advice to Mrs Bach. (b) The Plaintiff was not bankrupted by the Bar Association because he did not pay $100,000 costs . 7 Pursuant to SCR Pt 31 r 2 a separate trial as to legal issues as to capacity has taken place. Objections also were taken as to the form of the imputations pleaded. 8 As to imputation 3(a), "The Plaintiff is unfit to be a barrister", the defendant argues that the matter complained of is simply incapable as a matter of law of carrying it. There is certainly no express allegation in the matter complained of that the plaintiff was unfit. Indeed the overall impression to be gained from the publication of the plaintiff is not that he was unfit but rather that his readmission to the Bar was contrary to the flow of "traffic heading the other way". That traffic in the other direction was made up of barristers who had been struck off by reason of either failing to file a tax return or being bankrupted by the Tax Office. There is nothing in the article that equates Mr Kriss with the persons referred to in it other than the statement of fact that he was "bankrupted". The article makes clear that Cooper AJ had said that there was no suggestion that the plaintiff's bankruptcy involved any moral turpitude and that in every respect he was a fit and proper person to be a barrister. The notion of "turn up for the books" and "marvel" is referable merely to the plaintiff being readmitted to the Bar, having been, inter alia, bankrupted, when the "traffic" was constituted by members of the Bar being struck off. Whilst it might be more pertinent to imputation (c), the "surprise" is that contrary to the recent trend, here we have a barrister who is being readmitted having been struck off. 9 The defendant also argues that the imputation is rhetorical, founded in the statements made in that regard by Hunt J in Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 at 270-271 and 272E-G. I do not consider the imputation as a matter of form to be rhetorical or otherwise by reference to the other imputations pleaded. It is simply incapable of being carried and I so hold. 10 As to imputation 3(b), "The most appropriate client for the Plaintiff is Jodee Rich being a person who has a reputation for sharp and dishonest business practices", this is incapable of being carried by the matter complained of. It says nothing by way of the attribution of an act or condition to the plaintiff. It is little different to suggesting that for the most prominent member of the criminal Bar an appropriate client is a person against whom there is an overwhelming case of likely conviction for serial murder. In its natural and ordinary meaning this imputation simply cannot be available and I so hold. 11 As to imputation 3(c), "The Plaintiff's readmission as a barrister came as a shock because it was undeserved" it is contended for the defendant that it is both bad in form and incapable of being carried. As to the latter aspect I have already referred to the phrase "turn up for the books" and the use of the word "marvel" which barely go some way to explain the notion of "shock". There is nothing, however, in the matter complained of that goes to the issue of the readmission being "undeserved". On the contrary, the remarks of Cooper AJ are in the most glowing terms. The matter complained of is incapable of carrying imputation 3(c). 12 As to imputation 3(e), "The Plaintiff was made bankrupt by the Bar Association because he did not pay $100,000 costs", there are two issues. It is said that this imputation is bad in form because it does not specify the precise act or condition attributed to the plaintiff defamatory of him. With this I am not really concerned. The issue is really whether it is capable of arising in the terms expressed in the imputation and if it is, whether it is capable of being defamatory. The matter complained of states that the plaintiff "couldn't" pay the $100,000 costs (and therefore it is to be inferred that he did not; thus his bankruptcy). An imputation that properly and fairly represents the language of the matter complained of in this context would be to the effect that the plaintiff was bankrupted because he could not pay the costs. Whether on the basis of the imputation presently pleaded or along the lines suggested by me, this is a case where the principles enunciated by Mason P in Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165 would apply. The ordinary reasonable reader could not understand any such statement, by itself or in context, as being defamatory. I hold that the matter complained of is incapable of carrying the imputation as pleaded. 13 The true innuendo, in the same terms as imputation 3(b), even if the requisite facts were particularised and established, would not go to support an imputation that attributes any act or condition to the plaintiff. It is incapable of being carried. 14 I acknowledge the difficulties confronting the plaintiff in pleading imputations arising from this matter complained of save for that one that is not in issue. However the plaintiff should be given another chance and thus be granted leave to file an amended statement of claim. The defendant no doubt will then consider its position with or without further correspondence in relation to the allegations of falsity and malice with respect to the second cause of action sued upon. 15 In the course of submissions (and this is an undesirable approach) Mr Evatt indicated that in respect of both the true innuendo and imputation 3(b) he would wish to substitute the word "compatible" for the word "appropriate". I have dealt with the imputations as pleaded. No doubt the defendant further would wish to consider its position in relation to any such reworded imputation. 16 The orders are:

1. Imputations 3(a), (b), (c) and (e) and 4(a) are incapable of being carried by the matter complained of.
2. The plaintiff has leave to file an amended statement of claim within 14 days of today.
3. The plaintiff is to pay the defendant's costs.
4. The action is listed in the Registrar's Defamation Directions List on 2 May 2003.

Appendix A "The Sydney Morning Herald" 2 November 2000

1. Silk's purse empty.
2. Here's a turn up for the books. Maurie the Marvellous - struck-off, erstwhile bankrupt barrister - is set to make a comeback and we've got just the right client in mind for him.
3. Maurie's return is a marvel, given the amount of traffic heading the other way. For example, joining the ranks of those on the verge of being struck off is QC Clarrie Stevens who, despite running a successful practice specialising in tax matters, was unable to file a return of his own for 24 years. Meanwhile, Australia's most bankrupted disbarred barrister, Stephen Archer, has been bankrupted by the Tax Office for the third time.
4. Which brings us to Maurice Kriss, an aged pensioner who's been working as a barman and cleaner at the Portland RSL Club, near Lithgow. Maurie, who was struck off some seven years ago, recently won a Supreme Court battle against the legal Practitioners Admission board and the Bar Association.
5. Not that poor Maurie ever had much experience as a barrister in the first place. He was pushing 50 when he threw in his job as a builder of prefabricated homes to take his place at the bar. But before he became accustomed to wearing that fine horsehair wig, poor Maurie was struck off for some shoddy financial-legal advice to a Mrs Bach.
6. Not only did he lose his appeal against being struck off, he was also ordered to pay the Bar Association's $100,000 costs, which he couldn't, so the association bankrupted him.
7. But now Maurie's back. As Acting justice Cooper said, "There is no suggestion that his bankruptcy involved any moral turpitude" and that "the plaintiff's only income, since about February 1998, has been social security pensions, first carer's pension and then, when he turned 65, an age pension. His only assets are $5,000 in the bank and personal effects. He lives in a house at Portland, which is owned by his wife, from whom he separated in 1996. In the current proceedings he has been represented on a pro bono basis. In the light of all the evidence, said the judge, "the plaintiff has comfortably satisfied the court that over the past almost seven years he has lived an exemplary life. He has demonstrated integrity, honest and probity. He has comfortably satisfied the court that that those early errors did not reflect any permanent defect in character."
8. With that glowing recommendation, could Sauce offer his services to the gent who recently put an ad in the Herald seeking the services of a lawyer? That person had to be "an outstanding individual with a sense of humour under pressure", read the advertisement. "Apply by email to Jodee Rich, jdrich@optusnet.com.au," it concluded.

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