Konstantinidis v Foreign Media Pty Limited & 3 Ors Konstantinidis v Foreign Language Publications Pty Limited

[1999] NSWSC 1054

CITATION:

Konstantinidis v Foreign Media Pty Limited & 3 Ors Konstantinidis v Foreign Language Publications Pty Limited [1999] NSWSC 1054

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20998 of 1995; 20819 of 1996

HEARING DATE(S):

20 May 1998

JUDGMENT DATE:

27 October 1999

PARTIES :

SIMON KONSTANTINIDIS
(Plaintiff)

v

FOREIGN MEDIA PTY LIMITED
(First Defendant)

THEODORE SKALKOS
(Second Defendant)

TONY LEONIS
(Third Defendant)

GEORGE STAVROULAKIS
(Fourth Defendant)

SIMON KONSTANTINIDIS
(Plaintiff)

v

FOREIGN LANGUAGE PUBLICATIONS PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	J S Wheelhouse (Plaintiff)
SOLICITORS:	Mallesons Stephen Jaques (Plaintiff) T Lazaropoulos (Defendants)
CATCHWORDS:	Amendment of pleadings - costs - issues as to translation of publication in a foreign language
DECISION:	See paragraph 22

DLJ: 3

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

No. 20998 of 1995
No. 20819 of 1996

JUSTICE DAVID LEVINE

WEDNESDAY 27 OCTOBER 1999

Simon KONSTANTINIDIS
(Plaintiff)

v

FOREIGN MEDIA PTY LIMITED
(First Defendant)

THEODORE SKALKOS
(Second Defendant)

TONY LEONIS
(Third Defendant)

GEORGE STAVROULAKIS
(Fourth Defendant)

Simon KONSTANTINIDIS
(Plaintiff)

v

FOREIGN LANGUAGE PUBLICATIONS PTY LIMITED
(Defendant)

Judgment (Amendment of pleadings - costs - issues as to translation of publication in a foreign language)

