JOHN FAIRFAX & SONS LIMITED v FOORD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, MAHONEY and CLARKE JJA 2, 3 March 1988; 17, 27 May 1988 [1988] NSWCA 76 Hope, Mahoney and Clarke JJA Specific consideration and a ruling on imputation11(c) were omitted from the earlier reasons although in the context of the publication of 12 September 1986 it was concluded that the identical imputation was not open. The considerations which led to that result apply with equal force to imputation 11(c). That imputation reads: "(c) Although acquitted of charges of attempting to pervert the course of justice the plaintiff is in fact guilty of such offences." It was contended by the respondent that the matter published on 9 September 1986 and set out in Schedules "E" and "F" to the amended statement of claim - which the respondent intended to rely upon as a single publication - supported the imputation. Hunt J ruled, quite correctly in our opinion, that schedule E when read alone was incapable of providing the necessary support for the imputation. This was because the article identified with some precision the perversions of justice with which the respondent had been charged. His Honour proceeded however to rule that schedule F supported the imputation because of the linking of questionable sentencing practices and perversions of justice. However once the two articles are read together the clear distinction between the subject of the previous trial - attempting to pervert the course of justice in relation to the committal hearing and trial of a Sydney solicitor, Mr Morgan Ryan - and the sentencing disparities under discussion is maintained. This distinction is reinforced by the commentator's statement that in the respondent's previous trial which dealt with "pre trial misdeeds" other questions concerning sentencing arose. We appreciate that there is later reference to the difficulty of drawing a distinction between lenient sentencing and perversion of justice but that statement is insufficient, in our opinion, to raise the suggestion that the respondent was previously acquitted in respect of charges which concerned his sentencing record. Indeed the other article, which is also to be read as part of the one publication relevantly sued upon, denies the link in straightforward terms. In any event nothing that appears in either the article (E) or the commentary (F), is capable of suggesting that there had been a miscarriage of justice when the respondent was acquitted. Our conclusion on imputation 11(c) is the same as on 19(b). It is not open. Accordingly the appeal is allowed in respect of imputation 11(c). These supplementary reasons provide no occasion to alter the costs order. No time was taken on this imputation in the hearing. It was mentioned shortly by the appellant's counsel and not at all by counsel for the respondents. The argument during the hearing focused almost entirely on the use of the word "corrupt" in the imputations and the question whether guilt, rather than suspicion, was conveyed. 2 UNREPORTED JUDGMENTS Appeal allowed in relation to imputation 5 and 19(b). Otherwise dismissed