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City Desk
10 July, 2003  
Hatred, ridicule and contempt

Impugning of lawyers. Defamation cases in which we see distressingly small awards of damages for lawyers who have been subjected to rotten remarks. One uphappy barrister had just about all his imputations tossed in the rubbish bin

IT’S pleasing to see that members of the legal caper are not backward when it comes to defending their good names in the defamation courts.

The weird thing is that the defamations in question gave rise to such measly awards of damages.

Take Jan Martin’s heroic action against Van Dieman’s Land zealot Thomas Trustrum. The defendant had published three documents which made utterly beastly remarks about Martin (right), who at the time was executive director of the Tasmanian Law Society, and now holds a similar position with the South Australian Law Society.

Trustrum had launched a campaign against Martin’s handling of complaints arising from the Taswegian solicitors’ mortgage disaster, which saw a number of mortgage practices go up in flames.

Among the rude things Trustrum published, according to a judgment of Underwood J in Hobart, were that Martin was: “the solicitor from hell Ö a liar Ö a psychopath Ö a bounty-hunter Ö a jackal Ö a sadist Ö an arrogant ice-queen Ö a whimpering jelly.” She also ordered “the summary executions of dozens of Law Society complainants, without a blink”.

As for the Tasmanian Law Society, according to Trustrum’s analysis, it was “no stranger to internal corruption”.

One would have thought Martin would have been awarded a bundle of loot, particularly as the pronouncements were distributed to the media and the defendant didn’t seem to come up with any defences.

Yet, Underwood awarded her a miserable $40,000, which included $5,000 in exemplary damages.

It is clear that these Tasmanians haven’t got a grip on what constitutes a decent award of damages for the hurt feelings of a lawyer. Nicholas Carson in NSW showed the way with verdicts of $600,000 and $1.3 million and in Victoria Stephen Stern, a former partner at Freehills, was awarded $750,000 plus $30,000 interest in an undefended action over a rude letter written to his managing partner.

THERE was another miserly instance just recently in the County Court of Victoria where two solicitors were at each other’s throats.

Robert Wood sued Sue Owens after she said hurtful things about him in front of a third solicitor, Robert McGirr.

Wood and Owens were solicitors on opposite sides of an action against a barrister for professional negligence. Wood had taken out a chamber summons seeking orders to have the proceedings dismissed or security for costs. It was served on Owens by registered mail. However, she had moved from the address to which it was sent about two months previously and did not receive the documents.

Owens successfully applied for an adjournment when the proceedings came on the basis that the papers had only just come to her attention. She told the court that the suggestion that she did receive the summons was “dishonest”.

In the foyer of the court there was a confrontation where Owens, in front of McGirr, told Wood that he was “dishonest, unethical and should not be practising law”.

Defences of justification, fair comment and qualified privilege were pleaded, all unsuccessfully, although Judge Howie did find the conversation was an occasion of qualified privilege, but in this instance it was defeated by malice:

“In my opinion the defendant’s ill will towards the plaintiff, her lack of belief in the imputations that the plaintiff was unethical and unfit to practise as a solicitor, and her recklessness, are grounds for inferring that the defendant was actuated in saying what she did to the plaintiff by an improper motive.”

However, there was no evidence that the reckless remarks adversely affected Wood’s business or his reputation. The judge went on to find that the words did not even cause Wood any significant distress.

John Riordan for Wood described the attack on his client as “a devastating matter” in which the “jewel” of the plaintiff’s reputation has been “seriously impugned”.

Howie did not quite see it that way and assessed damages at $300 for the impugned jewel and ordered costs at the lowest scale.

What with Mr Riordan and Ms Schoff to feed, one suspects this vindicated plaintiff will be quite out of pocket.

IN NSW, there were scenes of despair when Justice Levine struck out all but one of barrister Maurice Kriss’s defamatory imputations against John Fairfax Publications for disparagements published in The Sydney Morning Herald on November 2, 2000.

Levine thoughtfully appended the matter complained of to his judgment:

“Here’s a turn up for the books. Maurie the Marvellous – struck-off, erstwhile bankrupt barrister ? is set to make a comeback and we’ve got just the right client in mind for him.

Maurie’s return is a marvel, given the amount of traffic heading the other way. For example, joining the ranks of those on the verge of being struck off is QC Clarrie Stevens who, despite running a successful practice specialising in tax matters, was unable to file a return of his own for 24 years. Meanwhile, Australias most bankrupted disbarred barrister, Stephen Archer, has been bankrupted by the Tax Office for the third time.

Which brings us to Maurice Kriss, an aged pensioner whos been working as a barman and cleaner at the Portland RSL Club, near Lithgow. Maurie, who was struck off some seven years ago, recently won a Supreme Court battle against the legal Practitioners Admission Board and the Bar Association.

Not that poor Maurie ever had much experience as a barrister in the first 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 that fine horsehair wig, poor Maurie 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 Associations $100,000 costs, which he couldnt, so the association bankrupted him.

But now Mauries back. As Acting justice Cooper said, ‘There is no suggestion that his bankruptcy involved any moral turpitude’Ö”

The article ends up suggesting that Kriss should offer his services to Jodee Rich, who had advertised for a lawyer, requesting “an outstanding individual with a sense of humour under pressure”.

Clive Evatt came up with a set of imputations, including: “the plaintiff is unfit to be a barrister; the most appropriate client for the plaintiff is Jodee Rich being a person who has a reputation for sharp and dishonest business practices; the plaintiff’s readmission as a barrister came as a shock because it was undeservedÖ”

One of the imputations was not challenged, so it survived. The others will have to be repleaded. Happily, the plaintiff’s action in injurious falsehood is still on foot.