Nationwide News Pty Limited v Murphy [1999] NSWCA 118

Reported Decision : (1998) Aust Torts Reports 81-506

New South Wales Court of Appeal CITATION : Nationwide News Pty Limited v Murphy [1999] NSWCA 118 FILE NUMBER(S) : CA 40630/98 HEARING DATE(S) : 1 March 1999 JUDGMENT DATE : 5 May 1999

PARTIES : Nationwide News Pty Limited v Christopher Murphy JUDGMENT OF : Meagher JA at 1; Sheller JA at 10; Sheppard AJA at 23

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 20112/98 LOWER COURT JUDICIAL OFFICER : Abadee J

. COUNSEL : Appellant: A. Shand QC/T. Blackburn Respondent:B. McClintock SC. SOLICITORS : Appellant: Blake Dawson Waldron Respondent:Gilbert & Tobin CATCHWORDS : Defamation - amendment of pleadings - appeal to strike out re-pleaded imputations - use of "shyster" - Pleadings: SCR Pt 67r11 - requirement of specificity - word usage in pleading imputations ACTS CITED : Supreme Court Rules Pt 67. r 11. Lewis v Daily Telegraph Limited [1964] AC 234; [1963] 1 QB 340; CASES CITED: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; Mirror Newspapaers Limited v Harrison (1982) 149 CLR 293; DECISION : Application for leave to appeal dismissed with costs.

- 15 - IN THE SUPREME COURT NEW SOUTH WALES COURT OF APPEAL CA 40630/98 CORAM MEAGHER JA SHELLER JA SHEPPARD AJA

Wednesday, 5 May 1999.

