FEDERAL COURT OF AUSTRALIA
Murphy v Nationwide News Pty Ltd [2021] FCA 381
File number: NSD 1246 of 2020 Judgment of: LEE J Date of judgment: 19 April 2021 Catchwords: DEFAMATION – proceeding against journalist and publisher of The Daily Telegraph in respect of two publications – applicant a high profile solicitor specialising in criminal law – five imputations alleged to have been conveyed – one imputation found to have been conveyed – journalist alleged applicant was incapable of representing his clients’ interests in court by reason of the ravages of age and associated deafness – consideration of any “variant” imputation – no such thing as a separate “Hore-Lacy defence” – justification defence – whether imputation was substantially true – applicant’s absence of appearance in court one of choice not because of being unable to appear – defence unsuccessful
PRACTICE AND PROCEDURE – referee appointed to inquire into and report on hearing of applicant – referee reports adopted – efficient use of court time
DAMAGES – where applicant sought general damages for non-economic loss – where applicant sought aggravated damages – assessment of general damages – where alleged unjustifiable conduct said to support award of aggravated damages – no circumstances either individually or in a combination sufficient to warrant aggravated compensatory damages
Legislation: Defamation Act 2005 (NSW) ss 25, 34, 35
Evidence Act 1995 (Cth) ss 140, 191
Federal Court of Australia Act 1976 (Cth) s 54A
Federal Court Rules 2011 (Cth) Div 28.6
Cases cited: Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632
Axon v Axon (1937) 59 CLR 395
Briginshaw v Briginshaw(1938) 60 CLR 336
CPB Contractors Pty Limited v Celsus Pty Ltd (No 2) [2018] FCA 2112; 268 FCR 590
David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667
John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291
Jones v Dunkel (1959) 101 CLR 298
JWR Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236; (2020) 377 ALR 467
Lewis v Daily Telegraph Ltd [1964] AC 234
Radio 2UE Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460
Setka v Abbott [2014] VSCA 287; (2014) 44 VR 352
Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 114 Date of hearing: 16-19 March 2021 Counsel for the Applicant: Ms S T Chrysanthou SC with Mr C Parkin Solicitor for the Applicant: Mark O’Brien Legal Counsel for the Respondents: Mr D R Sibtain with Ms C M Roberts Solicitor for the Respondents: Ashurst ORDERS
NSD 1246 of 2020 BETWEEN: MR CHRISTOPHER MURPHY
Applicant
AND: NATIONWIDE NEWS PTY LTD ACN 008 438 828
First Respondent
MS ANNETTE SHARP
Second Respondent
ORDER MADE BY:
LEE J
DATE OF ORDER:
19 APRIL 2021
THE COURT ORDERS THAT:
1.The matter be listed for further hearing and…
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Details
- Case
- [2021] FCA 381
- Decision Date
CaseChat Overview and Summary
In the case of Murphy v Nationwide News Pty Ltd, the plaintiff, Mr. Murphy, a high-profile criminal law solicitor, sought damages for defamation against the defendant, a journalist and the publisher of The Daily Telegraph, following the publication of two articles. The imputations in question suggested that Mr. Murphy was incapable of representing his clients' interests in court due to age-related issues and associated deafness. The court was required to determine the defamatory nature of the imputations, whether they were substantially true, and if the defendants' justification defence was valid.
The court found that one of the imputations had been conveyed, specifically that Mr. Murphy was incapable of representing his clients' interests in court due to age and associated deafness. The court dismissed the notion of a "variant" imputation and rejected the existence of a separate "Hore-Lacy defence." The justification defence was unsuccessful as the imputation was not substantially true. The court concluded that Mr. Murphy's absence from court was a matter of choice, not inability. Additionally, the court found that the plaintiff was not entitled to aggravated damages due to the lack of circumstances warranting such an award.
The court adopted reports from a referee appointed to inquire into the plaintiff's hearing capacity, confirming that while Mr. Murphy has a severe to profound sensorineural hearing loss, he can effectively communicate in a courtroom with the use of hearing aids and remote microphone devices. The court also addressed the defendants' justification particulars, finding that most were not proved or were irrelevant to the main imputation. The matter was listed for further hearing and entry of orders.
The court found that one of the imputations had been conveyed, specifically that Mr. Murphy was incapable of representing his clients' interests in court due to age and associated deafness. The court dismissed the notion of a "variant" imputation and rejected the existence of a separate "Hore-Lacy defence." The justification defence was unsuccessful as the imputation was not substantially true. The court concluded that Mr. Murphy's absence from court was a matter of choice, not inability. Additionally, the court found that the plaintiff was not entitled to aggravated damages due to the lack of circumstances warranting such an award.