1    As at 9 December 1997 there were four matters in issues between the parties in each action. The first was the question of whether or not an order for indemnity costs should be made in respect of the complex applications dealt with in the judgment delivered by me on 8 August 1997. The second matter then in issue was the question of whether the Amended Defence filed on 3 September 1997complied with the Orders made by me on 8 August 1997, and the status of a further Amended Defence accepted by the Registry on 8 December 1997 (the day before the first day of argument). The third matter in contention was the question of the translations of the various matters complained of which had been put in issue by the defendants. The fourth matter was a foreshadowed application to have severed a cross-claim which the defendants had instituted. 2    There were two days of argument in connection with the four matters to which I have referred, that is, two days set aside therefor namely, 9 December 1997 and 20 May 1998. The Court was in respect of each day’s argument inundated with bundles of correspondence which overall exemplifies the acrimonious point taking that can arise in litigation of this kind, the daunting quantum of paper the judge is considered to be required to attend to for the disposition of these matters leading to the extraordinary burden upon the judge to “sort out” so-called interlocutory disputes inevitably leading to what the litigants themselves might perceive to be an extraordinarily and unsatisfactory delay in having their case at this level disposed of. 3    As it turns out however the four matters to which I have referred, by 20 May 1998 had resolved to a great extent. By the end of the hearing on 9 December the question of whether or not indemnity costs should be awarded had been argued. The nature and ambit of the dispute in relation to translations had been explored and an order made by me for further discovery in relation to certain radio tapes. The disposition of the dispute in relation to translations remains outstanding. 4    It is quite clear that the Further Amended Defence filed by the defendants on 8 December 1997 should not have been received by the Registry, the leave to file an Amended Defence having been availed of by that filed on 3 September. In the course of submissions on 9 December Mr Lazaropolous for the defendants pointed to the pleading filed on 8 December as being one that merely cured clear defects in that filed on 3 September and one constituting compliance with the Orders made by me on 8 August. 5    The so-called Further Amended Defence being filed on 8 December clearly disadvantaged the plaintiff who on that day was ready to argue the insufficiency (admitted) in the Amended Defence filed in September pursuant to my judgment of August. The time taken on 9 December to deal with the question of indemnity costs and translations precluded consideration of the propriety of the Amended Defence filed in September and the status of the Further Amended filed on 8 December. 6    On 20 May 1998 however a degree of good sense had obviously prevailed and the plaintiff was prepared to accept that leave be granted to the defendants to file that defence in fact filed on 8 December 1997, subject to certain conditions not only as to costs but in relation to the formalisation of the issue between the parties on the question of translation. Furthermore, on 20 May 1998 the plaintiff announced that he did not propose to proceed with the application to sever the cross-claims but reserved his position in regard thereto provided that such actions were diligently prosecuted by the cross-claimants. 7    A matter to be disposed of with comparative simplicity, in my view, is the issue as to translations. In Chinatown Enterprises Pty Limited v Maxims Entertainment Pty Limited (unreported, 13 December 1996) I held that the question of whether or not the translation of a given matter complained of, when in issue, has been proved is a matter for the trial judge and not the jury. This clearly must be so as the jury has the function of determining only whether or not the matter complained of conveys in fact pleaded imputations. It is not part of a jury’s function to decide whether the matter said to convey those imputations is a proper translation from a foreign language. 8 If there is an issue as to translation it is one that must be resolved prior to the determination by the jury of the issue reserved to it under s 7A of the Defamation Act 1974. It is one that can be litigated and decided prior to the empanelling of the jury and upon an order being made that pursuant to SCR Pt 31 r 2, ss 76A and 85 of the Supreme Court Act 1970 that it be separately determined. 9 What the complex exchange of correspondence between the parties points to is the necessity to structure the litigation of that issue. Mr Lazaropolous quite sensibly pointed out that the starting point at least is the comparison between the translation upon which the plaintiff relies with that upon which the defendant relies. The differences may be quite clear. There may be however issues far more complex than, for example, whether or not the plaintiff has correctly translated the word in Greek for a “motor vehicle” by using the word in English, “pineapple”. If the plaintiff’s translation is defective on such simplistic grounds it would be an easy task for the defendant to identify them. If however the issue is beyond one of merely translation in the strict sense but rather one of rendering into English both in words and sense that which was published in Greek, then it is a matter which could call for expert evidence. The dispute can boil down to questions of vocabulary, grammar, punctation and what I have described as “sense”. If the defendant is putting in issue the translation relied upon by the plaintiff then the plaintiff is entitled to particulars at least of those areas upon which the defendant relies in its challenge. That seems to me to be an exquisitely simple exercise. The litigation of any one or all of those issues might well depend in the end upon expert evidence as I have said in which event orders will be made for the exchange of expert reports or the equivalent thereof. 