NATIONWIDE NEWS PTY LIMITED (ACN 008 438 828) v Christopher MURPHY JUDGMENT

1 The plaintiff, Mr Christopher Murphy, is a Sydney solicitor. The defendant, which produces a newspaper called "The Daily Telegraph" on Monday 16 February 1998 said of him, in a gossip column, the following words (and I have omitted irrelevant words): "Murphy the businessman, said his staffer, should be referred to as C M Murphy to prevent him being confused with "celebrity" criminal lawyer Chris Murphy "It seems that Chris Murphy, who also own 60 per cent of radio station 2SM, has, in the past, been mistaken for solicitor Murphy, better known for getting drug dealers and advertising guru John Singleton off criminal charges." 2 The plaintiff alleged that these words were defamatory, and in his Statement of Claim pleaded the following imputations (italics supplied): "(a) that the Plaintiff was a solicitor notorious for obtaining acquittals of guilty drug dealers thus hampering the enforcement of the law; "(b) that the Plaintiff was a shyster who deserved to be ridiculed by the Defendant's snide reference to him ." 3 Levine J held that the words italicized should be struck out. The plaintiff then filed an amended Statement of Claim in the same terms as the first Statement of Claim except omitting the italicized words. The defendant's application to strike out the new Statement of Claim was dismissed by Abadee J, and from that decision the present appeal is brought. 4 Applying Mirror Newspapers Limited v Harrison (1982) 149 CLR 293, to the present facts, Mr Shand pointed out that to say of an advocate that he obtained acquittals for all his clients, even if they were charged with drug offences, and even if they were all guilty as charged, is to bestow praise, not blame, on that advocate, lauding his skill in persuading the judge or jury that there was at least a reasonable doubt. An inference of a defamatory kind can only be drawn if the reader has a pre-existing prejudice against drug-dealers and their legal agents. 5 Learned senior counsel for the applicant/defendant Mr Shand QC, submitted that the words which I have quoted from the Daily Telegraph were incapable of bearing the defamatory meaning. The sheet-anchor of his argument was the judgment of Mason J (as he then was) in Harrison's Case, supra. His Honour said: "In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader." 6 On the other hand, learned senior counsel for the defendant, Mr McClintock QC, relied on the series of cases which decide that a jury might act on its impressions, even if imprecise, irrational, loose or fanciful. Perhaps the most trenchant enunciation of this principle is to be found in Lewis v Daily Telegraph [1054] AC 234, where Lord Devlin said: "…it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also fire: but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt: but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded." 7 I must say that I feel there is tension between the two lines of authority. On the one hand, one must discard all prejudices, but on the other may act on impressions (although the latter might arise out of prejudices). 8 In the present case, however, I think an ordinary reasonable reader of the words in question could, but need not, conclude that the words are defamatory. One would not read them as conveying an intention to praise Mr Murphy. The fact they appear in a gossip column would indicate that they are not meant to be anodyne. There is a hint that Mr Murphy is a little closer to his clients than propriety would dictate. And the inverted commas around the word "celebrity" give rise to an inference that his fame is not entirely salutary. 9 In my view Abadee J was correct, a jury could find the words defamatory and the appeal should be dismissed with costs. 10 SHELLER JA: Christopher Murphy, a solicitor, brought proceedings against the defendant, Nationwide News Pty Limited, to recover damages for defamation. The defendant successfully applied to Levine J to have the imputations lettered (a) and (b) contained in the statement of claim struck out. In his reasons for judgment Levine J granted the plaintiff leave to re-plead and indicated that he would have allowed the imputations to go to the jury if the last part of each of the imputations as pleaded was excised. The plaintiff re-pleaded accordingly and on 24 July 1998 Abadee J dismissed a notice of motion by the defendant to have the re-pleaded imputations struck out. This is an application for leave to appeal from that decision. 11 The text complained of was published by the claimant and defendant in the "Daily Telegraph" on 16 February 1998. In what was said to be a gossip column, under two photographs, one of a person referred to as "Entertainment's C M Murphy" and the other of the plaintiff referred to as "lawyer Chris Murphy" appeared an article headed "Lots in a name". In the article it was said that "Murphy the businessman …. should be referred to as C M Murphy to prevent him being confused with 'celebrity' criminal lawyer Chris Murphy". The article immediately continued: "It seems that CM, who also owns 60 per cent of radio station 2SM, has, in the past, been mistaken for solicitor Murphy, better known for getting drug dealers and advertising guru John Singleton off criminal charges." 12 These passages in the context of the article as a whole were alleged to carry the defamatory imputations (a) and (b) which were as follows: "(a) that the Plaintiff was a solicitor notorious for obtaining acquittals of guilty drug dealers; (b) that the Plaintiff was a shyster." 13 It was agreed that the phrase "drug dealers" in the text meant "guilty drug dealers". "Shyster" is defined in the Macquarie Dictionary as meaning "a lawyer who uses unprofessional or questionable methods". 14 The claimant submitted that the text was incapable of bearing a defamatory meaning or, put another way, the text did not carry an imputation capable of bearing a defamatory meaning. In particular it was said of (a) that the text suggested no impropriety or other conduct that would make the opponent "notorious". A solicitor without any impropriety may obtain an acquittal of a guilty client by putting the Crown to proof of its case or by persuading a judge or jury that the client has not been proved guilty. The text did not suggest that the opponent was in breach of his duty as a solicitor. The material was not defamatory because some readers might believe that solicitors who obtain acquittals of guilty clients do so by improper means. In this regard, Mr Shand QC, who appeared for the claimant, relied on what was said, particularly by Mason J, as he then was, in Mirror Newspapers Limited v Harrison (1982) 149 CLR 293. In that case the matter complained of was in what his Honour described at 298 as a mere newspaper report of the fact of the plaintiff's arrest and charge. His Honour said at 301: "A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff." 15 On the other hand Mr McClintock, who appeared for the opponent, stressed the observation of Lord Devlin in Lewis v Daily Telegraph Limited [1964] AC 234 at 285 in a passage quoted by Brennan J in Mirror Newspapers Limited v Harrison at 304, that "it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt: but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded." 16 In Mirror Newspapers Limited v Harrison at 302 Mason J quoted with approval the following remarks of Holroyd Pearce LJ in Lewis in the Court of Appeal [1963] 1 QB 340 at 374: "When persons publish words that are imprecise, ambiguous, loose, fanciful or unusual, there is room for a wide variation of reasonable opinion on what the words mean or connote. The publisher can hardly complain in such a case if he is reasonably understood as having said something that he did not mean. But when words with a precise and well known meaning are used without the addition of any expressions which could impart some other flavour to them, it is not fair to twist them from their normal sense." 