Kriss v John Fairfax Publications Pty Ltd

Supreme Court of NSW|2005-11-04|Before: Adams J, Cooper J

Introduction 1 On 2 November 2002 the Sydney Morning Herald published on the back page of its weekend newspaper the following article (paragraph numbers added) - [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 his fine horse-hair 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 $5000 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." [8] In the light of all of 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, honesty and probity. He has comfortably satisfied the court that those early errors did not reflect any permanent defect in character." [9] 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: JodeeRich, ,' it concluded." 2 Mr Kriss sued John Fairfax Publications Pty Limited, the owner and publisher of the newspaper. On 23 February 2004 a jury found that the matters complained of conveyed an imputation which was defamatory of the plaintiff in the following terms - "The plaintiff was a bankrupt barrister who was stuck off for some shoddy financial legal advice to a Mrs Bach." [The imputation.] 3 So far as publication of the matter in New South Wales is concerned, the defendant pleads by way of defence that the plaintiff's imputation is a matter of substantial truth and relates to matters of public interest and, further and in the alternative, that the matter complained of in its natural and ordinary meaning bore the following contextual imputations - (i) the plaintiff was a bankrupt barrister who had so conducted himself as to warrant being struck off the roll of legal practitioners; (ii) the plaintiff had so conducted himself as to warrant being struck off the roll of legal practitioners; (iii) the plaintiff was a bankrupt barrister who was struck off the roll of legal practitioners; (iv) the plaintiff was struck off the roll of legal practitioners; (v) the plaintiff gave shoddy legal advice to a Mrs Bach; and (vi) the plaintiff was a bankrupt barrister who was struck off in connection with shoddy financial-legal dealings with a Mrs Bach. 4 The defendant contends that each of the contextual imputations was published contextually to the imputations found by the jury, that each of them relates to a matter of public interest and each is a matter of substantial truth. Accordingly, the imputation found did not further injure the reputation of the plaintiff. 5 If the defences fail, the question of damages arises. There is also an additional claim made by the plaintiff for the tort of injurious falsehood. It is convenient that I mention at this point that Mr Evatt, of counsel for the plaintiff, does not submit that the imputation does not relate to a matter of public interest.

