Skalkos v Assaf

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.