In judgement, Justice Lee rejected the submissions by Nationwide News and The Daily Telegraph journalist Annette Sharp that Mr Murphy was unable to appear in court because of his hearing aids, and instead accepted Mr Murphy’s evidence that he had not appeared as a matter of “choice” rather than “inability”.

“As anyone experienced in litigation would be aware, many barristers and judges, including a recent highly distinguished judge of the Supreme Court of NSW, have had significant hearing difficulties. Other participants in court proceedings just need to adjust,” Justice Lee said, adding that with the use of hearing aids during the defamation proceedings, Mr Murphy had no difficulty in hearing what was going on. 

The article in question, published in The Daily Telegraph in October 2020 by Ms Sharp, read that Mr Murphy had “continued to battle with the ravages of age and with it the associated deafness that has kept him from representing his clients in court during the past year”. 

Over the course of the proceedings, Mr Murphy’s counsel Sue Chrysanthou SC said the column had damaged his reputation because no client or colleague would want a lawyer who was “past it, decrepit, or over the hill”. The Telegraph and Ms Sharp denied that the article conveyed he was unable to represent clients in court. 

In delivering final submissions, Ms Chrysanthou said the article inferred he would “need some sort of walking frame to get up the steps of the Downing Centre [Local Court]” and that readers of the article – who have never met Mr Murphy and as such have never worked with him – would not be able to know any different. 

“It doesn’t say that he can barely get to court, [but adds] a reminder to readers that he does sit in the office… and he is an overlord. It doesn’t say that. All it says is that he can’t get to court,” Ms Chrysanthou explained to Justice Lee. 

“That imputes general unfitness as a criminal lawyer because no client who has ever met Mr Murphy before and has never used Mr Murphy before would form the view that he is a competent criminal lawyer after reading this article.”

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She went on to claim that the article had portrayed Mr Murphy as a “decrepit figurehead” who was on a “sliding slope” thanks to his age and his hearing impairment. Ms Chrysanthou also added that Mr Murphy was most hurt by the suggestion that he is an incompetent or incapable criminal lawyer. 

Part of the final day of the defamation hearing was spent debating the specifics of Mr Murphy’s role as an “ordinary reasonable reader” would understand it, particularly as Mr Murphy practises as a solicitor but has been known to be an advocate in the courtroom. It was agreed earlier in the week that 90 per cent of his workload happens outside of it. 

The Daily Telegraph’s barrister Dauid Sibtain said that outside of picturing a barrister as someone who “stands up in court in funny regalia”, the ordinary reasonable reader would be more inclined to understand that a solicitor who deals in criminal matters takes care of the client and a range of other functions alongside “possibly some court work but wouldn’t expect they would be the one running the trial”. 

In response, Ms Chrysanthou said it would be “quite absurd” that the ordinary reasonable reader would have “any clue about how barristers are instructed” and would have no idea that “we don’t work in firms”. She also pointed to Mr Murphy’s designation in the article as a lawyer, rather than as a solicitor or barrister.