PAVY v JOHN FAIRFAX PUBLICATIONS PTY LTD

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

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?

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 misdirection. 7 The burden on a person making a submission that a jury's verdict is perverse is a very hard one. Both counsel agree that the test is set out in the judgments of this Court in Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 where Hutley JA said at 710: "It was accepted that to succeed, the appellants had to show that upon the most favourable meaning of the imputation, to the upholding of the judgment, the second finding of the jury was perverse." 8 At p 716, Samuels JA, who dissented in the result but not on the appropriate test to be applied, said in that case that whilst a jury in this sort of action "must be allowed great latitude, the rule still is that if their verdict is unreasonable, it must be set aside, in this class of case as in any other. However, we take it that the test requires a case against the verdict which is 'clear and beyond argument'". Samuel JA's quotation comes from Broome v Agar (1928) 138 LT 698, 702 per Sankey LJ. See also Cinevest Ltd v Yirandi Productions Ltd [2001] NSWCA 68, where the authorities are discussed. 9 The principal argument for the appellant was essentially that the second imputation must be considered more or less in isolation. The imputation is that the plaintiff "directed" "violence" "towards" his son. If one asks anyone whether if that imputation was put against any person the community would think the less of that person everyone would answer "Yes", thus the verdict is perverse and unreasonable and cannot stand. Mr Molomby puts that no reasonable person could fail to condemn the infliction of physical violence on infants; equally no reasonable person could fail to regard as defamatory an imputation in the terms found to have been conveyed. This is one of the rare extreme cases where a jury for reasons not easily ascertainable, has made a decision which is unarguably wrong. The mystery is increased by the fact that the defendant presented no contrary argument, and indeed said to the jury "Now I'm not going to ask you I hope anything ridiculous. Obviously one would think that an imputation about violence or an imputation about violence to a child is defamatory and I'm not going to suggest to you otherwise …". 10 The distinction between the two imputations is thus not that the first contains the element of intention to cause harm while the second does not, but that the first contains an intention to cause really serious bodily injury, while the second contains an intention to subject the child to forceful physical action which, though not intended to cause really serious bodily injury, in fact causes the fracture of six ribs. 11 There was considerable discussion before us at the hearing as to whether the jury was entitled to look merely at the imputations pleaded or at their context as well. Because of this, we decided not to give judgment in this appeal until we had considered the argument on that very point which was being raised by Mr Molomby in another appeal which had been listed for hearing and which was eventually heard by the same bench, namely Greek Herald Pty Ltd v Nikolopoulos. 12 Although we disagreed in Nikolopoulos on the principal question, the way the present proceedings were conducted before the jury does not seem to be affected by this point as both sides tended to consider the imputations in their address to the jury in the context of the article. 13 Mr Molomby for the appellant says that it is quite clear that the words "violence directed" towards a child must almost always be defamatory. 14 We must confess that we find it difficult to see how an imputation that a parent directed violence towards his son could be other than defamatory. 15 However Mr McClintock QC, who appeared for the defendant respondent with Mr Smark valiantly tried to say that there would be contexts in which the words might not be defamatory. He gave examples of a rugby union player using violence directed towards an opposing player during a game. A jury might well think that this was laudatory rather than defamatory. Again, a father seeking to prevent a child from choking might violently hit the child to dislodge the foreign matter that was choking the child and in the course of it break ribs. 16 As to the first, it was put by Mason P during argument that he could see that the footballer example might involve a compliment. However he asked Mr McClintock what possible benign spin could be put on the statement made of a father concerning his infant son that the father was intentionally violent towards his son leaving aside the question as to what damage the father intended to cause. 17 Mr McClintock QC endeavoured to answer this question favourably in his client's case, but with great respect, failed. 18 It is possible to imagine situations in which a father could use violence directed towards his child which would not be considered to be defamatory. The obvious case is where an out of control bike is hurtling towards the son and the father violently tackles him to remove him from danger. In that sense the question is one which the jury should deal with. However, the way the present case was run, that sort of example was not in the ball park, and it is difficult indeed to see how the jury could have reached the view that it did. 19 In our view, applying the test in Cairns' case the verdict was perverse. 20 The question that does, however, arise, is what should we do about this perverse verdict. 21 Mr Molomby says that we should make a declaration that the words were defamatory. We do not consider we have any jurisdiction to do that. Our only option is to order a new trial. 22 The next consideration is what sort of new trial should it be? We do not consider that the plaintiff is entitled to a new trial on the whole matter. The mere fact that there was a single verdict entered for the defendant does not alter this view. Nor do we consider, in view of the fact that only the result on imputation (b) was challenged, that the perversity taints the whole result of the trial. 23 Thus, there should be a new trial as to imputation (b) with it being understood that all proper amendments may be made to the existing pleadings provided that the plaintiff is not entitled to have any new trial as to imputation (a). 24 Accordingly the appeal must be allowed, the verdict in favour of the defendant be set aside and that there be a new trial limited to imputation (b) together with such other issues as may arise on the pleadings other than matters with respect to imputation (a). 25 With respect to costs, the defendant basically succeeded before Bergin J, the plaintiff has succeeded on the only issue argued on appeal, but this left one issue still found in his favour by the jury and the trial judge. The proper order for costs is that the plaintiff should pay three-quarters of the costs of the trial before Bergin J and that the respondent should pay the costs of the appeal, with all other questions of costs reserved for decision by the Judge who finally disposes of the matter. ************************

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.