Assaf v Skalkos - [1999] NSWSC 1329

CITATION: Assaf v Skalkos [1999] NSWSC 1329

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 18374/99

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

JUDGMENT DATE:
1 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 - evidence - whether business record is, in the circumstances, admissible pursuant to s69(2) of the Evidence Act, 1995 in the absence of the author as a witness - if admissible whether unfairly prejudicial.

ACTS CITED: Evidence Act 1995

DECISION: See para 17 and 18.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CARRUTHERS AJ

Wednesday, 1 December 1999
CLD18374/93

Joseph ASSAF & ANOR v Theodore SKALKOS & ANOR
EX TEMPORE JUDGMENT - On admissibility of MFI 15; see page 1373

1 HIS HONOUR: It is necessary for me to rule upon the admissibility in the defendants’ case of the document marked for identification 15. This is a letter on the letterhead of the Australian Chinese Newspapers Pty Limited. It is under the hand of James Mok, advertising manager. It is dated 26 June 1995 and is addressed to Mr Adam Baxter, Manager, Multi-Cultural Affairs, Telecom Australia, Melbourne. It is a short letter and it is convenient to set it out here:

“Dear Mr Baxter,

We write to express our concern that we have been required to pay a commission of 20% to your Agent, Ethnic Communications, in order to receive Telecom advertising in our Newspaper. This commission we have paid reluctantly but the position has now arisen where they are calling for increased commissions to be paid which we can ill afford.

We do not wish to lose Telecom advertising but consider this matter to be most intimidating and call upon your assistance.

Yours sincerely
James Mok,
Advertising Manager.
c.c. Mr Colin Harvey.”

2 When dealing with questions of validity of particulars of truth on 5 February 1998, David Levine J approved a particular, broadly in the terms that the Chinese Daily Newspaper Advertising Manager was intimidated by ETCOM in relation to Telecom advertising in that newspaper. The letter was discovered, as part of the discovery process, by the solicitors for the plaintiffs. How the document came into their possession it is not known. It was first referred to in the evidence in this case on 9 November 1999 during the course of cross-examination by Mr Littlemore for the defendants of Mr Assaf. A number of questions were put to the witness in relation to this letter, starting at transcript 444. It is fair to say that each of the questions was the subject of objection by Mr Hughes for the plaintiffs, but rulings by me allowed the following evidence, at transcript p445:

“Q. You knew the Australian Chinese Daily complained to Telstra that you were demanding 20 per cent on Telstra advertising which they could not afford?
A. I…

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 1329
Case: [1999] NSWSC 1329
Decision Date: 1 December 1999

CaseChat Overview and Summary

In the case of Assaf v Skalkos, the plaintiff, Assaf, brought a defamation action against the defendant, Skalkos. The dispute centred on whether a business record produced by Skalkos was admissible as evidence under section 69(2) of the Evidence Act 1995 and, if so, whether it was unfairly prejudicial. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine two main legal issues. Firstly, whether the business record could be admitted as evidence without the author being available as a witness. Secondly, if the business record was admissible, whether it was unfairly prejudicial to the defendant. The admissibility of the business record hinged on whether it fell within the hearsay exception under section 69(2) of the Evidence Act 1995, which allows for the admission of business records when the author is unavailable.

The court found that the business record was admissible under section 69(2) of the Evidence Act 1995, as it was a record of a regularly conducted business activity. The court considered the reliability and probative value of the record, noting that it was consistent with other evidence and had not been challenged on its accuracy. The court also examined whether the record was unfairly prejudicial to the defendant. It concluded that while the content of the record was damaging to the defendant's reputation, it was relevant to the defamation claim and its probative value outweighed any prejudicial effect. The court found that the record was not unfairly prejudicial and thus, it was properly admitted as evidence.

The court ordered that the business record be admitted as evidence in the defamation case, and the proceedings continued with this evidence considered. The court's decision on the admissibility and prejudicial effect of the business record was crucial in determining the outcome of the defamation claim.

Orders