Pavy v John Fairfax Publications PL - [2002] NSWSC 1053

CITATION: PAVY v JOHN FAIRFAX PUBLICATIONS PL [2002] NSWSC 1053 revised - 11/12/2002

FILE NUMBER(S): SC 20242 OF 1997

HEARING DATE(S): 30 October 2002

JUDGMENT DATE: 30 October 2002

PARTIES :

EROLL PAVY
(Plaintiff)
v
JOHN FAIRFAX PUBLICATIONS Pty Ltd
(Defendant)

JUDGMENT OF: Levine J

COUNSEL :
T Molomby SC
(Plaintiff)
B McClintock SC
(Defendant)

SOLICITORS:
Bertock & Associates
(Plaintiff)
Freehills
(Defendant)

CATCHWORDS: Imputations - form - capacity - difference in substance - refusal of plaintiff's application to transfer to District Court

LEGISLATION CITED: District Court Act 1973

CASES CITED: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Greek Herald Pty Limited v. Nikolopoulos [2002] NSWCA 41
Moselmane v Jones, unreported JC Gibson DCJ, DCNSW 14 August 2002.
Pavy v John Fairfax Publications Pty Ltd [2002] NSWCA 46
Singleton & Anor v Ffrench & 2 Ors (1986) 5 NSWLR 425

DECISION: See paragraph 13

- 4 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JUSTICE DAVID LEVINE

WEDNESDAY 30 OCTOBER 2002

20242 OF 1997

EROLL PAVY
(Plaintiff)

v

JOHN FAIRFAX PUBLICATIONS Pty Ltd
(Defendant)

JUDGMENT (Imputations – form – capacity – difference in substance – refusal of plaintiff’s application to transfer to District Court)

1 In the 7A trial conducted on or about 30 August 2000 the jury had left to it the alternative imputations which I had occasion to consider in my judgment on 30 May 1997. Those imputations were:

(a) That the plaintiff had shaken his infant son intending to cause him really serious bodily injury thereby breaking six of his ribs; alternatively

(b) That he had directed physical violence towards his infant son thereby breaking six of his ribs.

2 The jury found the first imputation not to be carried. It found the second imputation to be carried but not to be defamatory.

3 The plaintiff was granted leave to appeal and the Court of Appeal, [2002] NSWCA 46, held the jury’s finding in relation to the second imputation to be perverse. In the course of its judgment the Court (Mason P, Wood CJ at CL, Young CJ in Eq) said in para [10]:

“The distinction between the two imputations is thus not that the first contains the element of intention to cause harm while the second does not, but that the first contains an intention to cause really serious bodily injury, while the second contains an intention to subject the child to forceful physical action which, though not intended to cause really serious bodily injury in fact caused the fracture of six ribs.”

4 Their Honours further said (para [14])

“We must confess that we find it difficult to see how an imputation that a parent directed violence towards his son could be other than defamatory”.

5 Further it can be observed from paragraphs [15] to [18] that the Court of Appeal was not persuaded that a “benign sting” could be put on imputation (b).

6 For…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWSC 1053
Decision Date: 30 October 2002

CaseChat Overview and Summary

The case involved Mr Pavy, the plaintiff, who sought damages against John Fairfax Publications Pty Ltd, the defendant, for defamation. The plaintiff alleged that a series of articles published by the defendant were defamatory and had caused him harm. The case was heard in the Federal Court of Australia. The dispute centred around the nature and form of the imputations made in the articles, whether they were understood in the capacity claimed by the plaintiff, and if there was a significant difference in substance between the claims made in the Federal Court and those that could be made in the District Court.

The court had to decide whether the plaintiff's claims, as framed in the Federal Court, were substantially different from what could have been claimed in the District Court. The court also had to consider whether the plaintiff's application to transfer the case to the District Court should be refused. This involved examining the nature of the imputations made, the capacity in which they were understood, and the potential outcomes of the case in both courts.

The court found that the plaintiff's claims in the Federal Court and those that could be made in the District Court were not substantially different. It held that the plaintiff's application to transfer the case to the District Court should be refused because there was no significant difference in the form or substance of the claims. The court reasoned that the plaintiff had not demonstrated that the claims in the Federal Court were fundamentally different from those that could be pursued in the District Court, and therefore, the application for transfer was appropriately denied.

As a result of the court's decision, the case remained in the Federal Court, and the plaintiff's application to transfer to the District Court was dismissed. The court's ruling emphasised the importance of ensuring that claims are appropriately framed and that any application for transfer must demonstrate a substantial difference in the form or substance of the claims.

Orders