Factual background 6 The newspaper report, as is self-evident, arose from proceedings taken against the plaintiff in the Legal Profession Disciplinary Tribunal. Those proceedings determined a complaint made in April 1993 by the Bar Council of the New South Wales Bar Association against the plaintiff alleging that he engaged in professional misconduct and unsatisfactory professional conduct from April 1989 to the date of the complaint in regard to his dealings with a Mrs Bach. On 26 September 1995, the Tribunal found that the plaintiff engaged in unsatisfactory professional conduct and professional misconduct. On 20 December 1995 the Tribunal ordered that the plaintiff be removed from the roll of legal practitioners and ordered that he pay to Mrs Bach the sum of $2,920 by way of monetary compensation, together with other ancillary orders. 7 In 2001 the plaintiff applied for readmission as a practitioner but this was refused by the Legal Practitioners' Admission Board. The plaintiff appealed to the Supreme Court. On 17 October 2002 the Supreme Court (Cooper AJ) allowed the plaintiff's appeal and approved the plaintiff's application for admission, subject to the condition that he undertake and successfully complete the Bar Association's reader's course. 8 The plaintiff had been admitted as a barrister in May 1987, then aged 49 years. About a year later, he successfully defended Mrs Bach in a preference claim brought against her. After those proceedings Mrs Bach met the plaintiff a number of times informally. Amongst other things she told him about her fraught domestic situation, saying that she was frightened of her husband who was an alcoholic undergoing psychiatric treatment and had been financially irresponsible. She told him of various financial difficulties and, in particular, her concerns that a mortgagee bank might foreclose on a mortgage over some twelve acres of land at Camden on which her home was built. The plaintiff was sympathetic and, wishing to help Mrs Bach, advised her to consult a firm of solicitors about a complaint she made concerning allegedly improper conduct by what was then the State Bank of New South Wales. When it became apparent that Mrs Bach was unable to fund any proceedings against the bank, the plaintiff advised Mrs Bach informally that she might be able to obtain bridging finance to fund the proposed litigation and discharge an outstanding mortgage (to another bank) by arranging for the subdivision and sale of part of the land at Camden. The Tribunal was satisfied that the plaintiff's motive for giving this advice was a genuine desire to help her and he had no intention to prey on Mrs Bach's desperation and vulnerability. 9 The plaintiff then attempted to arrange bridging finance and find a project manager to finance and carry out the subdivision. In the result, the plaintiff decided that he would undertake the role of project manager. A number of discussions took place about the plaintiff's role. The Tribunal found that the plaintiff intended to convey that in arranging finance and the subdivision he would not be acting as a barrister but would charge for his time arranging finance and arranging subdivision approval and that, once subdivision approval was granted, his only remuneration for subsequent work in arranging further finance and carrying out the subdivision would be by obtaining one of the blocks of land in the subdivision. However, the Tribunal found that he did not convey to Mrs Bach or her solicitor the fact that he intended to charge for non-legal work prior to the grant of approval for the subdivision. 10 In May 1989 the plaintiff opened a bank account (the properties account) with the Commonwealth Bank in anticipation of a grant of bridging finance. An agreement, described as a "Deed of Trust" was prepared under which the plaintiff was appointed project manager and became entitled to a block of land on completion of the subdivision. 11 Amongst other things, the Bar Association submitted, in substance, that the conduct here briefly described amounted to intermingling and the plaintiff had failed in his professional duty to advise Mrs Bach to obtain independent legal and commercial advice. The duty was said to arise out of the following facts, which were not disputed - "[The plaintiff agreed] to act as Mrs Bach's subdivision project manager and [act] for her in that capacity: (i) when he had previously advised and appeared for her as counsel in…[the preference claim litigation]; (ii) when he had previously been briefed and continued to be briefed as her counsel in respect of the…litigation against the State Bank; (iii) when to his knowledge she had no independent legal and/or commercial advice as to whether she should embark upon the subdivision project and, if so, to appoint him as project manager thereof; (iv) when he stood to gain a financial advantage from acting as project manager; (v) when he knew there had been no independent assessment of the commercial viability of the subdivision project; (vi) when he knew that Mrs Bach reposed great confidence and trust in him to act in her best interests as a barrister and/or commercial adviser; (vii) when he knew that Mrs Bach had serious matrimonial, financial and legal problems; and (viii) when he had allowed a social relationship to develop between himself and Mrs Bach since he knew she regarded him as her confidante in respect of highly personal matters." 12 It is important to note that the Tribunal found - "The social relationship was not one in which the barrister sought or encouraged the companionship and friendship of Mrs Bach but was one in which the barrister, out of a sense of goodwill and decency, was willing to assist and advise Mrs Bach in relation to her legal and personal problems. The social relationship was not one in which the barrister and Mrs Bach went out together on what might generally be described as social occasions, but was one in which Mrs Bach sought the barrister out to discuss her problems and solicit his advice. On those occasions the meeting took place either in his chambers or in a nearby coffee shop." 13 The Tribunal held that there was nothing inherently wrong or improper in the plaintiff assisting Mrs Bach in respect of both her legal and her non-legal problems. In particular, her entry into the subdivision agreement with the plaintiff was only indirectly related to the arrangement whereby Mrs Bach would generate money to pay counsel's fees to the barrister for legal work for which he might be briefed. The Tribunal found that, nevertheless, the plaintiff "must have realised that the fees he intended to charge for non-legal work and his fees in connection with [the proposed litigation] would be paid from the bridging finance] which the plaintiff was organising and that the deed of trust dealing with the non-legal issues was an integral part of the purpose for which bridging finance was being obtained". 14 One of the substantial criticisms of the plaintiff's conduct was that he failed properly to draw the distinction between his role as a barrister and his role as a commercial adviser and subdivision manager. The Tribunal found - "The barrister stood to benefit from the agreement by receipt of a block of land, and he also stood to benefit if he was briefed in the State Bank litigation. The bridging finance was the source of funds from which his fees for legal and non-legal work would be paid. This must have been known to him." 15 The Tribunal concluded that one of the plaintiff's motives for becoming project manager was the expectation of receiving a block of land. The deed of trust, although it was a necessary step in order to obtain funds for the State Bank litigation was not motivated by the hope or expectation of obtaining a brief in that litigation. However, the plaintiff did not advise Mrs Bach to obtain independent commercial or legal advice about the matter and did not tell her that the bridging finance would be used to pay fees which he proposed to seek for non-legal work. The Tribunal held that if Mrs Bach had received independent legal advice she would have been advised in all probability to have ascertained what the plaintiff intended to charge, if anything, for arranging finance and for other work needed to be done before obtaining bridging finance. She would have been advised on the appropriate amount to pay for that work. It was also likely she would have been advised to ascertain whether the plaintiff would be entitled to charge anything for subdivision work after the agreement was entered into, in particular disbursements for matters which - as it happened - he charged her, or at least whether the agreement authorised the plaintiff to obtain reimbursement for such expenses. Sums were paid to the plaintiff respect of these matters about which she was not consulted. 16 The Tribunal also held that Mrs Bach would probably have obtained advice to satisfy herself independently of the plaintiff's opinion about the commercial wisdom of the transaction. There was no evidence which enabled the Tribunal to determine whether the transaction was commercially wise. 17 The Tribunal concluded, in respect of the facts which I have set out above from the complaint of the Association, that it was unable to find that the plaintiff's standard of competence and diligence fell short of the standard that a member of the public was entitled to expect of a reasonably competent legal practitioner. To the extend to which the conduct was connected with the plaintiff's practice of law, however, he entered into the agreement with Mrs Bach knowing that she did not have independent legal or commercial advice "and he did not adequately advise her of his intention to charge for non-legal work, the rate he would charge for that work, and the entitlement he had to reimbursement for personal expenses from the trust fund". However, the Tribunal was not satisfied that he failed in these respects because of any desire to disadvantage her but rather because of a lack of appreciation of the distinction between his role as a barrister and his commercial and confidential relationship with Mrs Bach and because of "his failure to appreciate his obligation to ensure that she was fully informed and advised". 18 The ultimate conclusion about these facts was, therefore, that the matters complained of were connected with the barrister's legal practice "and was unsatisfactory professional conduct because of the barrister's failure to fully advise Mrs Bach himself and to ensure Mrs Bach obtained independent legal and commercial advice before entering into the agreement with him". The significance of the distinction between this finding and a finding of professional misconduct is obvious. 19 There were other findings of unsatisfactory professional conduct including that the plaintiff acted with reckless disregard of his obligations as a trustee when he made payments to himself and he never gave proper consideration to his entitlement for reimbursement, he overpaid himself through an absence of any proper consideration of the amount of fees to which he was entitled and was grossly careless when acting on Mrs Bach's authorisation to use funds to pay his fees. The Tribunal also found that the plaintiff he also deliberately concealed overpayments in breach of trust and that this concealment amounted to professional misconduct. There was also a failure by the plaintiff to account for funds utilised and knowingly failing to account. Even though he was not deliberately concealing a breach of trust, this amounted to a grave impropriety affecting his professional character and was conduct indicative of a failure by him either to understand or to practice the precepts of fair dealing in relation to his clients. It therefore amounted to professional misconduct. 20 It will be seen that the only failure of the plaintiff in respect of legal advice was the omission to advise Mrs Bach to obtain independent legal and commercial advice before entering into the agreement with him. Clearly enough, the imputation found by the jury involved the assertions not only that he was bankrupt but that he was struck off for "some shoddy financial-legal advice" to Mrs Bach. The imputation is, in part, a quotation from the article itself, though it must be read as being derived from the published matter taken as a whole. Insofar as the plaintiff's misconduct involved some - comparatively small - sums of money it could be said that his financial dealings with Mrs Bach were improper. However, in no reasonable sense could these improprieties be described as the giving of financial advice. 21 It is, I think, fair to categorise the plaintiff's failure to understand and distinguish his role and work as a barrister from his role and work outside the ordinary practice of a barrister as, in a general sense, a lack of legal knowledge. The duties of a barrister, though they are expressed (and rightly) as ethical rules, form part of the body of law governing a barrister's conduct and ignorance of them or their application in a particular situation must be regarded as being ignorance, in that respect, of the law. In the sense that the plaintiff did not advise Mrs Bach to obtain independent legal and commercial advice, this reflected an ignorance of the relevant law. (It was not suggested that the omission was deliberate disobedience.) However, this omission did not mean at all, in my view, that the advice that he did give her was defective or wrong. The error was that he did not give her more advice than, as it happened, he gave her. The advice that he should have given her was not advice either as to the law or finance but that she should obtain independent legal and commercial advice before entering into the agreement with him. 22 The imputation refers, I think, to advice that was both financial and legal, although literally "financial" might be considered as an adjective describing the kind of defective legal advice in question. In the context, the word "shoddy" conveyed not only significant inadequacy but moral turpitude. Of course, the question is one of substance and what would be conveyed to the ordinary reader not subjecting the matter to critical analysis. I think such a reader would have understood the matter to convey that the legal and financial advice given to Mrs Bach was significantly wrong in a positive sense so that she was misled or might have been misled by following it and that it was so wrong as to demonstrate moral turpitude of a substantial kind, that is to say, bad enough to warrant disbarment. This is the meaning that the ordinary reasonable reader would think was conveyed and, for that matter, intended to be conveyed. It is the ordinary and natural meaning of the words used. I do not doubt that this was the meaning intended to be conveyed.

