Somosi v John Fairfax Publications Pty Ltd

[2003] NSWSC 1129

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

PARTIES :

ROBERT SOMOSI
(Plaintiff)

v

JOHN FAIRFAX PUBLICATIONS PTY LTD
(Defendant)

FILE NUMBER(S):

SC 20229 OF 2003

COUNSEL:

C Evatt
(Plaintiff)

T Blackburn SC
(Defendant)

SOLICITORS:

Ashlars
(Plaintiff)

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.

APPENDIX A

The Sydney Morning Herald

3 September 2002

1 Barrister skipped court as client got life

Leonie Lamont

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.

4 He had not filed a tax return for 17 years, and owed the Tax Office almost $900,000 when he went bankrupt in 1995.

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.

6 The second referral was from Mr Somosi’s former wife, Patricia Shelley, and concerned Mr Somosi’s failure to honour an undertaking he gave to the Family Court to pay about $10,000 in maintenance and school fees in 1995.

7 Mr. Somosi, who has denied he is guilty of professional misconduct, said at all times he had acted “in the best possible faith”.

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.

9 He had not ended the retainer or returned the brief.

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.

11 Similarly, for a lawyer not to honour an undertaking to the court – in this case during a Family Law matter – was serious and was professional misconduct, he said.

12 The hearing continues.

13 En route to blues … time out for Robert Somosi yesterday. Photo

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Last Modified: 12/03/2003