SAFFRON v JOHN FAIRFAX PUBLICATIONS PTY LTD [2003] NSWSC 574

New South Wales Supreme Court

CITATION : SAFFRON v JOHN FAIRFAX PUBLICATIONS PTY LTD [2003] NSWSC 574 HEARING DATE(S) : 23 June 2003 JUDGMENT DATE : 27 June 2003

JUDGMENT OF : Levine J DECISION : 1. I grant leave to the plaintiff to file a further amended statement of claim in accordance with paragraph [16] of these reasons within 14 days thereof.; 2. The defendant is to file its s7A defence within 14 days thereafter.; 3. Pursuant to SCR Pt 31 r 2 I order a separate trial by jury pursuant to s7A of the Defamation Act.; 4. I place the matter in the list for call up for s7A trial.; 5. Each party is to pay his and its own costs.

CATCHWORDS : Imputations - capacity -form ABE SAFFRON (Plaintiff)

PARTIES : v

JOHN FAIRFAX PUBLICATIONS PTY LTD (Defendant) FILE NUMBER(S) : SC 20556 OF 2002 C Evatt (Plaintiff) COUNSEL : T Blackburn (Defendant) Brock Partners (Plaintiff) SOLICITORS : Mallesons Stephen Jacques (Defendant)

DLJ:2 [2003] NSWSC 574 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

JUSTICE DAVID LEVINE

FRIDAY 27 JUNE 2003

20556 OF 2002

ABE SAFFRON (Plaintiff)

v

John Fairfax Publications Pty Ltd (Defendant)

JUDGMENT (Imputations – capacity –form) 1 Pursuant to the orders made by me in my judgment of 17 April ([2003] NSWSC 320) the plaintiff proposes to plead the following imputations: 3(i) The plaintiff was years ago justifiably dubbed by the media as being Mr Sin. (ii) The Plaintiff has been dubbed by the media as Mr Sin because his behaviour had been consistently bad over many years. (iii) The Plaintiff's reputation was justifiably sullied by the media when he was described as Mr Sin. (iv) The Plaintiff's behaviour was consistently bad over many years with the result he was justifiably described by the media as being Mr Sin. (v) The Plaintiff's reputation has been justifiably sullied by the media. (vi) The Plaintiff had an unsavoury reputation. (vii) The Plaintiff concealed convictions under the NSW Liquor Law from the West Australian authorities. 2 The text of the matter complained of is appendix A hereto. 3 As to imputation (i), conformably with what I said in paragraph [7] of my earlier judgment I strike this imputation out as bad in form. The difficulty the plaintiff has is with the use of the term "Mr Sin". 4 As to imputation (ii), the difficulty above referred to in my view is eliminated by reason of the second part of the formulated imputation. "Mr Sin" is, as it were, defined by reference to the consistently bad behaviour over many years. Otherwise, of course, the language of the imputation is clearly founded in the matter complained of. 5 I find imputation (ii) proper in form, capable of being carried by the matter complained of and capable of being defamatory. 6 As to imputation (iii), in addition to the problems associated by the bare reference to "Mr Sin", I am quite unable to see any foundation in the matter complained of that warrants the use of the word "justifiably". The paragraphs in which there is a reference to both the plaintiff's reputation and the part the media is said to have played in its evolution, clearly suggest that the media has "unjustifiably" sullied the plaintiff's reputation. If that imputation was properly captured and the problem of "Mr Sin" overcome, it could hardly be argued that such a meaning was defamatory. 7 I find imputation (iii) incapable of being carried by the matter complained of. 8 As to imputation (iv), I strike this imputation out as it does not differ in substance from imputation (ii). 9 As to imputation (v), this imputation of course is an attempt by the plaintiff to avoid a meaning that arguably more clearly emerges from this publication but which the plaintiff might well chose not to plead for fear of a successful defence of justification. Again I have difficulty with the notion of "justified". Whilst the matter complained of in terms states Mr McClintock's experience in the world of "reputations alleged to have been sullied by the media", that cannot give rise to this meaning, which meaning. 10 As to imputation (vi), in view of the contents of paragraph 3 of the matter complained of it is hardly arguable that this imputation is incapable of being carried by the matter complained of. Equally, it is hardly arguable that it is incapable of being defamatory. I find that imputation (vi) is capable of being carried, capable of being defamatory, and is quite proper in form. 11 The plaintiff proposes to plead imputations by way of true innuendoes namely: 3A(a) The Plaintiff was justifiably described by the media as Mr Sin. (b) The Plaintiff was the main organiser of prostitution and vice rackets in Sydney. 12 In the proposed amended statement of claim the "extrinsic facts" are set out as follows: In the 1970's the newspapers known as "The Daily Mirror", "The Sun", "The Sydney Morning Herald", "Daily Telegraph" and "Sunday Telegraph" frequently alleged there was a person known and described by them as "Mr Sin" who was the main operator of prostitution and vice rackets in Sydney. These facts were well known to the general public and to persons who read the material complained of and the newspapers referred to. 13 It will be seen that the vice attending the proposed imputation by way of true innuendo (a) has already been exposed and I hold that the matter complained of is incapable of carrying this meaning as a true innuendo. 14 None of the extrinsic facts are capable of supporting true innuendo (b). The particularised extrinsic facts, amongst other things, appear to state that various publications in the 1970s made allegations that there was a person who was the main operator of prostitution and vice rackets. Even if there were people who knew that the variously named newspapers in the 1970s alleged the existence of a person "Mr Sin" as the main operator of prostitution and vice rackets in Sydney, that is insufficient to bring it about that this matter complained of carries true innuendo (b) which asserts as a fact that the plaintiff (Abe Saffron) was the main organiser of prostitution and vice rackets in Sydney. 15 I hold the matter complained of incapable of carrying by way of true innuendo imputation (b) referred to. 16 Accordingly, the outcome of this application is that the plaintiff is entitled to plead imputations (ii), (vii) and (vii). 17 The orders are: 1. I grant leave to the plaintiff to file a further amended statement of claim in accordance with paragraph [16] of these reasons within 14 days thereof. 2. The defendant is to file its s7A defence within 14 days thereafter. 3. Pursuant to SCR Pt 31 r 2 I order a separate trial by jury pursuant to s7A of the Defamation Act. 4. I place the matter in the list for call up for s7A trial. 5. Each party is to pay his and its own costs.