New South Wales Supreme Court CITATION : Assaf & Anor v Skalkos & Anor [1999] NSWSC 886 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 18374 of 1993 HEARING DATE(S) : 13 August 1999 JUDGMENT DATE : 3 September 1999 JOSEPH ASSAF (First Plaintiff) ETHNIC COMMUNICATIONS PTY LIMITED (Second Plaintiff) PARTIES : v THEODORE SKALKOS (First Defendant) FOREIGN LANGUAGE PUBLICATIONS PTY LIMITED (Second Defendant) JUDGMENT OF : Levine J B McClintock S.C. (Plaintiffs) COUNSEL : S Littlemore Q.C. J Gibson (Defendants) Mallesons Stephen Jaques (Plaintiffs) SOLICITORS : T. Lazaropoulos Foreign Language Publications Pty Limited (Defendants) CATCHWORDS : Contextual imputations - capacity - form - discovery and inspection - interrogatories ACTS CITED : Defamation Act 1974 (as amended) DECISION : See paragraph 35 DLJ: 8 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 18374 of 1993 JUSTICE DAVID LEVINE FRIDAY 3 SEPTEMBER 1999 JOSEPH ASSAF (First Plaintiff) ETHNIC COMMUNICATIONS PTY LIMITED (Second Plaintiff) v THEODORE SKALKOS (First Defendant) FOREIGN LANGUAGE PUBLICATIONS PTY LIMITED (Second Defendant) JUDGMENT (Contextual imputations - capacity - form - discovery and inspection - interrogatories) 1 To the first publication complained of in addition to pleading a defence pursuant to s 15 of the Defamation Act 1974 the defendants have pleaded the following contextual imputations (s 16): "8(i) the plaintiffs were guilty of profiteering at the expense of the Australian government; (ii) the plaintiffs were lining their pockets with taxpayers' monies for doing very little; and (iii) the plaintiffs compounded their rort of the government by using translators without the qualifications and credentials to translate government advertising". 2 With respect to the second publication complained of by the plaintiffs the defendants have pleaded the following contextual imputations: "9(i) the plaintiffs were guilty of profiteering at the expense of the Australian government; (ii) the plaintiffs were taking money from the taxpayers in a 'rort' and giving little in return; and (iii) the plaintiffs compounded their 'rort' by the way they charged for their translating services in that they used translators who had no professional credibility". 3 The plaintiffs contend that the matters complained of are incapable as a matter of law of conveying these contextual imputations. In my judgment of 30 April 1999 (NSWSC 390: DLJ: 6) I commented upon the difficulties confronting both parties arising from the language used in the original letter in English, that is, the first matter complained of and the second publication and its translation (the second matter complained of) (paragraph 10). 4 Insofar as any of the contextual imputations pleaded by the defendants are unsuccessfully attacked by the plaintiff they will be available as defences under s 16 in respect of publication in New South Wales (Chakravarti v Adelaide Newspapers Limited (1998) 193 CLR 519 at pars 8-12 per Brennan CJ and McHugh J). 5 Any notion of expense to the Australian government I am persuaded is incapable of arising from the matter complained of in either of its forms. I am not therefore concerned with any nice question of form in relation to the use of "profiteering" in contextual imputation 8(i). 6 Accordingly, contextual imputations 8(i) and (iii) I find to be incapable of being conveyed by the first matter complained of. 7 As to contextual imputation 8(ii) the argument in the usual way is advanced - "what does it mean?" The imputation is founded in the very language of this publication. It is discrete in form and in my view, capable of being understood as a series of ordinary English words. 8 Contextual imputation 8(ii) will go to the jury. 9 For reasons stated contextual imputation 9(i) I find to be incapable of being conveyed by the matter complained of. 10 As to contextual imputations 9(ii) and (iii) it is to be noted that they each contain the word "rort" in the form (that is, in inverted commas) as used in the translation of the second matter complained of. Nothing according to the arguments for the plaintiff turns on this curiosity. I am certainly of the view that the word "rort" in any event is one in such general usage as to have a natural and ordinary meaning to ordinary reasonable readers (cf. Young & Ors v Munro & Anor (Levine J, unreported, 12 May 1995)). It does not fall within that class of "colloquialisms" which it seems are proscribed as components of imputations. 