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 -

DLJ:2
Ex tempore revised
Further revised 11 December 2002

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 reasons that are not patently clear to me, the Court of Appeal in para [23] ordered that there should be a new trial as to imputation (b). To that extent there is clarity but added:

“...with it being understood that all proper amendments may be made to the existing pleadings provided that the plaintiff is not entitled to have any new trial as to imputation (a)”.

7 In an amended statement of claim yet to be filed the plaintiff has hitherto given an indication of an intention to plead the following alternative imputations:

(a) That he had broken six ribs on his baby son by doing a similar sort of act to shaking him; alternatively
(b) That he had directed physical violence towards his baby son, thereby breaking six of his ribs.

8 Formally, it is the second of these proposed imputations which by notice of motion dated 6 September the defendant seeks to have struck out as ambiguous. Given the plaintiff’s position as it evolved in submissions today, mainly that the proposed imputations (a) and (b) do not differ in substance and that (a) is preferred, can the defendant’s complaint still be made good? Essentially it rests on the proposition that the intent to cause grievous bodily harm having been excluded by the jury, which the plaintiff does not dispute, no other intent is captured by the relevant imputation hence its ambiguity or lack of precision. Further it is argued that contrary to what was held in Singleton & Anor v Ffrench & 2 Ors (1986) 5 NSWLR 425 at 435: the issue of what the imputation means will inevitably arise.

9 I am not persuaded by either of these propositions. The second imputation (or the first) is one of a substance to which the remarks of the Court of Appeal cited above as to intention apply. Further no question of the imputations meaning arises by reference to its form or the words used in it. Rather reference can and no doubt will be made, not to determine the imputation’s meaning, but its availability as a matter of fact and its defamatory nature, by reference to the matter complained of itself: (Greek Herald Pty Limited v. Nikolopoulos [2002] NSWCA 41).

10 The plaintiff has, I am persuaded, done no more than provide as best he can, given the terms of the matter complained of, an available sting to the extent that the matter complained of permits: (Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137E per Gleeson CJ). That sting, as the Court of Appeal recognised, does contain an element as to intention (see paragraph 10 from its judgment cited above).

11 The plaintiff should confirm his election within seven days, within which time the amended statement of claim is to be filed. I dismiss the defendant’s notice of motion with costs.

12 The plaintiff applies pursuant to s 143(4) of District Court Act 1973 to have this action transferred to that court; the defendant is not permitted to oppose. However I may decline the application for any reason appearing sufficient. The following matters constitute sufficient reason: the action was commenced in this court; twice the parties have availed themselves of this court’s Defamation List practice to have determined, inter alia, other matters, being my earlier judgment and the judgment of Simpson J [2000] NSWSC 328); a s 7A trial by jury has been conducted here; an appeal from an outcome of that jury was heard in the Court of Appeal pursuant to the grant of leave; a new trial was ordered by it and has been fixed for hearing in this court on 11 December. A trial in the District Court will bring about a complete distortion, in my respectful view, of the mechanisms of justice hitherto enjoyed by the parties. (See Moselmane v Jones, unreported JC Gibson DCJ, DCNSW 14 August 2002).

13 I decline the plaintiff’s application and make no order as to costs in respect to it.

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Last Modified: 12/13/2002