Kordatos v Batounas

[1995] HCATrans 186

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B2 of 1995

B e t w e e n -

STEVE KORDATOS

Applicant

and

MICHAEL THEODOSIOU BATOUNAS

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 22 JUNE 1995, AT 12.03 PM

Copyright in the High Court of Australia

MR A.P.J. COLLINS:   Your Honours, I appear for the applicant.  (instructed by Grays Lawyers)

MR L. BOCCABELLA:   If the Court pleases, I appear for the respondent.  (instructed by Conroy & Associates)

DAWSON J:   Mr Collins.

MR COLLINS:   Thank you, your Honours.  The principal aspect of the appeal is that the learned trial judge correctly applied the law in some detail in respect of the absence of good faith or ill will on behalf of the respondent.  Having applied the correct test in some detail, and having found there was evidence sufficient to find ill will on behalf of the respondent, he made a finding that the statement in a situation of qualified privilege was actuated by ill will and thereby the defence was deprived.  Now, the majority of the Court of Appeal has either indicated that he has restricted the application of the law, and that was in the President’s judgment - and with respect he has, and he has correctly applied it - or alternatively has attempted to substitute their own findings.

The principal basis of the appeal is in Calwell v Ipec the Court found that there was no evidence, no evidence, of ill will that could be left to the jury.  In this instance, after correctly applying the test, correctly directing himself, if one wants, he has found - and it is not disputed, in my respectful submission, in the judgments in the Court of Appeal that there was evidence of ill will - but having found that, and correctly applied the test, that the respondent is deprived of the defence which exists.  In those circumstances, it is respectfully submitted it was not open to the Court of Appeal to make different findings as to whether there was ill will or not.

McHUGH J:   But that is not a special leave point, is it, Mr Collins?

MR COLLINS:   Your Honour, it runs, whether under Order 70 rule 11 of the Supreme Court Rules, the Court of Appeal is entitled to make different findings of fact, in my submission, from the jury, that is from the arbiter of fact in that instance, and in my submission it would be a question of special leave.  That is as high as I can put it though, your Honour, in that respect.

But if the effect of the Court of Appeal’s judgment is that the learned trial judge has confined - and this would be another ground of special leave - has unduly restricted the test in respect to the absence of ill will, then that would be a special leave question in that instance because he has not and it would be open to the Court to find what the correct test to be applied is.  And really, all it is is what is in Calwell, in our submission.

The is the effect of the appeal, your Honours.

DAWSON J:   But it means it just turns on its own particular facts, does it not?

MR COLLINS:   With respect, no, your Honour, because of the finding of the trial judge, of the arbiter of fact, that there was ill will.  It is not even open, in my respectful submission, for the Court of Appeal to attempt to put its own interpretation, particularly on the statement which is in the ‑ ‑ ‑

DAWSON J:   It simply raises the question whether it was open to the Court of Appeal to come to a different conclusion.

MR COLLINS:   Yes, your Honour.

DAWSON J:   Even that would be essentially on the facts.

MR COLLINS:   Except it is not open to find inferences different to that which is found by the arbiter of fact, in my submission, “shall have power to draw inferences of fact not inconsistent with the findings of the jury.”  Now, the arbiter of fact has found, after correctly directing himself, that it was actuated by ill will and there was evidence to support that and, again, as I have said, it is not in the Court of Appeal judgments that it is any different.

DAWSON J:   But that inference in turn was based upon facts, and facts within a very small compass, too.

MR COLLINS:   Agreed, your Honour, but the significant aspect in finding that was the comment in the Queen Street Mall immediately or a few days after the ‑ ‑ ‑

DAWSON J:   It really turns on that entirely, does it not; what inference you draw from that?

MR COLLINS:   With respect, no, your Honour.  In the minority judgment of Mr Justice McPherson there are a number of other factors, including the significant history of ill will between ‑ ‑ ‑

DAWSON J:   True, which provide the context, but the crucial thing was the remark in the Mall.

MR COLLINS:   Can I put it in the terms of the significant factor.  The dispute taken, your Honour, is that in the majority decision of Mr Justice Derrington it seems to be indicated that it is the only factor that was relied upon by the trial judge.  But, with respect, that is not the case.  He found on the balance of probabilities of which that was the most significant factor, and wasclearly indicative of ill will in his view.

DAWSON J:   And it was a question of what inference was available from these facts.

MR COLLINS:   Yes, and in the Sinclair Case they cite from Hatton which says where it is equally open to find it was motivated by good faith as opposed to an absence or by ill will, then it should come down in favour of the respondent but, again, we say it is clear in the trial judge’s decision that he has taken that into count and has found, on the balance of probability, that is he has come over the line to find that it was actuated by ill will.

Those are my submissions, your Honours.  Your Honours, can I indicate that the appeal was filed out of time.  I require an extension.  It was filed, I believe, three weeks out of time.  It is in the material, in the record, for the extension of time.

DAWSON J:   Thank you, Mr Collins.  We need not trouble you, Mr Boccabella.

An extension of time is granted but any appeal arising from this application would turn on its own facts and would involve no point of principle which would attract special leave to appeal.  Special leave to appeal is therefore refused.

MR BOCCABELLA:   I apply for costs.

MR COLLINS:   I cannot oppose that, your Honour.

DAWSON J:   It is refused with costs.

AT 12.10 PM THE MATTER WAS CONCLUDED