Saffron v John Fairfax Publications Pty Ltd - [2004] NSWCA 254

NEW SOUTH WALES COURT OF APPEAL

CITATION: SAFFRON v JOHN FAIRFAX PUBLICATIONS PTY LTD [2004] NSWCA 254 revised - 30/07/2004

FILE NUMBER(S):
40984/03

HEARING DATE(S): 20 July 2004

JUDGMENT DATE: 20/07/2004

PARTIES:
Abe Saffron - Claimant
John Fairfax Publications Pty Ltd - Opponent

JUDGMENT OF: Spigelman CJ Sheller JA Hodgson JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 20556/02

LOWER COURT JUDICIAL OFFICER: Levine J

COUNSEL:
C A Evatt - Claimant
T D Blackburn SC/R P L Lancaster - Opponent

SOLICITORS:
Brock Partners - Claimant
Mallesons Stephen Jaques - Opponent

CATCHWORDS:
DEFAMATION - individual described as having unsavoury reputation - whether finding by jury that not defamatory was peverse - matter of 'impression' - reluctance for appellate intervention - jury more able to determine whether imputation conveyed was defamatory

LEGISLATION CITED:
Defamation Act 1974

DECISION:
Application dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40984/03
SC 20556/02
SPIGELMAN CJ
SHELLER JA
HODGSON JA
Tuesday, 20 July 2004

SAFFRON v JOHN FAIRFAX PUBLICATIONS PTY LTD

Judgment

SPIGELMAN CJ: I will ask Mr Justice Sheller to deliver the first judgment.
SHELLER JA: The plaintiff and the claimant, Abe Saffron, applies for leave to appeal from a jury decision in a trial which took place pursuant to s 7A(3) of the Defamation Act 1974 (the Act) on 24 October 2003. The presiding Judge, Levine J, entered a verdict for the defendant and opponent, John Fairfax Publications Pty Ltd.
In the proceedings the plaintiff sought damages for defamation in an article published in the Sydney Morning Herald on 19 October 2002 under a photograph of the plaintiff with beside it the words:
“Abe Saffron yesterday, at 83, and 1951 at a nightclub he owned. Photo: Peter Rae”
At the bottom of the left hand column was a photograph of the plaintiff at the nightclub.
In the copy of the article annexed to the plaintiff’s third further amended statement of claim the sections are numbered. The photograph of the plaintiff at the top is 12 and the photograph at the nightclub is 13. The short script I have quoted is 11. The heading of the article (1) was “Speaking up for Mr Sin”. The body of the article was as follows.
“2The wages of sin must pay off. Looking surprisingly youthful, the legendary Mr Sin, aka Abe Saffron, now aged 83, was in court this week trying to reverse an earlier decision by the Licensing Court not to give him a liquor licence.
3Just because he had an unsavoury reputation – all of it undeserved and completely the fault of the media – was no reason to prevent him from wholesaling grog from his Crown Street outlet in Surry Hills.
4Maybe this is why Abe chose defamation specialist Bruce McClintock, SC, to represent him in this matter. While the chain-smoking barrister has no claim to fame in liquor litigation, he does know his way around reputations alleged to have…

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.

Keep reading for free

Create a free CaseChat account to read Saffron v John Fairfax Publications Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] NSWCA 254
Decision Date: 20 July 2004

CaseChat Overview and Summary

The applicant, Saffron, brought a defamation action against the respondent, John Fairfax Publications Pty Ltd, concerning an article published by the respondent. A jury found that the imputation conveyed by the article was not defamatory. Saffron appealed this finding to the Full Court of the Supreme Court of New South Wales.

The central legal issue before the Full Court was whether the jury's finding that the imputation conveyed by the article was not defamatory was perverse. This required the Court to consider the standard of appellate intervention in jury findings in defamation cases, particularly where the question of whether an imputation is defamatory is a matter of "impression."

The Full Court held that a jury is generally in a better position than an appellate court to determine the "impression" conveyed by a publication and whether that impression is defamatory. The Court reiterated the reluctance of appellate courts to interfere with jury findings unless there is a clear and compelling reason to do so. Given the nature of the imputation and the jury's assessment of its impact, the Court found no basis to conclude that the jury's verdict was perverse.

Consequently, the application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SPIGELMAN CJ (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.