New South Wales Court of Appeal CITATION : SOMOSI v JOHN FAIRFAX PUBLICATIONS PTY LTD [2004] NSWCA 176 HEARING DATE(S) : 2 June 2004 JUDGMENT DATE : 11 June 2004 JUDGMENT OF : Mason P at 1; Sheller JA at 2; Stein AJA at 9 DECISION : Leave to appeal refused with costs. CATCHWORDS : DEFAMATION - whether publication capable of carrying imputations as framed - ordinary reader of newspaper does not read articles in the way a lawyer would - leave to amend statement of claim LEGISLATION CITED : Defamation Act 1974 CASES CITED : John Fairfax Publications Pty Ltd v Rivkin 2003) 77 ALJR 1657 PARTIES : Robert Somosi - Claimant John Fairfax Publications Pty Ltd - Opponent FILE NUMBER(S) : CA 41210/03 COUNSEL : C A Evatt/A Maroya - Claimant T Blackburn SC/ A Foel - Opponent SOLICITORS : LAC Lawyers - Claimant Freehills - Opponent LOWER COURT Supreme Court JURISDICTION : LOWER COURT 20229/03 FILE NUMBER(S) : LOWER COURT Levine J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41210/03 SC 20229/03 MASON P SHELLER JA STEIN AJA SOMOSI v JOHN FAIRFAX PUBLICATIONS PTY LTD On 3 September 2002 the opponent published an article about the claimant in the Sydney Morning Herald entitled "Barrister skipped court as client got life". As a result of this article, the claimant brought proceedings against the opponent in the Supreme Court to recover damages for defamation. Pursuant to s7A(2) of the Defamation Act 1974, Levine J tried separately the issue of whether the material complained of was capable of conveying to the ordinary reasonable reader the imputations relied upon by the claimant. Levine J concluded that the article was not capable of carrying the imputations relied on but granted leave to the claimant to file an amended statement of claim taking into account the reasons his Honour gave for his decision. In seeking leave to appeal, the claimant accepted Levine J's finding that the imputations were based on the central proposition that Mr Wing Chung (the client) was sentenced to life imprisonment because the claimant failed to comply with his obligations as a barrister to turn up and plead his client's case in the sentencing proceedings. However, the claimant challenged the finding of his Honour that the article was not capable of carrying the imputations relied on. Held: per Sheller JA, Mason P and Stein AJA agreeing: 1. The trial Judge was correct in finding that the publication complained of is not capable of carrying any of the imputations as framed by the claimant. 2. As recognised by the trial Judge, it is important to be mindful of the need for lawyers, when considering the capacity of written material to cover the alleged imputations, to remember that the ordinary reader of newspaper articles does not read them in the way a lawyer would, directing attention to exact meanings of words and phrases. John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 3. Various flaws were acknowledged by counsel in the way the imputations were drafted. The claimant has been given leave to amend his statement of claim with these considerations in mind. Legislation: Defamation Act 1974 Cases cited: John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 ORDERS Leave to appeal refused with costs. ********** IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41210/03 SC 20229/03 MASON P SHELLER JA STEIN AJA Friday, 11 June 2004 SOMOSI v JOHN FAIRFAX PUBLICATIONS PTY LTD Judgment 1 MASON P: I agree with Sheller JA. 2 SHELLER JA: The claimant, Robert Somosi, seeks leave to appeal from a decision of Levine J given on 28 November 2003. The claimant brought proceedings against the opponent, John Fairfax Publications Pty Ltd, to recover damages for alleged defamation in an article published by the opponent in the Sydney Morning Herald on 3 September 2002 with the headline [1] "Barrister skipped court as client got life". Although to be read as a whole, the particular parts of the article complained of, in addition to the headline, were [the numbers have been added for the purposes of the proceedings]: [2] "Bankrupt barrister Robert Somosi was en route to the East Coast Blues & Roots Music Festival in Byron Bay when he should have been in court for the sentencing hearing of his client, who got life, the Administrative Decisions Tribunal was told yesterday." [3] "The NSW Bar Association has brought two complaints of professional misconduct against the former high-flying criminal barrister, who was struck off the practitioners roll last year by the Supreme Court." [5] "One referral was from District Court judge Frederick Kirkham over Mr Somosi's non-appearance at Wing Chung's 1998 sentencing hearing on drugs charges, in which the judge imposed a life sentence." [8] "David Higgs, SC, for the Bar Association, said while there appeared to be communication difficulties between Mr Somosi and his instructing solicitor and uncertainty in Mr Somosi's mind whether he was required to attend his client's hearing, he had not clarified that uncertainty." [10] "He said Mr Somosi's attitude that he had done all that he could did not demonstrate 'contrition or understanding' concerning his obligation to his client, and would be a 'marker' if the barrister wanted to be readmitted to practice in the future." On the right hand side of the article was a photograph captioned [13] "En route to blues… time out for Robert Somosi yesterday." showing a person, said to be the claimant, from his left side with the head bowed and his hands largely covering his face. 3 Pursuant to s7A(2) of the Defamation Act 1974, Levine J tried separately the issue of whether the material complained of was capable of conveying to the ordinary reasonable reader the imputations as framed by the claimant. In their amended form, when the trial came on before Levine J, the imputations relied on were as follows: "(a)(i) The NSW Bar Association brought a complaint of professional misconduct against the Plaintiff because the Judge imposed a life sentence on his client when the Plaintiff failed to appear at the sentencing hearing. (b) The Plaintiff was so ashamed of his conduct when his client got life because he skipped Court that he covered his face with his hands at the Administrative Decisions Tribunal hearing (1, 2, 5 and 13). (b)(i) The Plaintiff was so ashamed of his conduct when his client got life because he skipped Court that he prevented the Sydney Morning Herald from taking a photograph of his face. (c) The Plaintiff caused his client Wing Chung to be sentenced to life because he skipped Court and did not appear for him (as he should have done). (d) The Plaintiff failed in his obligations as a barrister because he preferred his own interests to the interests of his client with the result his client was sentenced to life imprisonment (1, 2, 3, 5 and 13). (e) The Plaintiff deserted his client by skipping Court with the result Wing Chung got life instead of a less severe sentence." 