Saffron v John Fairfax Publications Pty Ltd
[2003] NSWSC 320
•17 April 2003
CITATION: SAFFRON v JOHN FAIRFAX PUBLICATIONS PTY LTD [2003] NSWSC 320 HEARING DATE(S): 14 April 2003 JUDGMENT DATE:
17 April 2003JUDGMENT OF: Levine J DECISION: 1. Imputations 3(a), (h) and (k) are struck out.; 2. Imputations 3(b), (d), (f), (g), (i), (j) and (m) and 3A(a) are incapable as a matter of law of being carried by the matter complained of.; 3. The plaintiff has leave to file an amended statement of claim within 14 days of today.; 4. The plaintiff is to pay the defendant's costs.; 5. The action is listed in the Registrar's Defamation Directions List on 2 May 2003. CATCHWORDS: Imputations - capacity -form CASES CITED: Fullam v Newcastle Chronicle [1977] 1 WLR 651
Grappelli v Derek Block (Holdings) [1981] 1 WLR 822
Grubb v Bristol United Press Ltd (1963) 1 QB 309
Jackson v John Fairfax Publications & Sons Ltd [1981] 1 NSWLR 36PARTIES :
ABE SAFFRON
(Plaintiff)v
JOHN FAIRFAX PUBLICATIONS PTY LTD
(Defendant)
FILE NUMBER(S): SC 20556 OF 2002 COUNSEL: C Evatt
T Blackburn
(Plaintiff)
(Defendant)SOLICITORS: Brock Partners
Mallesons Stephen Jaques
(Plaintiff)
(Defendant)
[2003] NSWSC 320
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LISTJUSTICE DAVID LEVINE
20556 OF 2002THURSDAY 17 APRIL 2003
JUDGMENT (Imputations – capacity –form)ABE SAFFRON
(Plaintiff)John Fairfax Publications Pty Ltdv
(Defendant)
1 The plaintiff has instituted proceedings claiming damages for defamation arising from the publication of an article in “The Sydney Morning Herald” of 19 -20 October 2002.
2 The text of the matter complained of is appendix A hereto.
3 The plaintiff contends that the matter complained of carries the following defamatory imputations of him:
- 3(a) The Plaintiff is Mr Sin (paragraphs 1, 2, 3, 8 and 9).
- (b) The Plaintiff’s income comes from crime (paragraph 2)
- (c) The Plaintiff had an unsavoury reputation (paragraphs 3, 5, 6, 7, 8 and 9).
- (d) The Plaintiff is a prominent criminal (paragraphs 1, 2, 3, 8 and 9)
- (e) The Plaintiff deliberately misled the licensing Court (paragraph 7).
- (f) The Plaintiff is engaged in vice and immoral practices (paragraphs 1, 2, 3, 8, 9 and 13).
- (g) The Plaintiff is an illicit vice operator (paragraphs 1, 2, 3, 8 and 9).
- (h) The Plaintiff is known as Mr Sin because of his bad behaviour over many years (paragraphs1, 2, 3, 8 and 9).
- (i) The Plaintiff receives wages from sin (paragraphs 1 and 2).
- (j) The Plaintiff receives wages from vice (paragraphs 1 and 2)
- (k) The Plaintiff is a criminal (paragraphs 1, 2, 3, 8 and 9).
- (l) The Plaintiff concealed convictions under NSW Liquor Law from the West Australian authorities (paragraphs 6 and 7).
- (m) The Plaintiff’s business operations are connected with vice and immoral practices (paragraphs 1, 2, 3, 8 and 9).
4 Imputations (c) and (l) were not challenged by the defendant. The plaintiff abandoned imputation (e).
5 The plaintiff also relies upon the imputation that “The Plaintiff is Mr Sin” as a true innuendo. The following are particularised as “extrinsic facts”:
- “An unnamed person was widely described in the media as being Mr Sin and was referred to as being the head of or a controller of illicit vice and illegal gaming.
- These facts were well known to the general public and to persons who read the material complained of”.
6 Pursuant to SCR pt 31 r 2 by consent the legal issue of capacity has been argued. Objections to form also were addressed.
7 With respect to imputation (a) – “The Plaintiff is Mr Sin” - the defendant argues that the imputation is defective in form by reason of its failing entirely to indicate an act or condition in the plaintiff. It one adopts one of the available tests, namely that set out in Jackson v John Fairfax Publications & Sons Ltd [1981] 1 NSWLR 36 at 41, what would the defendant have to prove by way of justification? Is the imputation concerned with “moral failings” or does it connote “criminality”? A further question is does the imputation differ in substance from imputation (f) – “The Plaintiff is engaged in vice and immoral practices”?
