SAFFRON v JOHN FAIRFAX PUBLICATIONS PTY LTD

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT 20556/02 FILE NUMBER(S) : LOWER COURT Levine J JUDICIAL OFFICER :

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 1 SPIGELMAN CJ: I will ask Mr Justice Sheller to deliver the first judgment. 2 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. 3 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. 4 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. "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 Street 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 has 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."

5 It is notable that, in the paragraph numbered 3, appear the words: "Just because he had an unsavoury reputation - all of it undeserved and completely the result of the media - was no reason to prevent him from wholesaling grog from the Crown Street outlet in Surry Hill."

6 It can also be noted that, in the paragraph numbered 5, appears the following: "McClintock said his client's reputation - undeserved and the result of biased and media coverage - should have no bearing on his status as a 'fit and proper person'. He argued that Saffron has served his time in goal for tax offences and had always maintained his innocence."

7 In his further amended statement of claim the plaintiff alleged that the matter complained of in its natural and ordinary meaning conveyed each of three imputations which was defamatory of the plaintiff. 8 Under s7A of the Act it was for the jury to determine whether the matter complained of carried each or any of the imputations alleged and, if so, whether the imputation so carried was defamatory. 9 In accordance with practice the jury was required to answer questions in respect of each imputation. The first question was whether the plaintiff had established that the article conveyed of and concerning him to the ordinary reasonable reader the imputation pleaded or one not substantially different. 10 In respect of the first and third imputations alleged the jury answered "No" to this question with the result that the plaintiff failed in his claim based on those imputations. Leave to appeal was not pressed based on those imputations and they require no further consideration. 11 In respect of the second imputation which was pleaded as: "The plaintiff had an unsavoury reputation (3, 5, 6, 7, 8 and 9)" and those numbers were a reference to the numbered sections of the copy of the article, the jury answered the first question "Yes". 12 This led the jury to the second question; whether the plaintiff had established that the imputation was defamatory of the plaintiff. The jury answered that question "No". The plaintiff applies for leave to appeal from that part of the jury's determination. 13 The grounds of appeal, if the plaintiff is granted leave, are that: 1. The jury should have held that the imputation was defamatory of the appellant; 2. The jury did not act reasonably in determining that the imputation was not defamatory of the appellant but instead acted perversely in its determination.

14 In particular the plaintiff relied upon par 2 of the article and that part which reads "Just because he had an unsavoury reputation." According to the Macquarie Dictionary "unsavoury" means "socially or morally unpleasant or offensive." It was submitted by Mr Evatt, on behalf of the plaintiff, that any imputation is defamatory if it leads to lower or adversely affect a person in the estimation of others or adversely affect any aspect of his reputation; see generally Gatley on Libel and Slander, 9th ed, par 2.7. It was said that the imputation "unsavoury reputation" would also be likely to cause the plaintiff to be hated or despised or cause others to shun or avoid him; Gatley as pars 2.2 and 2.6. Mr Evatt submitted that to say of a person that he has an unsavoury reputation must be defamatory of that person. That conclusion as it was put to us, is inescapable. It follows that the jury's decision was perverse. It was submitted that no reasonable jury, properly directed, could have concluded that the imputation was not defamatory of the plaintiff and for that reason the jury's verdict on this imputation must be overturned. It was further said that counsel for the defendant did not submit that the imputation was not defamatory but left it to the jury. 15 In John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657, the High Court held that appellate intervention with jury verdicts will be warranted where it is determined that the verdict was "one that no reasonable jury could reach". This was said in a context that the fact that an appeal lies to a Court of Appeal from a jury verdict does not entitle the court to substitute its own opinion for that of the jury and that, in determining such appeals, the principle that the jury has an especially significant constitutional role to play is paramount. Both as a practical and a legal matter, the jury's decision on a factual question, although by no means impregnable, has an authority over and above that of a decision of a Judge sitting alone to decide a factual question because the jury is representative of the community. 16 Although in a dissenting judgment the following observations of McHugh J seem to me particularly important in considering an appeal such as the present: "[17] In determining whether a civil jury acted reasonably in reaching its verdict, an appellate court must approach the case on the basis most favourable to the respondent to the appeal. The question for the appellate court is not whether the verdict is right or appears to be right but whether in the light of the evidence the verdict shows that the jury failed to perform its duty. As long as the verdict cannot be described as irrational, it must stand. As Else-Mitchell J pointed out in Carr v. Sydney City Council (1963) 80 WN (NSW) 397 at 402, an appellate court is not entitled to set aside a jury's verdict because the court regards the verdict 'as illogical, unsatisfactory or different from that which it would itself have reached'. These principles apply to appeals in defamation actions as well as to appeals in other common law actions. [18] Because the issue of libel or no libel is usually a matter of 'impression', however, appellate courts set aside jury verdicts on the ground of unreasonableness, even less frequently then they set them aside in other actions. The need for restraint is heightened by the knowledge that the meaning of a publication and whether it is defamatory depends on whether ordinary reasonable readers would think it had the meaning alleged and, if so, whether that meaning is defamatory. It is for the jury to say what the words of the publication would mean 'to ordinary men and women going about their ordinary affairs'. Juries are more likely than Judges to be able to assess the reactions of ordinary reasonable readers. At all events, the collective impression of a jury is more likely to be representative of the community's impression of the publication than the collective impression of a panel of appellate Judges, however experienced or learned the panel may be. The New South Wales Parliament has certainly taken that view. In that State, Judges decide every issue in a defamation action except meaning and defamation. Given the enactment of s7A of the Defamation Act , the need for appellate restraint is even greater now than it was in 1990 when Kirby P said 'Judges must exercise care and restraint in invading the functions reserved by Parliament for juries'." [19] Occasions for invading the jury's function occur even less frequently when the jury has found that a publication is not defamatory. Rarely have appellate court sets aside a jury's finding that a publication was not defamatory. So rarely has it been done that in 1928 in Lockhart v . Harrison (1928) 139 LT 521 at 523 Lord Buckmaster could say 'such cases occur so rarely that within the last century there are only two to which our attention has been drawn in which this power has been exercised.' There have not been many since."

