Assaf v Skalkos [1999] NSWSC 1333

New South Wales Supreme Court CITATION : Assaf v Skalkos [1999] NSWSC 1333 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 18374/99 HEARING DATE(S) : 01/11/99-17/12/99 JUDGMENT DATE : 8 December 1999

PARTIES : Joseph Assaf & Anor v Theodore Skalkos & Anor JUDGMENT OF : Carruthers AJ at 1

COUNSEL : T E F Hughes QC/K Rees (Plaintiffs) S M Littlemore QC/J R McKenzie (Defendants) SOLICITORS : Mallesons Stephen Jaques (Plaintiffs) T Lazaropoulos (Defendants) CATCHWORDS : Defamation - evidence application for a direction that certain evidence could not be relied upon by the defendants on the defence of justification. ACTS CITED : Evidence Act 1995. CASES CITED : Browne v Dunn (1893) 6 R 67. DECISION : Application granted see para 39.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CARRUTHERS AJ

Wednesday, 8 December 1999

CLD18374/93 Joseph ASSAF & ANOR v Theodore SKALKOS & ANOR EX TEMPORE JUDGMENT - See p 1556 of transcript

1 HIS HONOUR: I have before me an application by Mr Hughes QC for the plaintiffs that I give a ruling, before the addresses commence in relation to the evidence of Mr Assaf at page 447, line 50, when, against objection, he was required to read aloud a portion of a letter dated 26 June 1995 from the Australian Chinese Daily to Telecom. A direction is sought that such evidence cannot be used, as probative in any way, of the truth of the complaint in the letter and is irrelevant to any issue in the case. 2 The judgment which I am about to give should be read in conjunction with the interlocutory judgment I delivered on 1 December 1999, a copy of which has been provided to all parties in the draft form in which it was taken out by the Court Reporting Branch. It has not, as yet, been revised by me. 3 It is necessary, however, for the sake of good order that I repeat certain aspects of the material that is contained in that judgment. 4 There was a particular of the justification defence approved by Levine J upon which the defendants indicated that they would rely as justification of the imputation which is in the following terms: "The plaintiffs conduct the business of Ethnic Communications Pty Ltd by employing bullying tactics towards the smaller ethnic media organisations to make them too frightened to complain about their unethical and wasteful conduct". 5 That imputation is not relied upon in the second publication. 6 Broadly stated, the particular was that the Chinese Daily newspaper Advertising Manager was intimidated by ETCOM in relation to the Telecom advertising in that newspaper. The subject letter was discovered, as part of the discovery process, by the solicitors for the plaintiffs. It is not known how the document came into their possession. 7 It was first referred to in the evidence on 9 November 1999 during of the cross-examination by Mr Littlemore QC for the defendants, of Mr Assaf. 8 At p444, Mr Littlemore put the following question: "Q. You knew the Australian Chinese Daily complained to Telstra you were demanding 20 per cent commission for Telstra advertising".