R v Latumetan and Murwanto

CITATION:	HARVEY v JOHN FAIRFAX PUBLICATIONS PTY LIMITED [2003] NSWCA 70
HEARING DATE(S):	7 February 2003
JUDGMENT DATE:	9 April 2003
JUDGMENT OF:	Mason P at 1; Sheller JA at 35; Ipp JA at 36
DECISION:	Appeal allowed in part. For further orders see par 34.
CATCHWORDS:	Defamation - jury rejects all pleaded imputations - appeal - whether findings perverse - extent of new trial (ND)
PARTIES :	John HARVEY v JOHN FAIRFAX PUBLICATIONS PTY LIMITED
FILE NUMBER(S):	CA 40721/01
COUNSEL:	Appellant: B R McClintock SC Respondent: T D Blackburn/ A T S Dawson
SOLICITORS:	Appellant: Carneys Lawyers Respondent: Freehills

LOWER COURTJURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 0002/98
LOWER COURT JUDICIAL OFFICER :	Kirby J

CA 40721/2001
CLD 20002/98

MASON P
SHELLER JA
IPP JA

Wednesday 9 April 2003

HARVEY v JOHN FAIRFAX PUBLICATIONS PTY LTD

JUDGMENT

1 MASON P: The Court is called upon to determine if a defamation verdict should be set aside because of unreasonable findings by a jury.

2 A lengthy article highly critical of the appellant was published in the Sydney Morning Herald on 20 September 1997. The heading, placed adjacent to a picture of Elle Macpherson, was THE MAN WHO SANK ELLE. The extended byline read:

What do a beautiful supermodel, three premiers, 30 racing car drivers and millions of taxpayers have in common? They all wished they had never heard of a man named John Harvey. BEN HILLS explains.

3 The plaintiff pleaded five defamatory imputations. Bell J upheld three of them and struck out two, with leave to replead (Harvey v John Fairfax Publications Pty Ltd [2000] NSW SC 337). Those two imputations were pleaded afresh and all five imputations went to the jury at a trial under s7A of the Defamation Act 1974 presided over by Kirby J.

4 The questions put to the jury and answered in the negative were:

1. Has the Plaintiff (John Harvey) established that the matter complained of (that is, the 20 September 1997 Sydney Morning Herald article) conveyed the following imputations to the ordinary reasonable reader (or any imputations which are not substantially different from them):
(a) The Plaintiff, in his operation of a farm, endangered public health.
(b) The Plaintiff had so seriously mismanaged two companies of which he was a director as to make them insolvent.
(c) The Plaintiff had behaved in so bad a manner as an employee of the NSW Premier, Nick Greiner, as to warrant his peremptory dismissal by Mr Greiner.
(d) the Plaintiff had defrauded the company of which he was a director of $170,000.
(e) The Plaintiff dishonestly refused to pay his just debts.

5 The jury did not answer the ensuing questions about the defamatory nature of the imputations.

6 A verdict and judgment in favour of the defendant with costs was then entered by Kirby J.

7 It is not suggested that the jury were misdirected. And there is no issue as to the legal standard to be applied…