The court adopted reports from a referee appointed to inquire into the plaintiff's hearing capacity, confirming that while Mr. Murphy has a severe to profound sensorineural hearing loss, he can effectively communicate in a courtroom with the use of hearing aids and remote microphone devices. The court also addressed the defendants' justification particulars, finding that most were not proved or were irrelevant to the main imputation. The matter was listed for further hearing and entry of orders.
Orders
Orders of the court
1. The matter be listed for further hearing and entry of orders at 10am on 21 April 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
With these matters in mind, I will proceed initially to record findings resulting from the reference, then make some further findings (particularly relevant to the Non Appearance Issue) and finally consider whether News and Ms Sharp have made out those parts of their justification particulars that remain in dispute.D.3 The Evidence Generally Relevant to JustificationThe Referee’s Reports As noted above, on 18 December 2020, an order was made that a referee audiologist, Ms Sarah Platt-Hepworth, inquire into and report upon four questions relevant to Mr Murphy’s hearing and his hearing capacity. The inquiry was to be conducted in such a manner as the referee considered would, without undue formality or delay, enable a just, efficient, timely and cost-effective resolution of the reference, and Mr Murphy was directed to make himself available for an examination or examinations as directed by the referee and to provide to the referee any medical records or other information or documents as directed by the referee. The process of the inquiry occurred efficiently and without incident, but when the report of the referee (Report) was provided to the Court and the parties, it left open the possibility that the referee had not been provided with some relevant recent reports from Mr Murphy’s audiologist, and noted the history of Mr Murphy’s use of two different types of hearing aids during 2020. Accordingly, on 11 February 2021, pursuant to FCR 28.67(1), without opposition, the Report was adopted subject to the preparation of a supplementary report (Supplementary Report) by the referee. The Supplementary Report was prepared promptly, and without any opposition by the parties, on 2 March 2021, the Supplementary Report was adopted. Relevantly, upon (and by the process of) adoption, the following was found by the Court:1.What is the current state of hearing of Mr Murphy?Mr Murphy has a severe to profound sensorineural hearing loss in both ears. The hearing loss is permanent. When compared with previous hearing test results (conducted by Sydney Adult and Children’s Ear Nose Throat Centre) provided by Mr Murphy, there has been no significant change in hearing levels since 2012. Without the use of hearing aids it would be expected that Mr Murphy would have great difficulty with auditory communication in all situations.2.Without limiting question 1, with the assistance of any hearing assistance technology to which Mr Murphy has access, what is the state of Mr Murphy’s ability to hear in a room of the size and configuration of a standard courtroom?Mr Murphy has access to hearing aids and other technology that has been shown to be appropriate for the degree of hearing loss. Mr Murphy has demonstrated proficiency in the use of this equipment. Aided speech tests demonstrate that with the use of his hearing aids it is likely that Mr Murphy can communicate effectively in a room the size and configuration of a standard courtroom. This is particularly the case when Mr Murphy utilises the remote microphone devices that he is in possession of. Using live voice rather than a recording which is closer in replicating the sound environment of the court Mr Murphy was able to score 100% in the auditory visual condition and in the auditory alone condition, using his hearing aids alone. His ability to hear clearly at a distance was demonstrated when using the Roger clip. Mr Murphy was able to score 90% correct. It must be emphasised that the material used for test purposes, places more focus on auditory ability alone than would be the case in a courtroom. In the courtroom Mr Murphy would also have the advantage of understanding the context of what is being communicated.3.How would the answer to question 2 be affected by the acoustics and level of ambient noise in a courtroom.Mr Murphy utilises a Roger Pen or Roger Clip to overcome the increased challenges provided by poor acoustics, reverberation, ambient noise and increased distance from the speaker.The main purpose of the Roger Pen or Clip is to pick up the speaker’s voice by being placed close to the sound source (in most cases the mouth), and in this way reduce the ambient noise. The Roger device transmits the speech closest to it directly to the hearing aids and is capable of transmitting the signal for up to 10 metres. Mr Murphy reports that he frequently either places the Roger device close to the sound source or gives it to the speaker. It can therefore be concluded that the acoustics and ambient noise in the court room have very little effect on Mr Murphy’s ability to hear, provided that he uses the Roger device(s) as he has reported. This was also demonstrated in the clinic with standardised test sentences.In the event that Mr Murphy does not use the Roger devices when in court and is relying on his hearing aids alone, it is my opinion that Mr Murphy may