23 The Tribunal found, in relation to the advice to Mrs Bach as to the manner in which she could raise money to fund the litigation - which is at the centre of the relationship between the plaintiff and Mrs Bach giving rise to the complaints - that the advice was not given in his capacity as a barrister and did not require the application of the professional skills of a barrister. Moreover, even if it did occur in connection with the practice of law, the Tribunal was not satisfied "that the advice and the circumstances in which it was given fell short of the standard of competence or diligence expected of a reasonably competent legal practitioner". 24 So far as any financial advice is concerned, there was no complaint as to the substance of such advice that the plaintiff gave to Mrs Bach. The plaintiff's shortcomings in respect of financial matters were that he did not tell Mrs Bach what rate he would charge for non-legal work and had not made clear to her that he would charge for non-legal work in addition to receiving a block of land, and that he charged at a rate which had not been earlier agreed by Mrs Bach although the Tribunal was not satisfied that the charges were unreasonable. The plaintiff, knowing that he had no authority to do so, drew a cheque from a trust fund in the sum of $2,630. This was found to be a conscious act in breach of trust amounting to professional misconduct. His failure to properly keep accounts and his failure to properly apply his mind to the keeping of adequate records amounted to a reckless disregard of his obligations as a trustee and thus his drawing of $750 from the trust fund for expenses amounted to unsatisfactory professional misconduct. A further utilisation in breach of trust of the sum of almost $3,000 represented an overpayment which, again, arose from the absence of any proper consideration on the plaintiff's part to the amount of fees to which he was properly entitled and thus was grossly careless in acting on the authority which he had to withdraw those moneys. This overpayment amounted to unsatisfactory professional conduct. The withdrawals were in respect of sums that the plaintiff believed were owed and for which he intended to account in due course. He did not do so and his records were such that no proper account was possible. 25 The Tribunal also found that the plaintiff, having made withdrawals to which I have referred, wrote a letter to the solicitors intending to conceal some of the payments whilst the letter had the effect of concealing others. The deliberate concealment was held to be professional misconduct. The Tribunal found, furthermore, that the plaintiff's failure to account over an extended period despite a number of requests to do so, where he must have known that he had failed to properly account at an earlier time, amounted to "a grave impropriety affecting the barrister's professional character and his conduct indicative of a failure by the barrister to either understand or to practice the precepts of fair dealing in relation to his clients, and amounts to professional misconduct". The Tribunal also found that the plaintiff failed to give a full and proper account of his financial dealings in responding to the complaint made by the Bar Association. 26 The Tribunal stated - "The barrister's problems commenced when he failed to distinguish between his professional role as a barrister and his personal interests. He failed to appreciate the extent of the fiduciary duties he owed as a result of acting for a client. This resulted in his client contracting with him in his private capacity without the client being properly and independently advised about the transaction, and with receiving any adequate explanation of the distinction between his role as her barrister and his self-interest as a contracting party. It was a contract which had the potential to generate money for the client for the purpose of being used, in part, to pay fees to the barrister for work he was to perform for her. It was also a contract pursuant to which the barrister held money in trust for the client. Part of that money was in fact used later to pay fees for professional work he performed as a barrister. The barrister did not keep proper trust account records and did not give proper consideration to the quantum of disbursements he was entitled to make from the trust money. The foregoing could be explicable on the basis of inexperience as a barrister, and a generally careless approach to book work. This conduct, whilst it involves breaches of fiduciary duty or trust deserving of censure, does not illustrate the degree of want of probity which would necessarily demonstrate an unfitness to practice." 27 In concluding that the plaintiff should be struck off, the Tribunal summarised the position as follows - "The present case is one in which the Barrister's probity has been called into question. Although the conduct is isolated in the sense that it involves only one client, the conduct illustrates a frequency of the Barrister's self interest prevailing over his probity.

When he became frustrated about payment of his fees, he committed a deliberate breach of trust to achieve part payment. When he was asked to account, and he realised he had made an overpayment and was financially stressed, he deliberately concealed the overpayment.

When he responded to the Association about Mrs Bach's complaint on 12 June 1992, he masked the overpayment.

Having failed to successfully contest the allegation of deliberate concealment, he gave untruthful evidence in an attempt to mitigate against the order which would be made.

This behaviour is not simply illustrative of a lack of professional judgment or a lack of proper understanding of legal ethics or a lack of understanding of the law. It was not submitted on behalf of the Barrister that he did not know that he should not take trust money without authority, that he should not conceal breaches of trust and that he should not be untruthful."

This passage was set out in the judgment of the Supreme Court. 28 It is fair to say, I think, that the plaintiff's financial dealings with Mrs Bach were marked by carelessness and a failure to take his obligations as a trustee seriously as well as dishonesty. However, I do not see that any of this conduct could reasonably be described as shoddy financial advice. 29 Overall, I have formed the clear view that the defendant has not established the truth of the imputations. The inadequacies and, indeed, misbehaviour of the plaintiff was none of it of a kind which could fairly be characterised as "shoddy financial legal advice". I am fortified in this conclusion by the view of Cooper AJ in dealing with the plaintiff's application for readmission - [69] The errors, which led to the plaintiff's disbarment, arose out of a somewhat unique set of circumstances. He embarked upon seeking to aid a woman who was then having difficulties with her husband. He thus placed himself in a volatile domestic situation. The advice he gave and the work he did for Mrs Bach was quite reasonable and proper. [70] She, however, appears to have become reconciled with her husband and under his influence turned against the plaintiff making a number of serious allegations, which were considered and dismissed by the Tribunal. It is in this context that the plaintiff committed the acts of misconduct as found by the Tribunal." [Italics added.] 30 It is worth noting that, had the plaintiff's shortcomings solely been the failure to advise Mrs Bach to obtain independent financial and legal advice, he would not have been struck off. This conduct involved no moral turpitude and the ignorance of the law that it implied was not such as to render the plaintiff unfit to practice as a barrister. Of course, as the Tribunal rightly found, the plaintiff was guilty in this respect of unsatisfactory professional conduct. The plaintiff would, almost certainly, have been admonished and no more, having regard to the circumstances in which he found himself in a genuine attempt to help Mrs Bach and the lack of any evidence that Mrs Bach had been incompetently advised as to the substance of the transactions or had suffered any loss arising out of them. 31 I have therefore concluded that the defendant has not shown that the defamatory imputation was true.