8 The plaintiff merely “presses” this imputation. It is defective because any meaning of substance is quite illusory. It will be struck out.
9 As to imputation (b) - “The Plaintiff’s income comes from crime” - the only criminality referred to in connection with the plaintiff is in paragraph 8 of the matter complained of which deals with his having served time in jail for tax offences, in relation to which he has always maintained his innocence. Further, in paragraph 10, there are historical references to “convictions under NSW Liquor Law” but that reference is not to the same kind of behaviour as tax offences and did not involve imprisonment. The plaintiff says that the material arises from paragraph 2 of the article – “The wages of sin must pay off”. This does not assist in my view: the capacity of the matter complained of to give rise to an imputation cannot usefully be determined by reference to a phrase of elusive meaning. I hold that imputation (b) is incapable of arising.
10 As to imputation (d), “The Plaintiff is a prominent criminal”, it is said to be bad in form by reason of a question as to whether the “prominence” attaches to his being a criminal or to the criminality. It would be ingenuous to argue that the concept of being a prominent criminal has nothing to do with whatever “Mr Sin” means. That, however, does not solve the difficulty for the plaintiff. Criminality is referred to in the matter complained of by reference to the tax offences and that is as far as goes (absent a clear meaning for “Mr Sin”). There is no suggestion that the plaintiff engages, still, in any criminal activity as that expression could reasonably be understood by the ordinary reader. The references to “Mr Sin” are historical as was argued by Mr Blackburn. Mr Saffron is identified as now being aged 83 and is referred to as “the legendary Mr Sin”. I am of the opinion that the matter complained of is incapable of carrying imputation (d) and in any event I would otherwise hold that it should be struck out by reason of defect in form.
11 As to imputation (f), “The Plaintiff is engaged in vice and immoral practices”, this is defective in form because really one cannot understand what is to be comprehended by the practices and their characterisation. It is also, and more pertinently, incapable of arising by reason of it being framed in the present tense. It is also dependent upon whatever “Mr Sin” might mean, although it might provide some clue as to what in fact “Mr Sin” could be understood as meaning. It does not differ in substance in my view from imputation (m). Imputation (m), “The Plaintiff’s business operations are connected with vice and immoral practices” suffers all the defects of imputation (f).
12 I hold that imputations (f) and (m) are incapable of being carried by the matter complained of; otherwise they would be struck out as being bad in form or not differing in substance.
13 As to imputation (g), “The Plaintiff is an illicit vice operator”: it is argued, and I agree, that it is incapable of arising from the matter complained of by reason of the considerations already referred to and is in fact defective in form, suffering the same problems as imputation (a), (f) and (m). One could ask, to what degree of unlawfulness (if any) does the word “illicit” refer? I hold that imputation (g) is incapable of being carried by the matter complained of; I would otherwise have struck it out as being bad in form.
14 With respect to imputation (h), “The Plaintiff is known as Mr Sin because of his bad behaviour over many years”, one might ask what really is the difference between that imputation and the uncontested imputation (c), “The Plaintiff had an unsavoury reputation”. In any event, imputation (h) suffers the defect arising from the use of the term “Mr Sin”. This imputation fails at the threshold by reason of form and is therefore struck out.
15 The source for imputation (i), “The Plaintiff receives wages from sin” is clearly the opening paragraph of the matter complained of. The imputation connotes the present receipt of wages from sin but suffers the defect that the defamatory charge against the plaintiff is vague. I am of the opinion that the imputation is incapable of being conveyed; it would otherwise be struck out as defective in form.
16 The same considerations really apply to imputation (j), “The Plaintiff receives wages from vice”. Depending on meaning, “sin” and “vice” could mean the same or connote, equally, a wide range of unidentifiable conduct. In any event it does not, on its face, differ in substance from imputation (g). Whilst it could be struck out as being flawed in form and not differing in substance from (g) there is nothing in the matter complained of (the more so given the problems with “Mr Sin”) that founds the notion of “vice” as it could reasonably be understood.
17 It is important to observe that the matter complained of, whilst referring to “Mr Sin” and indeed the “legendary Mr Sin”, only refers to tax offences and convictions under the NSW Liquor Law. A specific statement about the plaintiff is attributed to Mr Lynch, namely “that Saffron’s behaviour had been consistent over many years (i.e. consistently bad) and there was no evidence he had changed his ways”. Even that, by itself, within context, is of highly doubtful meaning apart from the literal terms used, especially “bad behaviour”.
