Pavy v John Fairfax Publications Pty Ltd

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 2002
PARTIES :	ERROL PAVY v JOHN FAIRFAX PUBLICATIONS PTY LTD
JUDGMENT 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 Smark
SOLICITORS:	Appellant: Bertock & Associates Respondent: Freehills
CATCHWORDS:	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:

(a) he 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.

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”.

Q2. Has the plaintiff established that any imputation which you have found to be conveyed was defamatory of the plaintiff?

Answer “No”.

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…