Defence of contextual truth (NSW) 32 The defendant has pleaded six contextual imputations as follows - (i) the plaintiff was a barrister who had so conducted himself as to warrant being struck off the roll of legal practitioners; (ii) the plaintiff had so conducted himself as to warrant being struck off the roll of legal practitioners; (iii) the plaintiff was a bankrupt barrister who was struck off the roll of legal practitioners; (iv) the plaintiff was struck off the roll of legal practitioners; (v) the plaintiff gave shoddy financial-legal advice to a Mrs Bach; (vi) the plaintiff was a bankrupt barrister who was struck off in connection with shoddy financial-legal dealings with a Mrs Bach. 33 Section 16 of the Defamation Act 1974 is in the following terms - "Truth: contextual imputations (1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of. (2) It is a defence to any imputation complained of that: (a) the imputation relates to a matter of public interest or is published under qualified privilege, (b) one or more imputations contextual to the imputation complained of: (i) relate to a matter of public interest or are published under qualified privilege, and (ii) are matters of substantial truth, and (c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff." 34 It is submitted by the plaintiff as an initial objection that none of the contextual imputations (i) to (v) are "another imputation" within the meaning of s 16. It is contended that they are merely partial restatements or rephrasings of elements of the plaintiff's imputations of which none can be conveyed separately and at the same time as the plaintiff's imputations. 35 As Gleeson CJ noted in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSW WLR 135 at 137 - "Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate for the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology." 36 It is clear that contextual implications (i) to (iv) are true. However, they are true only in the sense that they are more general ways of stating the plaintiff's imputation in a context where the matter complained of does not give rise to any other matter traducing the plaintiff's reputation in the way expressed by the contextual imputations. The defendant argues that the matter complained of suggests that the plaintiff was struck off for some conduct but although the conduct included "shoddy legal financial advice" it was not restricted to that conduct. I do not agree. The matter complained of, on any reasonable reading, confines or describes the plaintiff's misbehaviour as giving shoddy financial legal advice to Mrs Bach and does not suggest that he was struck off for any other reason. In my opinion, there is nothing in the article which could or does justify a contextual imputation of a general allegation of professional misconduct warranting disbarment beyond the specific reason identified in the plaintiff's imputation. In short, the publication does not convey the imputation that the plaintiff was otherwise unfit to be a barrister. 37 Accordingly, none of the contextual implications (i) to (v) are, within the meaning of s 16(1), "another imputation" made by the published matter. 38 Looking at the matter generally, even if, for example, it is right to allow the defendant to plead these contextual implications, they do not at all "further injure the reputation of the plaintiff" more than the damage resulting from the plaintiff's imputation. The reason for this is obvious. The contextual imputations do not - in the context of the matter complained of - convey anything substantially different from that which is conveyed by the plaintiff's imputation. 39 I have already held that the imputation in (v) is not true. Imputation (vi) is not available since the matter complained of does not suggest, let alone convey, that the plaintiff was struck off for any dealings other than the advice to which it specifically refers.

The common law contextual defences 40 In Zunter v John Fairfax Publications Pty Limited [2005] NSWSC 759 it was necessary for Simpson J to consider the defences available in other States and Territories which were, as here, raised by the defendant. With respect to Queensland and Tasmania her Honour took the view that, whilst the decision of the Queensland Court of Appeal in Robinson v Laws [2001] QCA 122 was not strictly binding on the courts in this State, it should be followed as a matter of judicial comity. Accordingly, the defence founded upon Polly Peck Holdings plc v Trelford [1986] QB 1000 (commonly known as the "Polly Peck defence" (pleaded in relation to both Queensland and Tasmania) was not available. It seems to me that, also for reasons of judicial comity, I should take the same approach as that taken by Simpson J. Accordingly, the defences are rejected so far as the publications in Queensland and Tasmania are concerned. 41 In respect of publications in Victoria, South Australia, Western Australia, Northern Territory and Australian Capital Territory, the defendant in Zunter had pleaded a variant of the Polly Peck defence. Her Honour considered that, even if the defence were available, for the same reason as those for which she rejected the defence under s 16 of the NSW Act, it should be rejected. Her Honour noted, moreover, that the decisions in David Syme & Co Limited v Hore-Lacy [2000] VSCA 24 and Advertiser-News Weekend Publishing Co Limited v Manock [2005] SASC 82 made it "very difficult" for the defendant to succeed. Her Honour said that "it could only do so if I decline (as I decline to do) to follow the decisions of appellate courts in other states of Australia". Accordingly, Simpson J rejected all interstate defences. It seems to me that I should adopt the same approach. 42 At all events, the fundamental problem for the defendant is that the contextual imputations asserted by the defendant either do not arise from the matter complained of nor substantially differ from the plaintiff's imputation. Nor do I see how the defendant's contextual imputations could be regarded as merely nuances or variations of the plaintiff's imputation. The attack on the plaintiff's reputation is not that he was disbarred. The attack is that he gave financial legal advice that was so bad that it caused his disbarment. 43 It follows that the defences fail.

Injurious falsehood 44 It is accepted that, in order to succeed on this aspect of his case, the plaintiff must prove that false statements were maliciously published about him which caused actual pecuniary loss. 45 The statements now pressed as false are, in substance, the following - (i) the plaintiff was struck off for some shoddy financial-legal advice to Mrs Bach; (ii) the Bar Association bankrupted the plaintiff because he could not pay the Association's costs; (iii) the plaintiff's return to the Bar was a turn up for the books; (iv) the plaintiff was called "Maurie the Marvellous" and was a struck-off, erstwhile, bankrupt barrister; (v) the plaintiff's return to the Bar was a marvel; (vi) the right client for the plaintiff was Jodee Rich; (vii) the plaintiff had been working as a barman and cleaner at the Portland RSL Club; (viii) the plaintiff did not have much experience as a barrister in the first place;

(ix) the plaintiff threw in his job as a builder of prefabricated homes to take his place at the Bar; and (x) the plaintiff lost his appeal against being struck off. 46 The plaintiff gave evidence as to some of these points. He said that following his honourable discharge from the Royal Australian Navy in 1961 he worked in the insurance industry until 1972. In 1972 he obtained a builder's licence and established his own prefabricated housing business at Botany. His designs, it appears, were favourably noticed in the industry. In 1981 the plaintiff commenced his studies for the degree of law at Macquarie University and graduated in 1986. He was admitted to practice at the New South Wales Bar in May 1987 and was in active practice. The plaintiff says, moreover, that he had stopped working in the building industry some seven years before he went to the Bar, during which time he was a student (in 1979 he enrolled in a Bachelor of Business degree by correspondence course) and was raising twin babies. 47 So far as his bankruptcy was concerned, he was made bankrupt in 1993 because he was unable to pay a debt that arose out of his guaranteeing the rents payable on the floor of barristers' chambers from which he worked. A number of barristers did not pay their rents and, eventually, the plaintiff was unable to maintain the payment of the full rents, which included a payment for the painting of the floor. The plaintiff was discharged from bankruptcy on 2 April 1996. As far as his experience at the Bar was concerned he had been practicing for some seven years before he was struck off, although, in cross-examination he said that he had reduced his practice when the complaint was made against him and was only voluntarily finishing off the work that he had then to hand. This occurred about December 1991. 48 So far as the plaintiff's work at the Portland RSL Club is concerned he said that he was President, Secretary and Licensee of the club and that he voluntarily did cleaning and bar work to help the club out because it was having financial problems. It is clear that the word "working" in the article means "employed". In respect of the plaintiff's appeal from the Tribunal's orders, the plaintiff said that he did not lose it but, rather, he withdrew it. It appears from the plaintiff's evidence that he lodged his appeal late in 1995 or early in 1996 but no action was taken in respect of it until he applied to the Legal Practitioners' Admission Board for readmission. Accordingly, the appeal was on foot for about four years but never advanced to a hearing. The plaintiff said that he did not continue with his appeal because he could not afford to litigate it. However, when this matter was broached in the plaintiff's cross-examination in the Supreme Court he put forward other reasons for withdrawing the appeal. It appears from the judgment of Cooper AJ that the reasons proffered were that he hoped to get further evidence which may have established his contention that he had authority to withdraw the money from the property account. As his Honour observed, "in retrospect, the prospects of getting such evidence were little more than a forlorn hope". His Honour did not regard the persistence of the plaintiff in the appeal as indicating that he did not appreciate the impropriety of the conduct found by the Tribunal to justify his disbarment. His Honour did not suggest that the plaintiff's evidence concerning his withdrawal of the appeal was wrong, although it seems fair to say that it appeared to his Honour that the appeal was doomed to failure. 49 Dealing then with the alleged false statements -

As to (i) For the reasons that I have already given, it was false to state that the plaintiff was struck off for shoddy financial-legal advice to Mrs Bach. He was not struck off for this reason. Furthermore, insofar as the financial and legal advice that the plaintiff gave to Mrs Bach there is no suggestion that it was inadequate, as far as it went. It was wrong of him not to also have advised her to obtain independent legal and financial advice. The sense of the article is that the quality of the advice that he did give her was itself so incompetent or improper as to warrant his being struck off. The characterisation of the plaintiff's advice in this way was false.

