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Assaf v Skalkos

Assaf v Skalkos

Case [2000] NSWSC 418 26 May 2000

Defamation

Qualified Privilege

Admissibility of Evidence

Appeal

Defamation

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CITATION: Assaf v Skalkos [2000] NSWSC 418

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 18374/93

HEARING DATE(S): 01/11/99 - 17/12/99
14/03/00 - 16/03/00

JUDGMENT DATE: 26 May 2000

PARTIES :

Joseph Assaf & Anor v Theodore Skalkos & Anor

JUDGMENT OF: Carruthers AJ at 1

COUNSEL : T E F Hughes QC/K A Rees (Plaintiffs)
S M Littlemore QC/J R McKenzie (Defendants)

SOLICITORS: Mallesons Stephen Jaques (Plaintiffs)
T Lazaropoulos (Defendants)

CATCHWORDS: DEFAMATION - consideration of defences of qualified privilege after jury answered questions of fact pursuant to s 90 - whether answers by jury to questions relating to comment defence inconsistent - whether matter should be referred to the Court of Appeal pursuant to Pt 12, r 2 - whether apparently inconsistent answers can be treated as surplusage - application for amendment of defence and particulars of qualified privilege after jury returned answers to s 90 questions - reasons for refusal of application.

LEGISLATION CITED: Supreme Court Act 1970, s 90
Defamation Act 1974, ss 22, 23

CASES CITED: Toogood v Spyring (1834) 1 C.M & R 181
Stephens v West Australian Newspapers Ltd [1993-1994] 182 CLR 211
Morosi v Mirror Newspapers Pty Ltd (1977) 2 NSWLR 749
Andreyevich v Kosovich & Anor [1947] SR 357
James v Baird (1916) SC (HL) 158
Adam v Ward [1917] AC 309
Loveday v Sun Newspapers Ltd (1938) 59 CLR 503
Allbutt v General Council of Medical Education and Registration (1899) 23 QBD 400
Dunford Publicity Studios Ltd v New Media Ownership Ltd [1971] NZLR 961
Hunt v Great Northern Railway Co [1891] 2 QB 189
Watt v Longsdon [1930] 1 KB 130
Reynolds v Times Newspapers Ltd and Others (1999) 3 WLR 1010
Viro v The Queen (1978) 141 CLR 88
Skelton v Collins (1966) 115 CLR 94
Cook v Cook (1986) 162 CLR 376
Davies v Snead (1870) L.R. 5 QB 608
Reynolds [1998] 3 WLR 862
Perera [1949] AC 1
Webb [1960] 2 QB 535
Blackshaw v Lord [1984] 1 QB 1
Morgan v John Fairfax [No 2] (1991) 23 NSWLR 374
Lange v ABC (1997) 189 CLR 420
Smith's Newspapers v Becker (1932) 47 CLR 279
Wiese v Nationwide News (1990) 4 WAR 263
Radio 2UE Sydney Pty Ltd v Parker [1992-93] 29 NSWLR 448
Mowlds v Fergusson (1939) 40 SR 311
Purcell v Sowler (1877) 2 CPD 215
Bellino v Australian Broadcasting [1995-1996] 185 CLR 183
Guise v Kouvelis (1947) 74 CLR 102
Chapman v Ellesmere (1932) 2 KB 431
McLean v David Syme & Co Ltd (1970) 72 SR 513
Australian Consolidated Press Ltd v Uren (1967-68) 117 CLR 185
Justin v Associated Newspapers Ltd (1966) 86 WN (Pt 1) 17
Lynam v Gowing (1880) 6 LR.Ir. 259
Austin v Mirror Newspapers Ltd [1986] 1 AC 299
MacKenzie v The Queen [1996] 190 CLR 348
Horrocks v Lowe [1975] AC 135
Bray v Ford [1896] AC 44
Bowin and Joyce v Australian Consumers Association [1996] FCA, Lindgren J (unreported, 6 December 1996)
Morgan v John Fairfax…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Assaf v Skalkos

Details

AGLC: Assaf v Skalkos [2000] NSWSC 418
Case: [2000] NSWSC 418
Decision Date: 26 May 2000

CaseChat Overview and Summary

In the case of Assaf v Skalkos, the plaintiff sought to recover damages for defamation against the defendant. The dispute reached the court where the legal issues centred on the defences of qualified privilege and the consideration of these defences after the jury had answered questions of fact under section 90. A significant issue was whether the jury's answers to questions relating to the comment defence were inconsistent, and if so, whether the matter should be referred to the Court of Appeal under Part 12, rule 2 of the relevant court rules. Additionally, the court considered whether apparently inconsistent answers could be treated as surplusage.

The court examined the jury's answers to the section 90 questions and identified potential inconsistencies in the responses relating to the comment defence. The court deliberated on the appropriate course of action, including whether to refer the matter to the Court of Appeal or to treat the inconsistent answers as surplusage. The court also reviewed the application for an amendment of the defence and particulars of qualified privilege submitted after the jury had answered the section 90 questions. In reaching its decision, the court weighed the importance of ensuring consistency in the jury's findings against the procedural steps necessary to address any inconsistencies. Ultimately, the court decided to refuse the application for amendment, explaining its reasoning based on the procedural and substantive considerations involved.

The court's reasoning was grounded in the need to maintain the integrity of the trial process and to ensure that any inconsistencies in the jury's findings were appropriately addressed. The court concluded that the apparently inconsistent answers could not be treated as surplusage and that the matter did not warrant referral to the Court of Appeal. Instead, the court refused the application for amendment of the defence and particulars of qualified privilege, emphasising the importance of procedural fairness and the proper administration of justice. The final orders reflected the court's decision to uphold the integrity of the trial process and to deny the application for amendment.

Orders