17 As to (b) the claimant submitted that the text rather than suggesting impropriety praised the opponent as a skilled and successful criminal lawyer. Further, the word "shyster" was too vague and imprecise and accordingly the imputation not pleaded with sufficient specificity to comply with Pt 67 r11 of the Supreme Court Rules; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. 18 The claimant argued that the text of the article, as a matter of construction, meant no more than that the plaintiff was known for his success in obtaining acquittals for persons charged with drug offences which they had committed. I do not agree. To describe a person as a celebrity is to describe that person as being well known or famous. There is nothing disparaging about that. But to place quotation marks around the word immediately raises a question in the mind of the reader as to whether the description is deserved. Having raised this question the writer continues "solicitor Murphy" is "better known for getting drug dealers off criminal charges". It may be that this can be read as a neutral or complimentary remark. I doubt it. 19 The ordinary reasonable reader could read it as suggesting that Mr Murphy engages in, or is better known, for behaviour inconsistent with being truly a celebrity criminal lawyer or a solicitor acting according to ordinary standards of propriety. The writer concentrates on drug dealers, that is to say persons who in fact deal in drugs and who have got off criminal charges. The ordinary reasonable reader's reaction to this could be that guilty drug dealers should not get off and would not get off but for Mr Murphy's input. In my opinion, it would be open to a jury to find that the ordinary reasonable reader would conclude from the context that that input was by the use of unprofessional or questionable methods. Why else concentrate on persons guilty of dealing in drugs as distinct from persons innocent or otherwise charged with drug offences? 20 In truth, of all the persons for whom Mr Murphy may have acted, charged with such offences, if a compliment was meant, it would have been for his success in defending them, not simply for successfully defending those who were in fact guilty, if ever it could be demonstrated that those acquitted were in fact guilty. The concentration on the "celebrity" plaintiff's alleged success in the case of drug dealers (that is to say, persons who in fact deal in drugs) indicates that the writer set out to put in the mind of the ordinary reasonable reader the idea that this success was due to unprofessional or questionable methods. 21 The word "shyster" has a meaning distinct and certain enough to satisfy the requirements of specificity. For reasons I have already given I think the text capable of carrying the imputation pleaded, though arguably (b) adds nothing to (a). But that was not argued below. 22 I would dismiss the application for leave to appeal with costs. 23 SHEPPARD AJA: In this matter I have had the advantage of reading the judgments to be delivered by Sheller JA and Meagher JA. Subject to one matter I am in 0agreement with their reasons and conclusions. The problem I have arises because of the primary Judge's conclusion that it was appropriate to treat the matter complained of as capable of meaning that the opponent was a shyster. My difficulty is that a reference to dictionaries shows that the word has a number, if not of different meanings, then certainly of a variety of shades of meaning and usages. In my respectful opinion, it is undesirable to permit an imputation to be relied upon if, at the trial, it is likely, or even possible, that there may be doubt as to what the meaning of the imputation itself is. After all, an imputation, in the nature of things, has itself to be a gloss on the words which are complained of. Usually it will not comprise the words used by the author of the defamatory matter. It is well known that glosses on words have their dangers. If one is not careful, they can be productive of uncertainty rather than clarity. Particularly in this area of the law, one has to be careful that one does not create a further problem in endeavouring to deal with another. 24 One purpose of requiring imputations to be pleaded or particularised (in New South Wales, they, rather than the defamatory matter, constitute the cause of action) is to require a plaintiff to formulate with a degree of precision what he or she says the words mean. That, so it seems to me, is one of the purposes of Part 67 rule 11 of the Rules. 25 The word "shyster" is defined in the Oxford English Dictionary (1989) to mean a lawyer who practises in an unprofessional or tricky manner; especially one who haunts the prisons and lower courts to prey on petty criminals. Hence, it means anyone who conducts his business in a tricky manner. Examples of usages given in the dictionary include reference to a prisoner who must wait "next day for the visits of the 'shyster' lawyers - a set of turkey-buzzards whose touch is pollution and whose breath is pestilence". In the Shorter Oxford Dictionary a "shyster lawyer" is defined as being one who defends drug dealers and takes payment in cocaine. 26 The origin of the word is apparently obscure but the better view seems to be that it came from the United States. According to Webster, it means one who is professionally unscrupulous, especially in the practice of law or politics. The dictionary suggests that it may mean "pettifogger". A usage given is, "too many shysters, too many ambulance chasers, too many political confidence men, too many blackmailers". Roget's Thesaurus says that a synonym for "shyster" is a pettifogger. According to the Shorter Oxford Dictionary a "pettifogger" is a legal practitioner of inferior status who gets up or conducts petty cases, especially one who employs mean, cavilling practices; see also the Macquarie Thesaurus at para 427 under the heading "lawyer". 27 It seems unlikely to me that the words used by the author of the article in question were intended to be in any way complimentary. Certainly, that is how I would read them myself. The tenor of the article is to scoff at or to poke fun at - really to ridicule - those to whom it refers. For reasons given by the other members of the Court, the words are plainly capable of being defamatory. The difficulty is the satisfactory formulation of the imputations. The only point I make is that it seems undesirable to leave to the jury which tries the case a word which is of uncertain meaning as an essential part of an imputation. 28 If it be correct to say that the word adds nothing to the first imputation as to which I have no problem, it seems, with respect, to be unwise to leave to the trial Judge, the jury and the parties' legal representatives the task of dealing with an imputation which may give rise to difficulties and which, without any unfairness to the opponent, can be avoided by its omission. On the other hand, if "shyster" is intended to add something to the first imputation or to found an alternative case, it has the difficulties about it to which I have referred. 29 In the result, I would vary the orders made by the primary Judge by making an order that the imputation, "He is a shyster", be omitted. Otherwise, I would dismiss the appeal with costs. * * * * * * * * * * *