Assaf v Skalkos

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.