Assaf v Skalkos

[1999] NSWSC 1331

CITATION:	Assaf v Skalkos [1999] NSWSC 1331
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	18374/99
HEARING DATE(S):	01/11/99-17/12/99
JUDGMENT DATE:	25 November 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 - admissibility of evidence - whether proposed evidence could rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings.
ACTS CITED:	Evidence Act 1995.
DECISION:	See paras 5 and 9.

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CARRUTHERS AJ

Thursday, 25 November 1999

CLD18374/93

Joseph ASSAF & ANOR v Theodore SKALKOS & ANOR
EX TEMPORE JUDGMENT - On admissibility of evidence; see p1143

1   HIS HONOUR: It is appropriate that I give a ruling on two aspects that have arisen from Mr Hawker’s evidence, which have been amplified by evidence which he has given, by consent of all parties on the voir dire. 2 The problem which arises at the moment flows from the pleas of justification put on by the defendants, some time ago. Very broadly stated, a critical issue in this case is whether certain charges which the plaintiff company rendered to clients, including government departments, were unreasonable. 3 A vast amount of evidence has been put before the Court on the issue of justification and reasonableness. It is fair to say that the parties have been careful, if not anxious, to confine that evidence, so far as reasonably possible, to 1992 and 1993. One matter that has attracted a great deal of cross-examination, and some affirmative evidence, is what is involved in the various processes which have been itemised on invoices rendered by the plaintiff company to various clients. These matters have been the subject of intensive cross-examination and debate during the course of the hearing thus far. There has been video evidence tendered by the defendants, without objection, in relation to certain translation and typesetting processes which goes to the issue of the reasonableness of the amount of time involved in the various processes, the subject of the invoices. However, yesterday the case took a somewhat dramatic turn, although perhaps that is an overstatement, in this respect. 4 Evidence was led from Mr Hawker, who is the proprietor, if I can use that term, of a company only recently set up, which performs similar types of functions to the plaintiff company and, as I understand the evidence, similar, and I am using that term in a general sense, to functions performed by the plaintiff company in 1992 and 1993. The plaintiffs’ legal advisers were unaware that this evidence was to be led, and a particular objection has been taken to the fact that the defendants wish to adduce evidence from Mr Hawker as to 1999 charges by his company in relation to the sort of processes referred to in the invoices. Another aspect, which I suppose could be described as an anterior aspect, is that objection has been taken to evidence being put before the jury by Mr Hawker as to his knowledge of the relevant processes, again using that term generally, in 1992 and 1993. 5 Having taken evidence on the voir dire, which has been the subject of evidence-in-chief, cross-examination and re-examination, I have concluded, within the terms of s55 of the Evidence Act 1995 that evidence by Mr Hawker as to his knowledge of what he asserts to be the processes involved in the descriptions given in the invoices could rationally affect, (directly or indirectly), and I stress indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. One fact clearly in issue is the time taken in 1992 and 1993 to perform certain, if not all, of the relevant processes. That evidence will be, of course, subject to cross-examination. 6 A point forcefully made by Mr Hughes QC on behalf of the plaintiffs is that the witness has conceded on the voir dire that he is not familiar, and has never been familiar, with the way in which these various processes are carried out or were carried out within the plaintiff’s organisation. That is, however, in my view a matter that could be clearly and fairly dealt with in cross-examination and the matter could then be left to the jury’s assessment. I do not think that s135 is relevant on this particular limb of the objection, because of the nature of the evidence that has already been given and the availability of instructions to counsel in relation to these processes. 7 As I understand the evidence, there does not seem to have been a great variation between the way these processes were conducted, generally speaking, within the plaintiff’s organisation in 1992 and 1993 and the way in which they are probably now conducted. However I find the question of whether Mr Hawker can give evidence of the current charges for his organisation in relation to the subject work to be difficult. Mr Littlemore for the defendants has indicated that he does not intend to seek from Mr Hawker, in evidence, any comparison between his company’s charges and those of Mr Assaf’s company in 1992 and 1993. What Mr Littlemore seeks to do is to adduce evidence of the current charges within Mr Hawker’s organisation and invite the jury to translate those charges back to the 1992/1993 years and make a comparison on the basis, I apprehend, that they are so similar, the inference would be available that the 1992/1993 charges were unreasonable. 8 To me this is basically a question of relevance within the meaning of s55. It seems to me that there are so many variables involved in that exercise that evidence of current charges by Mr Hawker’s company could not rationally affect, directly or indirectly, the assessment of the probability of the existence of the fact in issue, namely, the reasonableness or otherwise of the charges by the plaintiff company six or seven years ago. This would inject into the jury’s deliberations an element of speculation that would not have been contemplated by the draftpersons of s55. It opens up, on the eighteenth day of the trial, or the seventeenth day of the trial, perhaps to be fairer, a whole new area of investigation. Whether Mr Hughes could or could not get instructions to deal with it, within the time parameters that jury trials involve, I leave as an open question. I have no doubt that that would be an extraordinarily difficult matter for a number of reasons, bearing in mind the diverse factors involved. 9 I do not think that it is necessary to turn to s135 to resolve this second limb of the argument. In my view it is purely a question of relevance within the terms of s55. There is insufficient evidence before me to justify my concluding that the jury could make a rational comparison between current charges and 1992/1993 charges. Accordingly, I will permit the defendants to lead evidence from Mr Hawker as to his knowledge in 1992 and 1993 of the processes in the invoices as he understands it. That will, of course, be the subject of cross-examination, which no doubt will focus upon his unfamiliarity with the specific processes conducted within the plaintiff organisation. That to my mind does not render the evidence on that limb inadmissible.

Last Modified: 04/18/2001