CITATION: PAVY v JOHN FAIRFAX PUBLICATIONS PTY LTD [2002] NSWCA 46 FILE NUMBER(S): CA 40765/00 HEARING DATE(S): 12 September 2001 JUDGMENT DATE:
5 March 2002PARTIES :
ERROL PAVY v JOHN FAIRFAX PUBLICATIONS PTY LTDJUDGMENT OF: Mason P; Wood CJatCL; Young CJ in Eq
LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT
FILE NUMBER(S) :SC 30342/97 LOWER COURT
JUDICIAL OFFICER :Bergin J
COUNSEL: Appellant: T Molomby
Respondent: B R McClintock SC/ K SmarkSOLICITORS: Appellant: Bertock & Associates
Respondent: FreehillsCATCHWORDS: Defamation - perverse verdict - imputation that father directed violence to his son held not to be defamatory - new trial ordered, but limited to that imputation (ND) DECISION: See pars 24 and 25
CA 40765 of 2000
SC 20242 of 1997
MASON P
WOOD CJ at CL
YOUNG CJ in EQ
Tuesday 5 March 2002
Errol PAVY v JOHN FAIRFAX PUBLICATIONS PTY LTD
Judgment
1 THE COURT: This is an appeal by leave against the entry of judgment for the defendant after the end of a trial as to imputations conducted before Bergin J and jury of four in defamation proceedings.
2 The plaintiff sued in respect of an article published by the defendant in a newspaper with a State-wide circulation on 24 May 1996. He alleged that the article was defamatory of him in that it imputed that:
(b) that he had directed physical violence towards his infant son thereby breaking six of his ribs.(a) he had shaken his infant son intending to cause him really serious bodily injury thereby breaking six of his ribs; alternatively
3 At the trial, as is usual, questions were isolated for the jury. The questions and the jury’s answers are as follows:
- Q1. Has the plaintiff established that the matter complained of conveyed to the ordinary reasonable reader the imputation, or an imputation not substantially different from either of the following;
- (a) that he had shaken his infant son intending to cause him really serious bodily injury, thereby breaking six of his ribs?
Answer “No”.
- (b) that he had directed physical violence towards his infant son thereby breaking six of his ribs?
Answer “Yes”.
Answer “No”.Q2. Has the plaintiff established that any imputation which you have found to be conveyed was defamatory of the plaintiff?
4 Following the jury’s answers, counsel for the defendant sought and obtained a verdict for the defendant with costs. There was nothing that the plaintiff’s counsel considered that he could put in opposition to that application.
5 The appellant (plaintiff) seeks to set aside the jury’s ruling that the second imputation was not defamatory and asks this Court to declare that it was defamatory. Counsel for the appellant, Mr Molomby, says that the jury’s answer that the second imputation was not defamatory was perverse.
6 Neither party has any adverse comment about her Honour’s direction to the jury. Neither party suggests that the question should not have been left to the jury nor that there was any…
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- Case
- [2002] NSWCA 46
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the jury's finding that the imputation that the plaintiff directed violence towards his son was not defamatory, was perverse. The Court was required to determine if this finding was so unreasonable that it could not stand, and if so, what consequences should follow.
The Court reasoned that the jury's verdict on this specific imputation was indeed perverse. It held that the imputation that a father directed violence towards his son was inherently defamatory, as it suggested a lack of parental care and potentially criminal conduct. The Court found that no reasonable jury, properly instructed, could have concluded otherwise. Consequently, the Court ordered a new trial, but limited the scope of that new trial to the single imputation found to be perverse, rather than ordering a complete retrial of the entire defamation claim.
Orders
Orders of the court
See pars 24 and 25
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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