Lawyer Chris Murphy and Daily Telegraph columnist Annette Sharp (Images: AAP/David Moir; Daily Telegraph)

The media continues its long losing streak in defamation litigation, especially in the Federal Court where cases are heard by judges without a jury. Mind you, while I maintain the view that our defamation law is ridiculously plaintiff-friendly and is preventing the media from playing its proper role in society, the industry could do itself a favour by publishing less utter shit.

Which is exactly what the Murdoch rag The Daily Telegraph did via its gossip columnist Annette Sharp last year, giving the celebrity criminal lawyer Chris Murphy an easy win with a bafflingly high damages payout.

Sharp reported (breathlessly, as the gossip genre requires) that Murphy and his wife had split up, with accompanying details about which the judge said “it is difficult to see [that they] had any real public interest … it was an unpleasant and invasive article”.

The sting, however, was this gratuitous line run online above the most unattractive photo of Murphy they could find: “Murphy, who will be 72 this month, continues to battle the ravages of age and with it the associated deafness that has kept him from representing his famous clients in court during the past year.”

Murphy sued, alleging he’d been defamed in various ways including by the Telegraph suggesting that he is unfit to practise law any more because he’s so old and deaf.

The judge didn’t agree with that, but he did find that a single defamatory imputation had been conveyed to ordinary readers: that Murphy was, by reason of the ravages of age and deafness, incapable of appearing in court for his clients.

The Telegraph argued that that imputation didn’t arise, which was doomed to fail because that’s exactly what its article had said. Its backup defence was that the imputation was true. That failed, too.

The judge wasn’t a huge fan of Murphy as a witness — “often non-responsive, long-winded, argumentative” — but he did think he had “a certain rakish charm”. Anyway, he believed Murphy when he said that the reason he rarely appears in court these days isn’t because he’s old and deaf (it was common ground that he has hearing loss and uses hearing aids and other assistant technology), but as a personal choice to do less court work and take on a “rainmaker” role for his firm instead. I sympathise with that.

Given that, the Telegraph was screwed. It had published an unsubstantiated claim that Murphy is done and dusted as an effective advocate for his clients, shattering to his professional reputation. Murphy said he was personally traumatised, the judge finding his evidence on this “a tad exaggerated” but accepting that he’d been upset by the article.

In defamation general damages (for lost reputation and hurt feelings) are capped by statute at $421,000. Actual economic loss and aggravated damages can be awarded on top, but neither was found to be appropriate in this case.

The judge awarded Murphy $110,000, putting the harm just above 25% of the worst case. What the Telegraph had done wasn’t dreadfully damaging, the judge thought, but “far from trivial”.

On its face the payout might encourage plenty more prospective plaintiffs to have a crack; $110,000 isn’t a bad payday for a single defamatory sentence in a gossip column. However, costs have yet to be determined; Murphy won on only one of five defamatory imputations he pleaded and we don’t know whether any settlement offers were made and rejected during the litigation. 

These factors will play into what the judge does about each party’s costs. Unless Murphy gets the bulk of his legal costs paid by the Telegraph, he may even end up out of pocket.

Either way, the Tele is up for another huge bill, the price of its insistence on running tripe in its fish wrappers.