Reported Decision:
(2002) Aust Torts Reports 81-644
New South Wales
Court of Appeal
CITATION: THEODORE SKALKOS & ANOR v JOSEPH ASSAF & ANOR [2002] NSWCA 14 FILE NUMBER(S): CA 40860/00 HEARING DATE(S): 24 and 25 September 2001 JUDGMENT DATE:
13 February 2002PARTIES :
THEODORE SKALKOS & ANOR v JOSEPH ASSAF & ANORJUDGMENT OF: Mason P at 1; Giles JA at 88; Fitzgerald AJA at 139
LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT
FILE NUMBER(S) :CL 18374/93 LOWER COURT
JUDICIAL OFFICER :Carruthers AJ
COUNSEL: Appellant: D F Jackson QC/ J A Darvall
Respondent: TEF Hughes QC/ K A ReesSOLICITORS: Appellant: Tony Lazaropoulos
Respondent: Mallesons Stephen JaquesCATCHWORDS: Defamation - qualified privilege - whether judge conflated issues of malice and excess of occasion of privilege - Judge's conclusions on qualified privilege at common law not a discretionary ruling - whether in emphasising the inaccuracy of the imputations the judge overlooked the fact privilege may be attracted despite untrue defamatory statements - Schedule of questions placed before the jury -form of template misleading - inconsistency in answers - whether trial judge entitled to treat second answer as surplusage - whether answers could not logically stand together - whether s13 Defamation Act defence should have been available - Adequacy of summing up. (D) LEGISLATION CITED: Defamation Act 1974 (NSW) CASES CITED: Assaf v Skalkos [2000] NSWSC 418;
Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354;
Barbaro v Amalgamated Television Services Pty Ltd (1989) Aust Tort Rep 80-264;
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183;
Brancato v Australian Telecommunications Commission (1986) 7 NSWLR 30;
Bugg v Day (1949) 79 CLR 442;
Chappell v Mirror Newspapers Ltd (1984) Aust Torts R 80-691;
Dempster v Coates, Court of Appeal, unreported, 11 April 1990;
Guise v Kouvelis (1947) 74 CLR 102;
Horrocks v Lowe [1975] AC 135;
House v The King (1936) 55 CLR 499;
Huntsman Chemical Co Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242;
John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290;
King & Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305;
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520;
Liquor Marketing Group v Sadler [2000] NSWCA 161;
London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15;
MacKenzie v The Queen (1996) 190 CLR 348;
McDonnell & East Ltd v McGregor (1936) 56 CLR 50;
McLean v David Syme & Co Ltd (1970) 72 SR(NSW) 513;
Morgan v John Fairfax & Sons Ltd (1990) 20 NSWLR 511;
Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374;
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749;
Mourani v Jeldi Manufacturing Pty Ltd (1983) 57 ALJR 825;
Mowlds v Fergusson (1939) 40 SR(NSW) 311;
Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171;
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- AGLC
- Skalkos v Assaf [2002] NSWCA 14
- Case
- [2002] NSWCA 14
- Decision Date
CaseChat Overview and Summary
Skalkos v Assaf concerned an appeal to the Court of Appeal of New South Wales following a defamation trial. The appellant, Skalkos, had sued the respondent, Assaf, for defamatory imputations published in a letter. The primary judge had found in favour of Assaf, upholding a defence of qualified privilege.
The appeal raised several legal issues. These included whether the primary judge had erred in conflating the concepts of malice and excess of the occasion of privilege, and whether the judge's conclusions on qualified privilege at common law were improperly treated as discretionary. The appellant also argued that the judge overlooked the principle that privilege can exist even if the defamatory statements are untrue, by overemphasising their inaccuracy. Further issues related to the adequacy of the summing up to the jury, the form and effect of a schedule of questions placed before the jury, and whether the trial judge was entitled to disregard an answer in the schedule as surplusage due to inconsistencies with other answers, thereby preventing the availability of a defence under s 13 of the Defamation Act.
The Court of Appeal found no error in the primary judge's approach. It held that the judge's findings on qualified privilege were not discretionary rulings and that the emphasis on the inaccuracy of the imputations did not demonstrate an error in applying the law of qualified privilege. The court also determined that the schedule of questions, while potentially misleading in its template form, did not invalidate the jury's findings. The inconsistency in the jury's answers was addressed by the trial judge's decision to treat one answer as surplusage, a decision the Court of Appeal found to be justified as the answers could not logically stand together. Consequently, the defence under s 13 of the Defamation Act was not available.
The appeal was dismissed, and Skalkos was ordered to pay Assaf's costs.
The appeal raised several legal issues. These included whether the primary judge had erred in conflating the concepts of malice and excess of the occasion of privilege, and whether the judge's conclusions on qualified privilege at common law were improperly treated as discretionary. The appellant also argued that the judge overlooked the principle that privilege can exist even if the defamatory statements are untrue, by overemphasising their inaccuracy. Further issues related to the adequacy of the summing up to the jury, the form and effect of a schedule of questions placed before the jury, and whether the trial judge was entitled to disregard an answer in the schedule as surplusage due to inconsistencies with other answers, thereby preventing the availability of a defence under s 13 of the Defamation Act.
The Court of Appeal found no error in the primary judge's approach. It held that the judge's findings on qualified privilege were not discretionary rulings and that the emphasis on the inaccuracy of the imputations did not demonstrate an error in applying the law of qualified privilege. The court also determined that the schedule of questions, while potentially misleading in its template form, did not invalidate the jury's findings. The inconsistency in the jury's answers was addressed by the trial judge's decision to treat one answer as surplusage, a decision the Court of Appeal found to be justified as the answers could not logically stand together. Consequently, the defence under s 13 of the Defamation Act was not available.
The appeal was dismissed, and Skalkos was ordered to pay Assaf's costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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