Assaf v Skalkos

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.