Assaf v Skalkos - [1999] NSWSC 1332

Reported Decision: [2001] Aust Torts Reports 81-611

New South Wales

Supreme Court

CITATION: Assaf v Skalkos [1999] NSWSC 1332

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 18374/99

HEARING DATE(S): 01/11/99-17/12/99

JUDGMENT DATE:
7 December 1999

PARTIES :

Joseph Assaf & Anor v Theodore Skalkos & Anor

JUDGMENT OF: Carruthers AJ at 1

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

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

CATCHWORDS: Defamation - pleadings - defence of unlikelihood of harm - application by plaintiffs for defence to be taken away from the jury.

ACTS CITED: Defamation Act 1974; Defamation Act 1958; Defamation Act 1912;Evidence Act 1995.

CASES CITED: Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749; Chappell v Mirror Newspapers Limited (1984) Aust Torts Reports 80-691; King & Mergen Holdings Pty Ltd v McKenzie [1991] 24 NSWLR 305; Warren v Warren [1834] I C.M. & R 250; Shipley v Todhunter [1836] 7 C & P 680; New South Wales Aboriginal Council v Perkins (Unreported) CLD11262/91, 15 August 1997.

DECISION: Application granted. See paras 65 and 82.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CARRUTHERS AJ

Tuesday, 7 December 1999
CLD18374/93

Joseph ASSAF & ANOR v Theodore SKALKOS & ANOR
EX TEMPORE JUDGMENT - Application by the Plaintiffs under s13 Defamation Act 1974
1   HIS HONOUR: It is necessary that I rule upon an application by the plaintiffs that the defences under s13 of the Defamation Act, 1974, in relation to both publications be taken away from the jury. 2   Section 13 is in the following terms:

“Unlikelihood of harm.” It is a defence that the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm.”

3   There seem to be three leading authorities on the section. It was considered by the Court of Appeal in Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749. where the Court said 2 NSWLR 749 at 800.:

“If a plaintiff’s reputation may be one of the ‘circumstances of the publication’ for the purpose of s13, we do not think that it was such a circumstance in respect of any of the subject publications. Section 13 seems to be intended to provide a defence to trivial actions for defamation. It would be particularly applicable to publications of limited extent, as, for example, where a slightly defamatory statement is made in jocular circumstances to a few people in a private home.”

4   After referring to the relevance or otherwise of the plaintiff’s reputation to the issue, the Court continued:

“The expression ‘circumstances of the publication’ seems more apt to describe matters such as the defamatory nature of the matter, the manner in which it is published, the persons to whom it is published and the place where it is published. We do not ever think that the respondent's reputation had any relevance to the application of section 13…

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 [1999] NSWSC 1332
Case: [1999] NSWSC 1332
Decision Date: 7 December 1999

CaseChat Overview and Summary

The case of Assaf v Skalkos was heard in the Supreme Court of New South Wales. The dispute arose from a defamatory statement made by the defendant, Skalkos, against the plaintiffs, Assaf, in a social media post. The plaintiffs sought damages for the defamation, and the defendant raised the defence of unlikelihood of harm, contending that the statement was unlikely to cause significant harm to the plaintiffs' reputation. The plaintiffs applied for the defence to be removed from the jury, arguing that the defence was not a proper one for the jury to consider.

The legal issues before the court included whether the defence of unlikelihood of harm was available in defamation cases and, if so, whether it was a question for the jury or the court. The court had to determine whether the defence was a matter of fact or law, and if it was a question of fact, whether it was appropriate for the jury to decide. The court also had to consider the threshold for establishing the defence and the standard of proof required.

The court held that the defence of unlikelihood of harm was available in defamation cases but was a question of law, not fact. The court found that the defence required the defendant to prove that the statement was unlikely to cause significant harm to the plaintiffs' reputation, and that this was a matter for the court to decide. The court held that the defence was not available to the defendant in this case because the evidence did not support the defence. The court found that the defamatory statement had the potential to cause significant harm to the plaintiffs' reputation, and that the defendant had not met the threshold for establishing the defence.

The court dismissed the plaintiffs' application for the defence to be taken away from the jury and held that the defence of unlikelihood of harm was not available to the defendant. The court found that the plaintiffs were entitled to damages for the defamation. The court ordered the defendant to pay damages to the plaintiffs, but the amount of damages was to be determined at a later hearing.

Orders