11 Contextual imputation 9(ii) will go to the jury. 12 Contextual imputation 9(iii) will be struck out. I do not understand it. I do not understand the notion of "compounding" the rort. When one reads the matter complained of the recipient is being invited to consider the credibility of the persons the second plaintiff employs as translators as evidence of the existence of the rort and not something that either aggravates it, compounds it or increases it. This contextual imputation is struck out as bad in form. 13 I do not propose to grant the automatic leave that is usually granted to a pleader in circumstances of the kind with which I have just dealt. This matter is listed for trial on 1 November. The defendant will no doubt consider the status of the remnants of their contextual imputations particularly in the light of the plea of justification they have on the record in relation to the plaintiff's imputations. 14 If the defendants propose further to seek leave they will have to formally move the Court. 15 The balance of the dispute between the parties appears to be concerned with discovery, inspection, a Notice to Produce and failure to answers interrogatories. 16 In relation to a Notice to Produce said to have been served by the defendants upon the plaintiffs no call has ever been made on this Notice and thus there is no present need to determine any question in regard thereto. 17 Page 11 of the transcript of proceedings before me on 13 August 1999 indicate that I have granted leave to the parties to inspect such documents as are in the Registry in response to subpoenas and in respect of which no claim for privilege is made. 18 Thus I have made Order 4 in the Notice of Motion filed in Court on 25 July 1999 by the solicitor for the defendants. 19 Order 2 of that Notice of Motion requires that the plaintiffs require documents sought pursuant to a Notice to Produce dated 14 January 1999. As I have said until a call is made upon that Notice there is no obligation upon the plaintiff so to do. That disposes of Order 2. 20 The first order sought in the Notice of Motion is that the plaintiffs provide "further and better discovery of the documents listed in the Affidavit pursuant to Pt 23 r 7 of …". 21 An affidavit by the defendants' solicitor, Mr Tony Lazaropoulos, sworn 23 June 1999 was filed in Court on 5 June 1999. It has never been read. I therefore have no regard to it. I am informed and accept for the purposes of whatever mechanism is available for the disposition of the Notice of Motion and any other dispute between the parties that the plaintiffs have delivered lists of documents on 30 October 1997 and 30 April 1998 and in February of this year. This is in the context, as I understand it, from the material provided to me after argument on 13 August of the particularisation by the defendants of its pleas of justification in communications dated 24 November 1998, 5 January 1999, 21 January 1999, 5 February 1999, 10 June 1999 and 12 August 1999. 22 In the written material provided to me by counsel for both sides there appears to be disputes as to the nature and extent of inspection that has taken place or not taken place, the conditions sought to be attached to it and so on. 23 The plaintiffs contend, for example, in relation to their list of documents served in February this year, that documents C34 to C36 contain confidential information "in relation to which the plaintiffs require Court orders or undertakings before those documents are disclosed to the defendants legal advisers". It is stated (not by way of evidence on the part of the plaintiffs or their solicitors), that neither the defendants solicitors nor counsel have made any further requests for access to these documents. 24 This exemplifies the situation that can only be resolved if there is a formal request for access and it is denied and the Court is moved in a formal way to enable the determination of the issue of whether the confidentiality is such as to preclude inspection even by the defendants legal advisers. This procedure will have to be followed in relation to the mass of material on the one hand asserted to be unavailable, on the other said to have been inspected. This course will focus upon a matter that was mentioned during the course of argument that may be of legitimate concern to the plaintiffs. It is tolerably clear that the parties are commercial rivals. The solicitor on the record for the defendant is an "in-house" solicitor for the defendants and thus there is concern, which I take to be not directed to Mr Lazaropoulos in a personal sense, but rather by reason of his employment status, that information of a confidential commercial nature might fall into the hands of the defendants. I gather from Ms Gibson that undertakings have been given by herself in relation to sensitive commercial material in fact made available. The point has been reached where I frankly do not see it as a necessary task for me to perform to go through the voluminous submissions and documents which have been handed up to me to make specific orders in relation to anything that might range from a "job order" to taxation returns. The parties have had nearly two years to get this action ready for trial and I say that taking into account judgments that have been delivered since February 1998 and the process of discovery to some extent embarked upon by the parties in the meantime. 