4 Levine J concluded that the article was not capable of carrying the imputations the claimant relied on but granted leave to the claimant to file an amended statement of claim taking into account the reasons the Judge gave for his decision. His Honour did not, we were told, enter a verdict for the opponent on the imputations pleaded. 5 After setting out the imputations, Levine J said: "5 It is quite clear from submissions that the plaintiff desires to have litigated the proposition that his former client, Wing Chung, was sentenced to life imprisonment by his Honour Judge Kirkham, because Mr Somosi failed to comply with his obligations as a barrister to turn up and plead his client's cause in the sentencing proceedings or, to put it another way, 'Had I been there', says Mr Somosi, 'Mr Wing Chung would not have received a life sentence.' 6 Whilst acknowledging, as I have to, because I raised the point myself at the beginning of submissions, the difficulty for a lawyer to read this material in a reasonable way for the purposes of the current exercise, it is not impossible. It is clear that the ordinary reasonable reader is taken to read everything, including the headline. In this instance, that reader will be taken to have a read a headline, 'Barrister skipped court as client got life' , which, by itself, means in ordinary English something contrary to the proposition that underpins the imputations. 7 That headline, and paragraphs 2, 5, 8 and 10, in my view, putting myself as best I can in the position of this reader, are all incapable of conveying the fundamental proposition to which I have referred. 8 A fair reading of this article points to the sting to the effect that it was alleged that the plaintiff had committed professional misconduct by failing to appear for his client on sentencing proceedings for a serious criminal charge. 9 That, in effect, disposes of all the imputations on which the plaintiff seeks to rely. 10 There are, however, two imputations ((b) and (b)(i)), which include the concept I am not prepared to accept, that flowed most expressly from the photograph. I suppose that in the end an imputation to some extent based upon covering the face could well go to the tribunal of four citizens to determine what in fact it means. However as proposed they cannot arise." 6 Mr Evatt, who appeared for the claimant, accepted that the claimant's imputations were based on the central proposition that Mr Wing Chung was sentenced to life imprisonment by his Honour Judge Kirkham because the claimant failed to comply with his obligations as a barrister to turn up and plead his client's cause in the sentencing proceedings. One finds, as part of the imputations, these statements: (a)(i) "… brought a complaint …against the plaintiff because the Judge imposed a life sentence on his client when the plaintiff failed to appear at the sentencing hearing", (b) "…was so ashamed of his conduct when his client got life because he skipped Court …", (b)(i) "… was so ashamed of his conduct when his client got life because he skipped Court", (c) "… caused his client … to be sentenced to life because he skipped Court and did not appear for him …", (d) "… preferred his own interests to the interests of his client with the result that his client was sentenced to life imprisonment …", (e) "… deserted his client by skipping Court with the result … got life instead of a less severe sentence." 7 I agree with Levine J that the publication complained of is not capable of carrying any of the imputations so framed. Levine J was mindful, as am I, of the need for lawyers, when considering the capacity of written material to carry the alleged imputations, to remember that the ordinary reader of newspaper articles does not read them in the way a lawyer would, directing attention to exact meanings of words and phrases. Most recently in John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at 1661-2 [23] – [26], [28] McHugh J said (case references omitted): " The tests for meaning and defamation [23] Traditionally, courts have accepted that juries are more likely to find a publication defamatory than a judge. Lord Devlin famously said: '[T]he layman's capacity for implication is much greater than the lawyer's. The lawyer's rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory.' [24] Consequently, for the purposes of a defamation action, the natural and ordinary meaning of words contains "all such insinuations and innuendoes as could reasonably be read into them by the ordinary man" per Lord Devlin. Lord Reid said: 'The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.' [25] A reader may be acting reasonably even though he or she engages in "a certain amount of loose thinking". This is because, as Lord Reid also pointed out: 'The ordinary reader does not formulate reasons in his own mind: he gets a general impression and one can expect him to look again before coming to a conclusion and acting on it. But formulated reasons are very often an afterthought.' [26] However, although a reasonable reader may engage in some loose thinking, he or she is not a person "avid for scandal". A reasonable reader considers the publication as a whole. Such a reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning. The reasonable reader considers the context as well as the words alleged to be defamatory. If "[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together.". But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article. … [28] The above principles and considerations are as relevant in determining whether the jury's answers in the present case were reasonable as they are when a court has to consider whether words are capable of a defamatory meaning. But in a case where the jury has returned a finding of no imputation or no libel, the have less force than in a case where the jury has found the defamatory meaning alleged and pleaded. They indicate the outer limits of meaning and defamation; they give far less assistance in determining whether the jury was bound to find the defamatory meaning alleged and pleaded." 8 During the course of argument Mr Evatt conceded various flaws in the way the imputations were drafted. Some are not different in substance, notably (c) and (e) and (b) and (b(i). The President asked whether the article was capable of carrying an imputation that the claimant's conduct contributed to the Judge imposing a life sentence on his client. I do not think this Court should pass upon that question. Plainly, the imputations are not so narrowly stated. The claimant has been given leave to amend his statement of claim. In my opinion, we should do no more than refuse leave to appeal and I would so order. The claimant should pay the opponent's costs of the application. 9 STEIN AJA: I agree with Sheller JA. ********** Last Modified: 06/15/2004 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.