SAFFRON v JOHN FAIRFAX PUBLICATIONS PTY LTD [2004] NSWCA 254

New South Wales Court of Appeal

CITATION : SAFFRON v JOHN FAIRFAX PUBLICATIONS PTY LTD [2004] NSWCA 254 revised - 30/07/2004 HEARING DATE(S) : 20 July 2004 JUDGMENT DATE : 20 July 2004

JUDGMENT OF : Spigelman CJ at 25; Sheller JA at 2; Hodgson JA at 23 DECISION : Application dismissed with costs.

CATCHWORDS : DEFAMATION - individual described as having unsavoury reputation - whether finding by jury that not defamatory was peverse - matter of 'impression' - reluctance for appellate intervention - jury more able to determine whether imputation conveyed was defamatory LEGISLATION CITED : Defamation Act 1974 CASES CITED : Greek Herald Pty Limited v Nikolopoulos (2002) 54 NSWLR 165 John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 PARTIES : Abe Saffron - Claimant John Fairfax Publications Pty Ltd - Opponent FILE NUMBER(S) : CA 40984/03 COUNSEL : C A Evatt - Claimant T D Blackburn SC/R P L Lancaster - Opponent SOLICITORS : Brock Partners - Claimant Mallesons Stephen Jaques - Opponent

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."