As to (ii) The Bar Association did not bankrupt the plaintiff and he was not bankrupted for the reason that he did not pay the Bar Association's costs. It follows that in this respect the article was false.

As to (iii) Insofar as the expression "a turn-up for the books" means something unusual or exceptional, I think that it was false in respect of the plaintiff. It may well be true that it is rare that a barrister who has been disbarred will be readmitted. It is self-evident, however, that whether a barrister should be readmitted upon his application depends upon the circumstances, including the barrister's moral turpitude, that caused the disbarment and his or her subsequent conduct. Having regard to the facts disclosed in the judgment of Cooper AJ and the reasons for which the plaintiff was struck off, I do not consider the outcome to be surprising or exceptional. This is not to say that cogent reasons could not be advanced for refusing his application. However, on any fair reading, Cooper AJ's orders for readmission were unsurprising. Indeed, if I may respectfully say so, the decision made by his Honour was that which was most likely to be made in all the circumstances. Accordingly, it was false for the article to state that the plaintiff's return to the Bar was a turn-up for the books.

As to (iv) I do not see how describing the plaintiff as "Maurie the Marvellous" or as a "struck-off, erstwhile bankrupt barrister" can be false. It is clear that the plaintiff was indeed struck-off and had been bankrupt. I think it is true that the sense of the article is that it was a marvel that the plaintiff was permitted to return to practice at the Bar but I do not see how describing him as "Marvellous" can be given a sensible meaning capable in the circumstances of being false. Accordingly, this particular is rejected.

As to (v) Describing the plaintiff's return as a "marvel" is false since, his return in the circumstances could have been, I think, predicted to be reasonably likely. The point that was made in paragraph [3] is, however, not so much that his return to practice was a marvel as such but rather that it appeared to go against the trend. Since this explanation suggests that his wrongdoing was similar, in a sense making comparison reasonable, to the conduct of the Messrs Stevens and Archer who, having been mentioned, "brings us to" the plaintiff, it merely asserts another falsity. The article suggests that the plaintiff's wrongdoing could and should be compared to that of Messrs Stevens and Archer. The allegations against those barristers in the article are significantly different and more serious than the matters for which the plaintiff was disbarred.

As to (vi) I do not think that this is a statement of fact capable of being false in the relevant sense.

As to (vii) As I have said, the article plainly suggested that the plaintiff had been employed as a barman and cleaner - in the context obviously implying that this was the kind of job for which he was qualified. Leaving the implication aside, the fact is that the plaintiff was not employed as a barman and cleaner but had given that service voluntarily to help the club, he being the President, Secretary and Licensee. In substance I think that this statement was false.

As to (viii) The plaintiff had practised from his admission in May 1987 until his name was removed from the roll in December 1995. However, he ceased practice in the sense of taking any new work after the complaint was made to the Bar Association in December 1991. The suggestion conveyed by the statement that the plaintiff was "struck-off before he became accustomed to wearing his…wig" is that he was very inexperienced at that time. I do not think that over four years practicing as a barrister could be so regarded, even ignoring the fact that he was not struck off for a further four years. As I have already said the clear thrust of paragraph [5] is that he was incompetent and it was this inexperience and incompetence that led him to give the "shoddy financial-legal advice" to Mrs Bach.

As to (ix) It is clear that it was false to state that the plaintiff threw in his job as a builder to take his place at the Bar. Of course, the sneering implication here is that, being a builder, he would not really have been a competent barrister. I mention, in parenthesis, that many barristers have come to practice from a wide range of occupations which, almost invariably, adds significant additional experience and expertise to the manner in which they undertake their work. The sneer directed at the plaintiff because he was a tradesman who entered the legal profession was not only offensive, it was an expression of silly elitism.