18 Accordingly I hold that imputation (j) is incapable of being carried by the matter complained of.
19 I strike out imputation (k), “The Plaintiff is a criminal”. It cannot differ in substance from imputation (d) which I have held, in any event, to be incapable of arising.
20 The defendant also objects to the pleading of the true innuendo and the particulars of extrinsic facts. The true innuendo is “The Plaintiff is Mr Sin” which has the “meaningless” problems attached to it as a true innuendo as it does as a natural and ordinary meaning. Approaching the issue, as it were, in reverse, assuming that there had been proper particularisation of the extrinsic facts which have to be established (see Grubb v Bristol United Press Ltd (1963) 1 QB 309 at 326-7 per Holroyd Pearce LJ and at 331 per Upjohn LJ; see also Fullam v Newcastle Chronicle [1977] 1 WLR 651; Grappelli v Derek Block (Holdings) [1981] 1 WLR 822) the plaintiff is still confronted with the problem as to specificity.
21 Mr Evatt was good enough to provide me with a copy of the statement of claim issued in proceedings number 4848 of 1975 between Abraham Gilbert Saffron v David Syme & Co Ltd, otherwise unreported (27 March 1978). That action was settled. I was also provided with a copy of the transcript of proceedings before Maxwell J on the date referred to in which the plaintiff gave evidence denying the charges made in the relevant article. The plaintiff was represented by Mr McHugh QC and Mr Christie (as their Honours then were) and the defendant by Mr Hunt QC (as his Excellency then was) and Mr Stitt: an impressive array of talent in this field of the law.
22 Whilst the imputations in the David Syme matter would not escape scrutiny by defence counsel and thus the Court (I see no reason to set them out), it was the particulars under SCR Pt 67 r 12(c) to which my attention was directed. In that action the plaintiff asserted that the matter complained of meant that he “was the main organiser of prostitution and vice rackets in Sydney” by way of true innuendo and the particulars provided were:
- “Between the years 1970 to 1974 the newspapers known as “Daily Mirror”; “The Sun”, the “Sydney Morning Herald”, “Daily Telegraph” and “Sunday Telegraph” referred to in the preceding paragraph frequently alleged that there is a person known by them as “Mr Sin” who was the main organiser of prostitution and vice rackets in Sydney”.
Mr Evatt informed me that there was no record of any challenge made either to the imputations or the pleading of the true innuendo. Saffron v David Syme & Co Ltd (or the material that I have in relation to it) is of course of historical interest. It must be viewed however in the light of the evolution of the technicalities exposed in the canon of judicial pronouncements upon the Defamation Act 1974. It is thus of no assistance.
23 I hold that the true innuendo as presently pleaded and particularised is incapable of being carried by the matter complained of.
24 The orders are:
1. Imputations 3(a), (h) and (k) are struck out.
2. Imputations 3(b), (d), (f), (g), (i), (j) and (m) and 3A(a) are incapable as a matter of law of being carried by the matter complained of.
3. The plaintiff has leave to file an amended statement of claim within 14 days of today.
4. The plaintiff is to pay the defendant’s costs.
5. The action is listed in the Registrar’s Defamation Directions List on 2 May 2003.
Appendix A
“The Sydney Morning Herald” 19-20 October 2002
1. Speaking up for Mr Sin
2. The 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.
3. Just 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 St outlet in Surry Hills.
4. Maybe 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 been sullied by the media.
5. McClintock said his client’s reputation – undeserved and the result of biased media coverage – should have no bearing on his status as a “fit and proper person”. He argued that Saffron had served his time in jail for tax offences and had always maintained his innocence.
6. And while he had been adversely mentioned in royal commissions and the like, his client had not been charged. McClintock went further telling the full bench of the Licensing Court that some evidence had later been discredited.
7. Our favourite part was that Saffron’s failure to tell West Australian authorities about convictions under NSW liquor law was an “inadvertent mistake” by his accountant.
8. Terrence Lynch, for the Crown, argued that Saffron’s behaviour had been consistent over many years (ie. consistently bad) and there was no evidence he had changed his ways.
9. Listening attentively to all this was the man years ago dubbed by the media as Mr Sin. That was, of course, until Mr Sin’s hearing aid malfunctioned. Saffron was given permission to sit at the front of the court to enable him to hear the evidence more clearly, and an assistant was dispatched to his office to collect a back-up device. However, the new hearing aid didn’t prevent the afternoon’s evidence proving soporific for the octogenarian, who nodded off a few times.
10. The court has reserved its decision.
11. Photo of Abe Saffron yesterday, at 83.
12. Photo of Abe Saffron in 1951 at a nightclub he owned.
Last Modified: 04/22/2003
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