10    If it were not for the intervention of the cross-claim this would be a case where orders could be made for the separate trial of the question of fact as to what the publication in the original language means in English and upon that being decided, whether or not the publication in fact conveys (assuming capacity not to be in issue) the imputations pleaded by the plaintiff. If there is no dispute or issue in relation to a cross-claim for defamation and even if the cross-claim itself involves similar matters in issue as between the cross-claimants and cross-defendants as exist between the plaintiff and defendant then those matters in issue also can be the subject of orders for separate trial. And if there is to be jury involvement then the jury can attend to those matters for its role at the same time. 11    To bring this area of dispute to some crystallised point of finality even at a interlocutory stage notwithstanding and despite the exchanges of correspondence that have persisted in this regard, at the next Directions hearing I propose making order to the effect (a) that the plaintiff in respect of each publication within 3 days provides to the defendant the translation upon which he relies. (b) Within three days thereafter the defendant is to provide the plaintiff with the translation upon which it relies together with particulars of the basis of challenge in relation to vocabulary, grammar, punctuation, sense or any other matter upon which the defendant relies in support of its translation. Upon an order being made for the separate trial of that issue then directions can be given as to the exchange of expert reports. 12    To complain that the plaintiff’s translation as appended to the pleading does not appear to bear the seal or stamp of some authorised translator is really a futile point. If it turns out that the plaintiff’s translation was made by an “amateur” then that may be a matter which affects the determination of the integrity of the translation. It is not to the point for the defendant to whinge to the effect “we have a NAATI translation and you do not therefore we put in issue your translation”. That is the type of querulous nonsense that is to be eliminated from this List. 13    As to the question of indemnity costs. It became clarified that what the plaintiff seeks is in effect an order for costs under SCR Pt 52A r 8 (and r 16 in relation to interlocutory proceedings); that that order for costs be on an indemnity basis pursuant to SCR Pt 52A r 32 and that those costs be ordered to be payable pursuant to SCR Pt 52A r 9. 14    At the outset I reject the submission that I understood Mr Lazaropolous to have made on 9 December that I had in effect dealt with the question of costs in my judgment of 8 August 1997. That is not so. Costs were specifically reserved with directions as to submissions as to indemnity costs. 15    Counsel for the plaintiff relied upon the matters of principle dealt with by Badgery-Parker J in Rouse v Shepherd(No. 2) & Ors (1994) 35 NSWLR 277 and his Honour’s incorporation of the observations made by Shepphard J in Colgate-Palmolive v Cussons (1993) 46 FCR 225 at 233-34. 16 I was taken by Mr Wheelhouse to a bundle of correspondence and directions and pleadings commencing with the original timetable of 6 September 1996 up to a letter from Mallesons Stephens Jaques solicitors for the plaintiff to the solicitor for the defendants dated 6 November 1997. 17 Whilst there is no question that the plaintiff is entitled to an order for costs in his favour in relation to the proceedings culminating in my judgment of 8 August 1997 I am not persuaded that the mere fact that the defendant was unsuccessful is reason for departure from the usual rule. I am not persuaded that there has existed any ulterior motive or improper disregard of the Court’s resources, the plaintiff’s resources or time that requires departure from the usual rule, particularly in the light of the intervention of the Royal Commission into the New South Wales Police Service and what appears to me legitimate inquiries made of the Professional Standards Division of the Law Society of New South Wales. The continuing exchange of correspondence between the parties consequent upon the filing of the original defence on 26 November 1996 raised the very matters dealt with by me in my judgment of 8 August 1997; the language used in some correspondence which I will not bother to repeat - none of these matters persuade me that the conduct of the defendant up to the time of the argument of the issues resulting in my judgment of 8 August 1997 warrants departure from the usual rule. The fact that defamation litigation generates the type of correspondence and time delays exemplified in this case is a matter for disapprobation but I am not persuaded that it is a matter for punishment of the defendant or award for the plaintiff that might be perceived as the consequence of the orders of the kind sought by the plaintiff. 18 I propose therefore in relation to the proceedings determined by me on 8 August 1997 simply to make the usual order that the defendants pay the plaintiff’s costs. 19 Indemnity and consequential orders for costs were also sought in relation to the proceedings on 9 December. The defendants have failed to persuaded me that there is any legitimate reason for their failure to comply with the orders I made on 8 August and file, even if late, on 3 September that defence ultimately filed as a “Further Amended Defence” on 8 December 1997. 20    The plaintiff however was prepared as at 9 October 1997 to permit a further 21 days within which the defendant could file a Further Amended Defence with full and proper particulars (see letter dated 9 October 1997 MSJ to Foreign Language Publications Pty Limited). Given that indulgence granted by the solicitors for the plaintiff (and not ignoring the ultimate acceptance of the Defence filed on 8 December 1997 if only by reason of the operation of the calendar) it hardly seems to me to be appropriate to make the orders sought for the plaintiff in relation to 9 December 1997 either. 21    The appropriate orders for costs are that the defendants pay the plaintiff’s costs of the applications leading to my judgment of 8 August 1997; the costs of the hearing before me on 9 December 1997 and 20 May 1998; costs occasioned to the plaintiff by the Amended Defence filed on 3 September 1997 and the Further Amended Defence filed on 8 December 1997. 22    The formal orders are:

1. The defendants have leave to file a Further Amended Defence; that leave is deemed to have been exercised by the filing on 8 December 1997 of the Further Amended Defence in each action

2. The defendant is to pay the plaintiff’s costs in accordance with these reasons.

3. The matters will be listed for further directions in the Defamation List on 5 November 1999.

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Last Modified: 10/27/1999