As to (x) The plaintiff did not lose the appeal from the Tribunal. He withdrew it. It may be that the appeal had little chance of success. However, the necessary implication in the article that there was an adverse decision by a court as to the merits of his appeal was false. Malice 50 The parties agree that, for the purpose of the tort of injurious falsehood, the plaintiff must prove that the defendant was actuated by malice in publishing the falsehood. Malice in this context means the same as malice for the purposes of the defence of qualified privilege in the tort of defamation: Roberts v Bass (2002) 212 CLR 1 at [91]. In Roberts v Bass Gaudron, McHugh and Gummow JJ said (omitting some references) - "[76] Improper motive in making the defamatory publication must not be confused with the defendant's ill will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue was ordinarily conclusive evidence that the publication was actuated by an improper motive…but leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication… Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication…. [77] If the defendant knew the statement was untrue when he or she made it, it is almost invariably conclusive evidence of malice. That is because a defendant who knowingly publishes false and defamatory material almost certainly has some improper motive for doing so, despite the inability of the plaintiff to identify the motive…" … [83] In our opinion, neither lack of honest belief nor knowledge of falsity ipso facto destroys a defence of qualified privilege. But knowledge of falsity is 'almost conclusive evidence' of improper motive, except where the defendant is under a legal duty to publish the defamation. [84] In exceptional cases, the sheer recklessness of the defendant in making the defamatory statement, may justify a finding of malice. In other cases, recklessness in combination with other factors may persuade the court that the publication was actuated by malice. In the law of qualified privilege, as in other areas of the law, the defendant's recklessness may be so gross as to constitute wilful blindness, which the law will treat as equivalent to knowledge. 'When a person deliberately refrains from making enquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear they may learn the truth', said this Court in R v Crabbe (1985) 1 56 CLR 464 at 470, 'he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring'. In less extreme cases, recklessness, when present with other factors, may be cogent evidence that the defendant used the occasion for some improper motive. This is especially so when the recklessness is associated with unreasoning prejudice on the part of the defendant…' … [98] When the plaintiff proves that the defendant knew the defamatory matter was false or was reckless to the point of wilful blindness, it will constitute almost conclusive proof that the publication was actuated by malice. A deliberate defamatory falsehood 'could not have been for a purpose warranted by any privilege; and hence it is necessary to determine what the exact purpose was in order to ascertain whether the privilege has been lost for the particular defamatory statement which has been proved to have been wilfully false' ( Moulds v Fergusson (1939) 40 SR NSW 311 at 329, per Jordan CJ, Davidson, Halse, Rogers JJ agreeing). When the plaintiff can only prove that the defendant lacked the belief in the truth of the defamatory material, however, it will be no more than evidence that may give rise with other evidence to an inference that the publication was actuated by malice." 51 The only evidence of malice is the article itself. I have already stated which of the particularised falsehoods are justifiably so categorised. It is clear that the defendant had possession of the decision of Cooper AJ readmitting the plaintiff. I think that it is probable, virtually to the point of certainty, that the journalist either had actual possession of or access to the judgment or was in a position easily to obtain it. After all, a section of the judgment was quoted. On the other hand, if the journalist had not obtained the judgment, to have written the article in ignorance of its terms would to my mind be such an act of wilful blindness and sheer recklessness as to justify attributing to her constructive knowledge of its contents. (It is not suggested that the Tribunal's reasons were in the possession of the defendant or the journalist.) The judgment makes it clear that the plaintiff had sold his business of making modular prefabricated houses in 1979 and, in 1981, embarked on the external law course at Macquarie University, graduating and being admitted as a barrister in May 1987 at the age of 49. As the judgment discloses, the plaintiff first met Mrs Bach in 1988 about a year after his admission. The judgment noted that the plaintiff gave Mrs Bach both legal and commercial advice, stating that the "advice he gave and the work he did for Mrs Bach was quite reasonable and proper". That this statement was omitted from the quotation is cogent evidence of malice. 52 The judgment sets out briefly the circumstances in which the properties account was opened. Cooper AJ then noted that Mrs Bach later withdrew her instructions from her then solicitors and required them and the plaintiff to tax their fees, in substance, a refusal to pay fees, which had been outstanding for some time without verification. The judge noted that, in March 1991 the plaintiff drew the first cheque in payment of his fees on the properties account and quoted the Tribunal's finding that "the likely explanation for drawing that cheque is that the barrister became frustrated by what he regarded as an unjust withholding of his fees and decided to use the Wilton Property account as his own to pay his personal debts as a contra against money which he believed Mrs Bach owed…in the knowledge that he had no authority to use the money for that purpose". The learned judge also noted the Tribunal's judgment that there was no finding that the plaintiff "intended to permanently deprive Mrs Bach of the unauthorised an excessive payments from the account"…[and] that the barrister intended at some stage to account to Mrs Bach and make adjustments if necessary, but his failure to keep proper records made it difficult if not impossible to properly account…". 53 The conclusion of the Tribunal (as stated in para [27] above) was set out by his Honour. Those reasons make it clear that the Tribunal (and, for that matter, the judge) considered that it was in respect of the plaintiff's dealings with the trust fund and his attempt to deliberately conceal overpayment that comprised, in substance, the foundation for his disbarment. Cooper AJ's treatment of the distinction on the one hand between the legal and commercial advice given by the plaintiff and his dealing with the client's funds was both correct and, to my mind, crystal clear. Although Cooper AJ referred to the failure to pay the Bar Association's costs as resulting from the plaintiff's bankruptcy in 1993 (from which he was discharged in 1996) his Honour did not suggest in any way that he was bankrupted either by the Bar Association or because he was unable to pay costs. Cooper AJ also pointed out that, since November 2001, the plaintiff was the secretary and licensee of the Portland RSL Club which was an honorary position and that he had volunteered his services as a barman and cleaner at the Club in order to improve its financial viability. The learned judged noted - "Apart from caring for his son Michael, during his recurrent bouts of depression, and charitable works, the plaintiff has done little else. Indeed, the evidence establishes that he has had little or no time to do anything else." 54 I turn now to the article. The clear intention of the opening thrust is to place the plaintiff in the class of barristers who dishonestly fail to fulfil their taxation obligations and were bankrupted by the Tax Office for doing so. The headline "Silk's purse empty" is obviously a reference to the plaintiff pointing to his "erstwhile bankrupt" status. It is obvious that the journalist was fully aware that the plaintiff was not a silk (a term for Senior Counsel) but the term was chosen to permit the obvious allusion to the hackneyed expression about the difficulty of turning a sow's ear into a silk purse, thus setting the tone for the ridicule that is to follow. The alternative possibility, namely, that it is merely a reference to the plaintiff's poverty is only incidental. The second paragraph suggests and the third paragraph makes explicit what is said to be the extraordinary fact that although (implicitly) in the same class as those either on the verge of being struck off or bankrupted yet again by the Tax Office for (again implicitly but clearly) dishonestly failing to file tax returns. The link between these barristers and the plaintiff is made clear by the phrase "Which brings us to Maurice Kriss" with which paragraph [4] commences. The crack about being a builder who went to the Bar is an echo of the cliché suggested by the headline. Then comes the false statement about the reason for which he was struck off, followed by a return to the theme of bankruptcy and thence to the "turn-up for the books" that "Maurie's back". 55 The belittling language and the carefully crafted sneers demonstrate, beyond all doubt in my mind, the malice of the author. It is true that the author also quotes passages from Cooper AJ's judgment but the ironic description of the passage as a "glowing recommendation" and the suggestion that it ought to commend the plaintiff to Mr Jodee Rich a person then much in the news as having been involved in the failure of a substantial public company is designed to ridicule the judge's view. Such was the notoriety of Mr Rich that in my view I am entitled to take judicial notice of the point being made by the author. After all, the author referred to Jodee Rich without further explanation, clearly expecting the readers to understand and appreciate what some might call irony but which is in fact a sneer and intended to be such. 56 The only relevance in the present context of the passages quoted from the judgment of Cooper AJ is whether their being included in the article indicates that it was written without malice or that the falsehoods which I have mentioned were not maliciously made. The thrust of the article, to my mind, is to ridicule the decision of the Court or, at the very least, to suggest that, despite that judgment, the plaintiff was not fit to be a barrister. The sarcastic comment with which the article concludes makes this clear, if the description of the plaintiff as "Maurie the Marvellous" and his return as a "marvel" did not already do so. 57 It follows that I am satisfied that the plaintiff has proved the malice of the publication complained of.

