Pavy v John Fairfax Publications Pty Ltd - [2000] NSWSC 328

CITATION: Pavy v John Fairfax Publications Pty Ltd [2000] NSWSC 328

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20242/97

HEARING DATE(S): 9 July 1999

JUDGMENT DATE: 18 April 2000

PARTIES :

Errol PAVY v John FAIRFAX PUBLICATIONS PTY LTD

JUDGMENT OF: Simpson J at 1

COUNSEL : Mr T Molomby (Plaintiff)
Mr K Smark (Defendant)

SOLICITORS: Bertock & Associates (Plaintiff)
Richard Coleman (Defendant)

LEGISLATION CITED: Defamation Act 1975

CASES CITED: Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293

DECISION: Paragraph 4 of the defence will be struck out. The defendant is to pay the plaintiff's costs of the application.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Defamation List
SIMPSON J
Tuesday 18 April 2000
20242/97

Errol PAVY v JOHN FAIRFAX PUBLICATIONS PTY LTD

Judgment

HER HONOUR :

1    The question at issue in these interlocutory proceedings centres on an imputation pleaded by the defendant in support of defence of contextual truth. The plaintiff contends that the imputation does not meet the requisite tests applicable to such a defence and that that part of the defence in which contextual truth is pleaded should be struck out.
2    It is necessary to set out some history. In 1993 the plaintiff was charged with the murder of his three month old son. The prosecution allegation was that, attempting to stop the child crying, the plaintiff shook him with sufficient force to cause his death. In about December 1995 the plaintiff was convicted of murder following trial by jury. On 23 May 1996 the Court of Criminal Appeal quashed the conviction and entered a verdict of acquittal. The following day the defendant published in the Sydney Morning Herald a news report of the judgment of the Court of Criminal Appeal, and the enthusiastic and positive response of the plaintiff’s wife, family and supporters. It is this news item that is the foundation for the plaintiff’s claim in defamation.
3    The report purported to record remarks made by the sentencing judge, to the effect that, on a previous occasion, the plaintiff had (although unaware of it) broken six of the child’s ribs in an act similar to the act alleged to have caused the child’s death.
4    Two imputations are pleaded, in the alternative. They are:

“(a) that [the plaintiff] had shaken his infant son, intending to cause him really serious bodily injury, thereby breaking six of his ribs”; and

“(b) [the plaintiff] had directed physical violence towards his infant son, thereby breaking six of his ribs.”

5    It will be seen that the imputations pleaded are directed to the allegation of a prior injury to the child on an occasion other than the occasion of the child’s death.
6    The defendant has filed a defence. It denies that the publication bears or is capable of bearing the imputations pleaded, or that it is or is capable of being defamatory. It relies upon the defence of qualified privilege provided by s 22 of the Defamation Act 1975 (“the Act”). The defence…

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: [2000] NSWSC 328
Decision Date: 18 April 2000

CaseChat Overview and Summary

The case of Pavy v John Fairfax Publications Pty Ltd involved a defamation claim by Errol Pavy against John Fairfax Publications Pty Ltd. The plaintiff alleged defamation arising from a news report published by the defendant, which included an imputation that he had previously injured his infant son. The Supreme Court of New South Wales was tasked with deciding whether the imputation met the requisite standards for the defence of contextual truth under the Defamation Act 1975. The central legal issue was whether the contextual imputation pleaded by the defendant could dilute the defamatory nature of the imputations pleaded by the plaintiff, thereby preventing the latter from further injuring the plaintiff's reputation.

Simpson J found that the contextual imputation was entirely true, stating that the plaintiff had been convicted by a jury of the brutal murder of his infant son, although he was later acquitted on appeal. However, the court concluded that the defendant's attempt to rely on this imputation to dilute the defamatory effect of the plaintiff's pleaded imputations was illegitimate. Simpson J reasoned that the defendant's strategy exploited potential prejudice and illegitimate reasoning processes by some readers, who might continue to believe that the plaintiff was guilty despite his acquittal. This approach was akin to the reasoning in Mirror Newspapers Ltd v Harrison, where the High Court held that a report of an arrest and charge does not imply guilt. The court found that the contextual imputation was not capable of outweighing the injury caused by the imputations pleaded by the plaintiff, and therefore the defence of contextual truth would fail.

In conclusion, the court struck out paragraph 4 of the defence and ordered the defendant to pay the plaintiff's costs of the application. This decision highlights the importance of ensuring that the defamatory quality of published material is determined by what is conveyed to the ordinary reasonable reader, rather than by the reader's own beliefs or prejudices.

Orders