Pavy v John Fairfax Publications Pty Ltd

CITATION:	PAVY v JOHN FAIRFAX PUBLICATIONS PTY LTD [2004] NSWCA 177
HEARING DATE(S):	17 May 2004
JUDGMENT DATE:	11 June 2004
JUDGMENT OF:	Sheller JA at 1; McClellan AJA at 45; Campbell AJA at 46
DECISION:	Appeal dismissed with costs,.
CATCHWORDS:	DEFAMATION - challenge to jury finding that imputation was not defamatory - whether finding one no reasonable jury could come to - whether jury should have been discharged - discretion of trial Judge - whether directions insufficient when no objection taken to directions at trial
LEGISLATION CITED:	Defamation Act 1974
CASES CITED:	A v Ipec Australia Ltd (1973) R 39 Astaire v Campling [1966] 1 WLR 34 Bass v McDonald & TCN Channel Nine Pty Ltd (No 6) [2001] NSWSC 988 Bass v TCN v Channel Nine [2003] NSWCA 118 Beran v John Fairfax Publications Pty Ltd (2004) NSWCA 107 Coleman v Incorporated Newsagencies Company Pty Ltd (unreported) Supreme Court, 16 September 1975 Croll v McRae (1930) 30 SR (NSW) 137 Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 Wellington v Lake George Mines Pty Ltd (1962) SR (NSW) 326
PARTIES :	Errol Pavy - Appellant John Fairfax Publications Pty Ltd - Respondent
FILE NUMBER(S):	CA 40502/03
COUNSEL:	T Molomby SC/R K M Rasmussen - Appellant B R McClintock SC/K P Smark - Respondent
SOLICITORS:	Bertock & Associates - Appellant Freehills - Respondent

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	20242/97
LOWER COURT JUDICIAL OFFICER :	Bell J

CA 40502/03
SC 20242/97

SHELLER JA
McCLELLAN AJA
CAMPBELL AJA

PAVY v JOHN FAIRFAX PUBLICATIONS PTY LTD

On 24 May 1996 the respondent published an article about the appellant in the Sydney Morning Herald entitled “Father freed after child’s death”. Shortly before this publication, the appellant’s appeal against a conviction for murder had been upheld in the Court of Criminal Appeal and his conviction had been quashed. As a result of this article, the appellant brought proceedings against the respondent to recover damages for defamation. Ultimately, in the defamation proceedings the appellant relied upon one imputation in an amended statement of claim, namely the imputation “that he had broken six ribs of his baby son, by doing a similar sort of act to shaking him.”

The jury, at a trial in accordance with the requirements of s7A(3) of the Defamation Act 1974, found that this imputation, or a meaning not substantially different from it, was conveyed to the ordinary reasonable reader but held that the imputation was not defamatory of the plaintiff. Notably, at the close of counsel for the defendant’s address in this trial, counsel for the plaintiff applied to have the jury discharged on grounds including references by the defence to the proceedings being a “try-on” and references to what was said to be the jury’s belief. The trial Judge declined to discharge the jury.

On appeal, the appellant challenged the finding of the…