Damages for injurious falsehood 58 It is not disputed that a plaintiff must establish special damage, that is, actual pecuniary loss, as the "direct and natural result" of the false publication: Hall-Gibbs Mercantile Agency Limited v Dun (1910) 12 CLR 84 at 95-96 per Barton J; Palmer Breuyn and Parker Pty Limited v Parsons (2001) 208 CLR 388 at [73], [76]. 59 The evidence of special damage is slight - "Evatt: Q. Just estimate a cost [of travel to Sydney to obtain legal advice]. A. It was at least $150 I would have thought in petrol, at least in travelling, plus parking facilities in the city which was then about $18 a time. Evatt: Q. How many times did you come to Sydney? A. I came to Sydney at least half a dozen times." 60 The plaintiff said that he came to Sydney from Portland "to find out what my legal rights were". It is clear from the context that the plaintiff was referring to the generality of legal rights that he might be able to litigate arising out of the article. There was no differentiating between his rights in respect of the tort of defamation and his rights in respect of the tort of injurious falsehood. Having found, however, that the defendant is liable for injurious falsehood, it seems to me that the plaintiff should be able to obtain compensatory damages for his expenses of vindicating this right. I do not see that there is any sensible basis for differentiating the factual issues, from the plaintiff's point of view, between the torts. The result is, it seems to me, that the plaintiff is entitled to the sum of $1008 for travel to and parking in Sydney for the purpose of obtaining legal advice. 61 A further claim was made for medication for headaches, trouble sleeping, and bowel and stomach problems. Those symptoms started after the publication of the article. In the absence of any medical evidence, this chronological coincidence does not provide a sufficient basis for concluding that the plaintiff's headaches and other ill health was caused by his reaction to the article. Accordingly I reject the claim of $38 under this head. 62 Lastly, the plaintiff claims loss of brief fees following publication of the article. To this claim Mr Blackburn SC for the defendant objected that no particulars of economic loss had been provided despite request. Mr Evatt said that the plaintiff could not quantify this loss, commenting, "How do we know what our loss is?" The plaintiff did give some evidence about his practice following the publication of the article but this evidence does not justify any finding of special damage in respect of this claim.

Damages for defamation 63 The plaintiff gave evidence of the hurt and upset he suffered when the article was published. The plaintiff said that he learned of the article from a friend who had telephoned him and told him about it. He said that he was extremely upset, he felt ill and that he thought that the damage that it would have done to him would have made it difficult for him to start again. He said that he was belittled and denigrated and stated a number of things were not true but that the thing that hurt him greatly was the allegation that he had given shoddy legal financial advice. 64 The plaintiff said that a friend of his, Ms Susan Michaels, telephoned him and told him that it was a disgusting article and it was designed to humiliate and denigrate him. He said that he got no other calls but that there were a number of face-to-face conversations about the article. His next-door neighbour, a Mrs Val Hurley, called him over the fence and said that she had been given the article and said, "I was upset to hear that you were struck off for some shoddy legal advice". The plaintiff said that he tried to explain the matter to her but Mrs Hurley said that her husband had told her not to discuss the matter with him. The plaintiff said that Mrs Hurley said, "I thought you were a good neighbour" and walked away. The plaintiff said that this was the first time that someone had actually come up to him and spoken to him about the article and that he felt ill and very upset. When Ms Michaels had called him, he said that he felt very embarrassed that somebody he knew had read the article and, if she had read it, many others must have read it. The plaintiff said that he was spoken to by Mr Handley at the RSL Club. The plaintiff said that he was doing some work in the Club when Mr Handley said to him in a loud voice, "How come you are allowed to be the licensee of this Club when you have a criminal record?" The plaintiff said that he told him that he did not have a criminal record but that Mr Handley responded, "I read about it in the paper. In Sauce magazine it said you were struck off for giving shoddy financial-legal advice. They found you guilty of fraud and they struck you off". The plaintiff said that this was not true but what he was saying was not in the newspaper at all. The plaintiff said that this conversation took place in relatively close proximity to other people that were around the bar and that Mr Handley had approached him in front of a lot of other people. The plaintiff said that he was very upset and that he walked over to the bar where the vice-president of the Club was standing and asked him, "Did you hear what this man Wayne Handley has said?" The vice-president said that he did hear it and that Mr Handley had earlier discussed the article with him. The vice-president added that he was so concerned that he went to see the Club's legal advisers to see whether his being struck off for shoddy financial legal dealings would affect the Club, as he was the licensee. The plaintiff said that he was extremely upset by this and that at least half a dozen other persons spoke to him in a similar vein. The plaintiff's reaction was that he felt extremely embarrassed, hurt and sick. 65 The plaintiff said that, following the publication, many people whom he regarded as friends and would see at social functions became distant and cold although they remained polite. He said, "They didn't engage me in conversation, they would acknowledge I was there but they do not talk to me." He said that this still upsets him. About a week before the plaintiff gave evidence he said that a Ms Morris who feeds his animals whilst he is in Sydney was told by someone in a shop in Portland (where he lives) that two people had said to her, "You shouldn't be working out there, you can't trust him. And the house that he's living in isn't owned by him, it's owned by his wife." The plaintiff said that this information could only have come from the article. He said that this made him extremely upset because "I now know that nothing is dying down and it's still as bad as ever". The plaintiff says that he avoids most social activities to avoid embarrassment. Although he used to go regularly to Portland RSL Club, of which he was President, since the article he has only been there perhaps twice to cash a cheque because he needed some money. This was in March 2003. He has also resigned from the positions of President and Secretary, having been in these offices for two years. He resigned, he said, because he could not go into the Club without being belittled and people staring and laughing at him. He said that there are fewer invitations to go to social gatherings and says that when he is with a group of people he stays by himself and does not mix. Overall, the publication has caused him much anxiety. 66 The plaintiff said he had never received an apology from the defendant, which has upset him and has been worried about the conduct of the litigation. He said that he was shocked when he learned of the defendant's defence of truth because the imputation was not true. The plaintiff said that he obtained his practising certificate as a barrister in about April 2005 and, at the time of giving evidence, had a dozen or so briefs. It was put in cross-examination to the plaintiff that he was struck off for shoddy financial legal dealings, which he denied, although I do not think that the plaintiff had in his mind at that time the distinction between dealings and advice. In cross-examination the plaintiff corrected his evidence about Mr Handley's conversation, saying that he had actually said, "advice" and that he (the plaintiff) accidentally misquoted him when he said "dealings". He was cross-examined to suggest that this change of evidence was a fabrication. However, I thought that the plaintiff was telling the truth about this matter. Also the probabilities favour the use by Mr Handley of "advice" having regard to the terms of the article itself, which used the word "advice" in stating the reasons for the plaintiff's disbarment and did not use the word "dealings" at all. The plaintiff conceded that he was struck off for serious dishonesty involving Mrs Bach. He said this finding did not outrage him because it was a finding of the Tribunal although he was sorry about the matter. He accepted the justice of the decision that he be removed from the roll. The plaintiff said that he had licensed a room in Lachlan Macquarie Chambers. The plaintiff conceded that his conduct in relation to the funds could be described as shoddy. I asked Mr Kriss to assume that the article had not used the word advice but instead, the word conduct, whether he would have been upset. He said, "I would have had probably to accept that, sir". I asked him whether the real substance of his distress was that this was a matter that he thought he had put behind him but it was now in the public arena and was affecting his attempts to rehabilitate himself in the law. The plaintiff said that part of that was true. I then asked him, "Would it have been the major part do you think?" His answer was - A I think it was. It would have been equal to this regard, sir, that the way it was written - I am talking about the actual advice as I saw the advice was that I could have, I could redeem myself, I could redeem myself for anything that I had done wrong but I could not redeem myself as a person who gives shoddy legal advice. I am saying that I found that offensive. Somebody who is trying to re-establish himself - shoddy legal advice means that people shouldn't trust me to get a brief, or get advice from me because it would be shoddy. I saw that as a very damaging thing for me of a person who is starting off." 67 In further cross-examination by Mr Blackburn SC he said that he was upset because the matter had been regurgitated and he had been equally upset because it was wrong. It was put to him that this evidence was false. In my judgment the plaintiff was telling the truth. It was put to the plaintiff that his evidence about his conversation with Mrs Hurley was a fabrication. On this subject also, I accepted the plaintiff was telling the truth. The plaintiff said that he was upset not just about the fact that the article published the fact of his being struck off but that it was written in a way that belittled and humiliated him and his feelings were exacerbated "enormously" by the imputation.