experience more difficulty hearing and understanding speech. It is likely that Mr Murphy would need to focus more effort in understanding speech particularly if the speaker does not have a clear voice, is not clearly visible or is at a considerable distance. Ambient noise may also interfere with Mr Murphy’s ability to understand speech when not using the Roger devices. However, Mr Murphy’s hearing aids do have the ability to enhance any speech signal above the level of ambient noise. Hearing aids such as those worn by Mr Murphy contain multi-adaptive directional microphones which are automatically activated in noisy situations. Test results demonstrated that Mr Murphy’s aided hearing is sufficient for effective communication in various conditions with his hearing aids alone. It is also likely that given Mr Murphy’s long standing hearing loss he has become adept at utilising visual cues to aid communication. His familiarity with the Court environment and his knowledge of the context of the material being discussed would also lessen the disability associated with the degree of hearing loss.4.Is Mr Murphy’s current state of hearing (including his ability to hear in a room of the size and configuration of a standard courtroom), likely to have been materially different at an earlier date during 2020 and, if so, in what way?Mr Murphy provided copies of previous hearing test results dating from 2012 to 2020. These tests were carried out by Sydney Adult and Children’s Ear Nose and Throat Centre. There has been no significant change in Mr Murphy’s hearing levels during this period or when compared to tests carried out for the purposes of this report. On this basis, I consider that it is unlikely that Mr Murphy’s hearing was materially different at any earlier date in 2020.
Decision
Reasons for decision
I am fortified in this conclusion by reason of the fact that when he does want to appear in court for what he perceives to be an important reason, he does so. It was uncontroversial that Mr Murphy has appeared a number of times in the past 10 years for what he described as “high-profile” matters: Murphy 2 (at [9]). This appears to have been for some sort of protective or pastoral reason for at least some clients; for others, it may have been because of the increased publicity that these appearances generated (it is unnecessary to determine the reasons for his appearance in each of these special cases).Conclusion on the Disputed Particulars The findings I have made as to the Incapacity Issue and the Non Appearance Issue are sufficient to dispose of most of the disputed particulars. I do accept that at some time prior to April 2020, Mr Murphy began using remote microphone devices to assist his hearing at distances of greater than one metre but that he has continued to experience some difficulties hearing: (a) where there is background noise; (b) when he is unable to follow visual cues; (c) where the speaker does not have a clear voice; or (d) where the speaker has an accent: see Particular H2. This is all consistent with the agreed fact that Mr Murphy is not capable of appearing as an advocate in court, or as an instructing solicitor in court, without the use of his hearing aids and Roger devices. But, as I found above, with the use of his hearing aids and Roger devices, he is capable of appearing in court. As to Particular I1, it was alleged that earlier this year Mr Murphy experienced various difficulties during a hearing of the Mould proceeding. The precise sub-particulars are set out (at [39]) above. As to:(1)Particular (a): I accept that Mr Murphy, by his legal representatives, requested participants use Roger devices because of Mr Murphy’s severe hearing loss, but this is entirely consistent with the findings of the evidence as to the Incapacity Issue. In any event, this particular was accepted by Mr Murphy: T280.32.(2)Particulars (b), (c) and (d): although the use of Roger devices requires some instruction (as is evident from particular (a)), this is innocuous; similarly, the notion (that seems to be the substance of particulars (c) and (d)) that the Roger devices need to be charged is hardly surprising. Mr Murphy confirmed that the devices have an eight hour battery life: T117.41–4.(3)Particular (e): was denied in cross-examination; the transcript is unclear and I do not think the evidence is such as to allow a finding to be made that Mr Murphy did not notice that his mobile telephone emitted a loud noise which was heard by others in court: T118.3–19.(4)Particulars (f) and (g): that Mr Murphy experienced hearing difficulties when communicating with his instructing solicitor when he was not wearing a Roger device and the Court officer had to speak loudly and close to Mr Murphy when administering the oath, goes nowhere; the first difficulty is that these allegations were not put to Mr Murphy; the second is that no evidence to this effect was elicited in chief from Mr Kalantzis, Mr Murphy’s solicitor, who was called in the case of News and Ms Sharp; and the third is that even if these particulars were proved (which they were not), this would not be inconsistent with the agreed fact and my findings as to the Incapacity Issue – it is uncontroversial that Mr Murphy needs to wear Roger devices to participate fully in court proceedings (although this admission was made in the context of Mr Murphy appearing in Court, rather than participating as a litigant).
Ratio Decidendi
Legal Principle Established
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