Skalkos & Anor v Assaf & Anor - [2002] HCATrans 539

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S45 of 2002

B e t w e e n -
THEODORE SKALKOS
First Applicant
FOREIGN LANGUAGE PUBLICATIONS PTY LIMITED
Second Applicant
and
JOSEPH ASSAF
First Respondent
ETHNIC COMMUNICATIONS PTY LIMITED
Application for special leave to appeal

GAUDRON J
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 2002, AT 9.37 AM

_________________

MR T. MOLOMBY, SC: May it please the Court, I appear for the applicants. MS J.M. BAXTER appears with me. (instructed by Tony Lazaropoulos)

MR T.E.F. HUGHES, QC: May it please your Honours, I appear with my learned friend, MS K.A. REES, for the respondents to this application who were the plaintiffs below. (instructed by Mallesons Stephen Jaques)

GAUDRON J: Yes, Mr Molomby.

MR MOLOMBY: Your Honours, the central proposition at issue in this matter is whether common law qualified privilege, having been established as an occasion, may be defeated by any other means than malice.

GAUDRON J: That perhaps depends on what is meant by “malice”, does it?

MR MOLOMBY: Indeed, your Honour, and might I in a moment come to some recent relevant aspects of that. In our submission, other than the judgments below, in this country there is no case, and for that matter no textbook, in support of the respondents’ position and, most importantly, it is contrary to judgments in this Court. Might I very briefly, for three lines worth, go to the judgment of the Court in Lange 189 CLR. I do not need to take your Honours to the page. I propose to read three lines from page 572, about nine lines into the page, where the Court said this:

At common law, once an occasion of qualified privilege is found to exist, the privilege traditionally protects a communication made on that occasion unless the plaintiff is actuated by malice in making the communication.

In that case considerable attention was given to the defence of common law qualified privilege and the case recognised an extended category of that privilege which was subject to defeasance if the defendant could not show reasonableness. It is, in our submission, paradoxical and quite contrary to the tenor of the consideration of the Court in that case if matters which would be considered centrally as going to reasonableness also are to be taken into account in defeating traditional common law qualified privilege. A more recent decision of this Court illuminating the matter is that handed down ‑ ‑ ‑

GAUDRON J: What it actually held was not that it defeated the privilege but that because of these considerations it was not an occasion of qualified privilege. Is that not correct in this case?

MR MOLOMBY: No, if it please the Court, the phrases used quite frequently in the judgment were “abuse of the occasion”, meaning the occasion found to exist of qualified privilege. I can take your Honours to those…

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.

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Details

Case: [2002] HCATrans 539
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning a dispute between the appellants, Skalkos and Anor, and the respondents, Assaf and Anor. The core of the disagreement revolved around the interpretation and enforceability of a written agreement for the sale of a business, specifically concerning the inclusion of certain assets in the sale and the subsequent conduct of the parties in relation to those assets.

The central legal issues before the High Court were whether the agreement for the sale of the business encompassed the sale of specific equipment, and if so, whether the respondents had breached the terms of that agreement by failing to deliver the equipment. The court was required to determine the proper construction of the written contract and the legal consequences of the parties' actions following its execution.

The High Court's reasoning focused on the principles of contractual interpretation, particularly how to ascertain the intention of the parties from the language used in the agreement and their subsequent conduct. The judges examined the specific clauses of the sale agreement and considered whether the equipment in question was sufficiently identified and included within the scope of the sale. Their Honours concluded that the agreement did not, on its proper construction, include the sale of the disputed equipment, and therefore, there was no breach of contract by the respondents. The appeal was accordingly dismissed.

Orders