17 Two points were made on behalf of the defendant in the written submissions. It was open to the jury to consider, as was put to them, that ordinary decent people in the community would not think any less of someone merely because they were told that that person had an unsavoury reputation. An ordinary decent person would suspend judgment and not think the less of a person immediately only because they were told of that person's reputation so far as they were concerned. In short, in itself, to describe a person's reputation as unsavoury may not be regarded as something that, in itself, harms that reputation. It leaves open the question for the reader to consider whether or not, even so, the person the subject of the comment is to e thought of any less favourably. 18 In the present case it seems to me particularly important that one look at the particular language relied on, in that part of the article which refers to unsavoury reputation, in the context of the article as a whole and I refer to the decision of this court in Greek Herald Pty Limited v Nikolopoulos (2002) 54 NSWLR 165. As I have already pointed out in the immediate context of the paragraph numbered 3, and after the reference to an unsavoury reputation, is the statement "All of it undeserving and completely the fault of the media". Similarly in paragraph number 5 appears the word "undeserved" followed by "and the result of biased media coverage." In referring there to what Mr McClintock had said, it continued, "and should have no bearing on his status as a fit and proper person." In paragraph 6 there is reference to evidence that had later been discredited. 19 Additionally it was put on behalf of the opponent that the jury might have considered that the imputation spoke to the past, that is that in the past the plaintiff had an unsavoury reputation. If the jury understood the imputation as an historical commentary, which was a conclusion open to them, the jury could rationally have concluded that to say of someone in the present day that they had an unsavoury reputation in the past would not cause a reasonable member of the community to think the less of the plaintiff in the present. The jury might reasonably have considered that the imputation said of the plaintiff that he once had an unsavoury reputation but no longer had such a reputation and that to say that was not defamatory. 20 It seems to me that a consideration of the matter put before this Court was very much, in the result, a matter of impression. Having said so I bear in mind what the High Court has said, and particularly what McHugh J had to say, about appellate intervention. It seems to me, for the reasons referred to, that it was open to the jury to conclude that the particular imputation relied on was not defamatory. Some of the reasons for that possibility have been discussed but, of course, there may have been other reasons, perfectly legitimate, why the jury came to the conclusion that the imputation was not defamatory. Read as a whole the jury may well have regarded par 3 as speaking of the past and the balance of the article concerned to present the plaintiff's current status as a fit and proper person. This Court must accept that the jury is regarded as more able to determine whether the imputation conveyed was defamatory than are the members of the Court. 21 I am not persuaded that the plaintiff has shown that, in answering the second question about the imputation, the jury was acting irrationally or making a finding that no reasonable jury could have made. Accordingly I would refuse the application for leave to appeal with costs. 22 SPIGELMAN CJ: I agree. 23 HODGSON JA: I also agree. An imputation that a plaintiff has done something discreditable or has a discreditable character must almost inevitably adversely affect the reputation of the plaintiff among right thinking persons. However, in my opinion, a jury could reasonably consider that an imputation that the plaintiff has a bad reputation does not itself adversely affect that reputation, if the jury considers that right thinking persons would take the view that the reputation may be undeserved. 24 The article itself contains a suggestion that the reputation may be undeserved and this was a matter that the jury could take into account, as shown by the case Greek Herald Pty Ltd v Nikolopoulos referred to by Justice Sheller. 25 SPIGELMAN CJ: The order of the Court is the application is dismissed with costs.

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