25 The pleadings (taking into account the ruling at the commencement of these reasons) and the supply of particulars describe the ambit of the issues between the parties against which any question of relevance can be judged. The parties presently are in a far better position than I am to wade their through their own papers to determine that ambit and thus any question of relevance. 26 Mr Littlemore Q.C. rightfully remarked during the course of argument that unless questions relating to discovery, inspection and interrogatories are resolved by the trial, things will have to be done the "long and hard way" namely by cross-examination of Mr Assaf (on the assumption that he is called, of course), which may take days. 27 The material provided to me after submissions (and I acknowledge at my request), still provides no evidentiary or proper basis for me to make an order of the kind sought in Order 1 of the Notice of Motion and I decline to do so. 28 Order 3 in the Notice of Motion relation to the provision of access said to be pursuant to SCR Pt 23 r 11 which merely provides for a party to whom a document is produced for inspection being able to make a copy of that document. A party may make a copy if the party giving discovery and permitting inspection objects to the copying of documents, then the Court should be moved in a formal way for appropriate relief. A generalised order of the kind sought in paragraph 3 of the Notice of Motion cannot particularly in the circumstances of this case be either fair or of any utility as far as I can understand it. I decline to make Order 3. 29 A point has been reached where if the defendants are justifiably aggrieved by what they assert to be the conduct of the plaintiffs and if the defendants can correlate that sense of grievance in a formal, succinct clear way (by reference to identified particulars, identifiable documents and the like), then they should do so. The mechanism of the subpoena should not be overlooked. 30 I turn now to the dispute (of the usual kind) in relation to interrogatories. I have had the benefit of written submissions in chief, in response and in reply from counsel for the parties. 31 I observe that I am not persuaded that as a result of the judgment delivered on 30 April 1999 that there has been such a shift in issues underpinning the pleas of justification as to warrant a repeated assertion of lack of relevance on such a basis. I accept the submissions for the defendant as to the substance of the imputations (pleaded by the plaintiff) which the defendants are justifying and reject the plaintiffs contentions as to the irrelevance of "costs components", "qualifications" and "rates". As far as interrogatories relate to contextual imputations held to be unavailable there will be no requirement to provide further answers. 32 I accept the plaintiffs objection on the basis of oppression in relation to interrogatory 9. 33 Accordingly, the plaintiffs will be directed to provide further answers to interrogatories 1, 2, 3, 4, 7, 8, 10 and 11. The basis of objection in relation to the last mentioned interrogatory, in the context of the conduct of this litigation, is really specious. 34 As to the costs of the argument on 13 August, the balance of success will be reflected in an order that each side pays it own costs. 35 The formal orders are: 1. Contextual imputations 8(i), 8(iii) and 9(i) will not go to the jury. 2. Contextual imputations 8(ii) and 9(ii) will go to the jury. 3. Contextual imputation 9(iii) is struck out. 4. As to the defendants' Notice of Motion: (a) I make Order 4; (b) Orders 1, 2 and 3 are refused; (c) otherwise the Motion is dismissed. 5. The plaintiffs are ordered to deliver, within 14 days, further verified answers to interrogatories 1, 2, 3, 4, 7, 8, 10 and 11. 6. Each party is to pay its own costs of the Notice of Motion and proceedings on 13 August 1999. 7. Liberty to restore to the Defamation List on 7 days notice. *********** Last Modified: 09/03/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.