Bankrupt once-struck-off barro described as “shoddy” wins $101,008

In MK v John Fairfax Publications Pty Ltd [2006] NSWSC 758, the Sydney Morning Herald was ordered to pay $100,000 in damages for defamation to a barrister about whom it published a sneering error-riddled excoriation. Just shows that you should not kick a barrister when he’s down. [Update: in April, the NSW Court of Appeal overturned the decision and ordered a new trial on the basis that the trial judge exhibited ostensible bias against the newspaper, and should have recused himself on the defendant’s application: John Fairfax Publications Pty Ltd v Maurice Kriss [2007] NSWCA 79.] The article included the passage:

“Which brings us to [the barrister], an aged pensionr who’s been working as a barman and cleaner at the Portland RSL Club, near Lithgow. [The barrister], who was struck off some sevel years ago, recently won a Supreme Court battle against the Legal Practitioners Admission Board and the Bar Association.

Not that [the] poor [barrister] ever had much experience as a barrister in the fist place. He was pushing 50 when he threw in his job as a builder of prefabricated homes to take his place at the bar. But before he became accustomed to wearing his fine horse-hair wig, [the] poor [barrister]was struck off for some shoddy financial-legal advice to a Mrs Bach.

Not only did he lose his appeal against being struck-off, he was also ordered to pay the Bar Association’s $100,000 costs, which he couldn’t, so the association bankrupted him.”

There were many errors of fact. The conduct which had led to him being struck off was described by Justice Adams in this case as “marked by carelessness and a failure to take his obligations as a trustee seriously as well as dishonesty”, but said “the inadequacies and, indeed, misbehaviour of the plaintiff was none of it of a kind which could fairly be characterised as ‘shoddy financial legal advice’, and he would not have been struck off for the inadequacies of the advice he gave. The conclusion as to shoddiness was premised on the — to my mind — quixotic ascription of the ordinary and naturally understood meaning of “shoddy legal-financial advice” to the proposition “that the legal and financial advice given to Mrs Bach was significantly wrong in a positive sense so that she was misled or might have been misled by following it and that it was so wrong as to demonstrate moral turpitude of a substantial kind, that is to say, bad enough to warrant disbarment.”

The judge found the publication was actuated by malice, ruled against the defamation of truth, and against a Polly Peck defence which suggested that allegations in the article more defamatory than those sued on were true, and awarded damages for defamation and injurious falsehood.

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