Damages 68 The attack on the plaintiff's reputation constituted by the imputation found by the jury and which I have held to be false is not trivial. To some extent the quotation from the judgment of Cooper AJ was a counter-balance. However, it by no means reduced the damage to insignificance. Firstly, the article itself strongly hinted, if it did not actually state, that the judgment was unjustified; second, the quotation omitted the judge's characterisation of the quality of advice and was confined to the correction of the plaintiff's moral position, leaving the question of incompetence or bare competence untouched. The ordinary reader would have been left with the overwhelming impression that only the very foolish or (like Mr Rich) the very desperate would seek the plaintiff's legal assistance. The seriousness and, indeed, cruelty of the imputation cannot be properly assessed without taking into account the context in which it is placed. Just as context will be of crucial importance in assessing the defamatory meaning of particular words the destructive effect of an imputation can only be seen in the context in which the imputation is made. The imputation is conveyed by the matter complained of considered as a whole even though the imputation may take the form of words actually used. So considered, it is impossible to separate the imputation from the matter complained of which gave rise to it and in which it is set. 69 From the very beginning of the article, the journalist sets out to demean and ridicule the plaintiff and to destroy his reputation. The climax of this attack is the imputation found by the jury. It was the blow to the heart, a sort of coup de grace, despatching the remaining signs of life. The quotation from the judgment of Cooper AJ was nothing more than a eulogy and, like all eulogies, incapable of returning the corpse to life, its futility demonstrated by the irony of the concluding words of the article. 70 Damages are limited to those relating to relevant harm as defined: s 46. In particular, damages for defamation cannot include exemplary damages and must be unaffected by the malice or other state of mind of the publisher except so far as that malice or other state of mind affects the relevant harm. Section 46A describes the duty of the Court to ensure an appropriate and rational relationship between the harm and the amount of damages awarded and, in doing so, in respect of non-economic loss must consider the general range of damages for non-economic loss in personal injury awards in the State. It is trite that a plaintiff need not prove actual damage to reputation: damage is presumed to have been caused. 71 In Carson v John Fairfax & Sons Limited (1992-1993) 178 CLR 44 at 60 Mason CJ, Deane, Dawson and Gaudron JJ said (omitting some references) - "Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded by defamation. The three purposes no doubt overlap considerably in reality and ensure that 'the amount of a verdict is the product of a mixture of inextricable considerations' ( Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118 at 150 per Windeyer J). The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and 'if relevant' business reputation and vindication of the appellant's reputation…The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant…Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. 'The gravity of the libel, the social standing of the parties and the availability of alternative remedies' are all relevant to assessing the quantum of damages necessary to vindicate the appellant…" 72 Of course, exemplary damages are not available in New South Wales but, at all events, I do not think this is a case that warrants an award under this head. So far as aggravated damages is concerned, in cases where the injury done to the plaintiff is exacerbated by the conduct of the defendant higher compensatory damages may be payable. In Broome v Cassell & Co Limited [1972] AC 1027 Lord Reed said at 1085 - "Damages for any tort are or ought to be fixed at a sum which will compensate the plaintiff, so far as money can do it, for all the injury for which he has suffered. Where the injury is material and has been ascertained it is generally possible to assess damages with some precision. But that is not so where he has been caused mental distress or when his reputation has been attacked - where, to use the traditional phrase, he has been held up to public ridicule or contempt. Not only is it impossible to ascertain how far other people's minds have been affected, it is almost impossible to equate the damage to a sum of money. Any one person trying to fix the sum as compensation will probably find in his mind a wide bracket within which any sum could be regarded by him as not unreasonable - and different people will come to different conclusions. So in the end there will probably be a wide gap between the sum which on an objective view could be regarded as the least and the sum which could be regarded as the most to which the plaintiff is entitled as compensation. It has long been recognised that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation." 73 In this case, the imputation is the climax in a progression of insulting belittlement, which no fair-minded person could possibly have thought was justified by the matters disclosed in the judgment of Cooper AJ, or the decision of the Tribunal. Although the defendant sought to justify the imputation by asserting its truth, it did so rather by attempting to widen it to comprehend matters other than advice. Thus, the approach of the defendant did not involve an attempt to show that the advice - in the sense expressed by the Tribunal and Cooper AJ and determined by me - was indeed shoddy but, rather, that other conduct of the plaintiff was shoddy (which he did not dispute) and that it was this other conduct which was comprehended by the imputation or the matter complained of. I do not think that conducting the proceedings in this way should result in aggravated damages. The plaintiff was rigorously cross-examined as to other matters in the mode briefly described above. Again, although he was plainly upset by this questioning, I do not think that it would justify the award of aggravated damages. Nevertheless, I do not doubt that the plaintiff has been distressed by the necessity to commence and maintain this action and by the trial itself. 74 In addition to the personal distress, which I accept was suffered by the plaintiff, including his social isolation and continuing embarrassment, I think it is reasonable to infer that his attempts to return to practice had been adversely affected by the publication. It would be a very brave solicitor who was not personally acquainted with the plaintiff's level of professional competence who would brief him in light of the imputation as to incompetence so serious as to warrant disbarment. In the nature of things it is not possible to quantify the adverse affects of the publication on the plaintiff's practice but this factor cannot be left out of account in assessing his damages. It is in respect of both his personal reputation and his professional reputation that the element of vindication necessarily bulks large in the damages appropriate to be awarded.

Orders 75 Verdict and judgment for the plaintiff in defamation in the sum of $100,000. Verdict and judgment for the plaintiff in injurious falsehood in the sum of $1008. The defendant is liable to pay the plaintiff $101008. I reserve the question of interest and costs. The parties to have liberty to apply on 3 days' notice. **********

07/08/2006 - The words "interest and" added. - Paragraph(s) 75

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.

CITATION : Kriss v John Fairfax Publications Pty Ltd [2006] NSWSC 758 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Advertiser-News Weekend Publishing Co Limited v Manock [2005] SASC 82 Broome v Cassell & Co Limited [1972] AC 1027 Carson v John Fairfax & Sons Limited (1992-1993) 178 CLR 44 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSW WLR 135 Hall-Gibbs Mercantile Agency Limited v Dun (1910) CASES CITED : 12 CLR 84 Parker Pty Limited v Parsons (2001) 208 CLR 388 Polly Peck Holdings plc v Trelford [1986] QB 1000 Roberts v Bass (2002) 212 CLR 1 Robinson v Laws [2001] QCA 122 Zunter v John Fairfax Publications Pty Limited [2005] NSWSC 759

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Cases Cited (9)