SOMOSI v JOHN FAIRFAX PUBLICATIONS PTY LTD [2003] NSWSC 1129

New South Wales Supreme Court

CITATION : SOMOSI v JOHN FAIRFAX PUBLICATIONS PTY LTD [2003] NSWSC 1129 HEARING DATE(S) : 28 November 2003 JUDGMENT DATE : 28 November 2003

JUDGMENT OF : Levine J DECISION : 1. Leave granted to the plaintiff to file an amended statement of claim taking into account these reasons. ; 2. The amended statement of claim is to be filed by 5pm Friday 6 February 2004.; 3. The plaintiff is to pay the defendant's costs of today.

CATCHWORDS : Imputations - capacity ROBERT SOMOSI (Plaintiff)

PARTIES : v

JOHN FAIRFAX PUBLICATIONS PTY LTD (Defendant) FILE NUMBER(S) : SC 20229 OF 2003 C Evatt (Plaintiff) COUNSEL : T Blackburn SC (Defendant) Ashlars (Plaintiff) SOLICITORS : Freehills (Defendant)

- 1- Ex tempore: revised [2003] NSWSC 1129 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

JUSTICE DAVID LEVINE

FRIDAY 28 NOVEMBER 2003

20229 OF 2003

ROBERT SOMOSI (Plaintiff)

v

John Fairfax Publications Pty Ltd (Defendant)

JUDGMENT (Imputations – capacity) 1 The plaintiff sues the defendant in relation to a publication on 3 September 2002. 2 The publication bears the headline, "Barrister skipped court as client got life", the by-line of Leonie Lamont, and approximately twelve paragraphs of text accompanied by a photograph with a caption, "En route to blues ... time out for Robert Somosi yesterday." The photograph appears to depict the plaintiff covering his face with his hands. The photographer is identified. 3 The article (appended hereto), on its face, could fairly easily be understood as reporting proceedings before the Administrative Decisions Tribunal relating to two complaints of professional misconduct against the plaintiff. Only one of the areas of alleged misconduct is the subject of this litigation. 4 The imputations upon which the plaintiff seeks to rely are 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 (paragraphs 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 that his client was sentenced to life imprisonment (paragraphs 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. 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. 11 I will grant leave to the plaintiff to file an amended statement of claim taking into account the reasons that I have just given. 12 The plaintiff is to pay the defendant's costs of today. The amended statement of claim is to be filed by 5pm on Friday 6 February 2004.