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". Mr Assaf commenced to answer that question, saying: "They could not afford …". 9 His answer was interrupted by an objection by Mr Hughes who stated "The fact a complaint is made is nothing to the point". 10 I allowed the question commenting, "It will fall to the ground if it is denied and not taken up. I don't know what is going to happen" (transcript 445). 11 The cross-examination continued: "Q. You knew the Australian Chinese Daily complained to Telstra that you were demanding 20 per cent on Telstra advertising which they could not afford? A. I knew the Australian Chinese Daily wrote to Telstra and asked for what Telstra asked them. Q. You knew they considered your attitude to be intimidatory, didn't you? A. No, I didn't know that. I knew they wrote to Telstra and told them what they considered". The use of the plural pronoun "they" should be noted. "Q. Have you seen the letter? A. I have seen the letter. Q. In the letter they say your attitude was intimidatory". 12 Mr Hughes objected. Mr Littlemore then had the document, which had been marked MFI 15, shown to the witness, and (at 446) he posed the following question: "Q. I show you both documents, (MFI 15 and copy thereof). You told the jury that the Chinese Daily did not complain that they found your conduct intimidating, didn't you. You did say that didn't you? A. I still say because I know what came after when the client wrote to the Chinese Daily and they confessed they did it without any knowledge of any intimidation". 13 I interpose, presumably that's a reference to a letter by Telecom to the Chinese Daily. Mr Littlemore then put: "Q. So you say. Would you please look at the letter and the highlighted part of it. Would you read that out to the jury, please". 14 Mr Hughes objected, and submitted that the letter was inadmissible because of its entirely hearsay character. In response, Mr Littlemore relied upon s69 of the Evidence Act, 1995, and asserted it was a business record and, as such, was proof of the statements it contains. 15 The proposition that it was a business letter was challenged by Mr Hughes. I commented (at 447): "I find it a difficult problem. I find it difficult to rule upon this in isolation, as it were, because if the matter is going to be pursued further down the line surely the defendant is entitled to deal with the matter while the plaintiff is in the witness box. That is how it seems to me". 16 If I could say, parenthetically, it's clear enough that what was in my contemplation (at least) was the rule in Browne v Dunn, and if the matter were to be pursued in accordance with the particulars, Mr Littlemore was obviously required to put to the witness the content of the letter in order to give the witness the opportunity to deal with it. That is obviously what was running through my mind, to the extent that that is relevant. 17 Thus, I allowed the reading of the letter, and the last paragraph was read on to the transcript: "We don't wish to lose Telecom advertising but consider this matter to be most intimidating and call upon your assistance". 18 The question was then put by Mr Littlemore: "Q. I put to you that the conduct of which the Australian Chinese Daily complained was typical of your conduct towards the ethnic newspapers that would not agree to your rate for the Age Pension News in 1992?" 19 That question was objected to by Mr Hughes, "on the simple ground that the question assumes there was conduct congruent with the complaint". 20 The question was withdrawn and put in the following form: "Q. I put to you a complaint was made by the Australian Chinese Daily and was a truthful one. What do you say? A. It is not truthful. Q. I put to you that they were in fact intimidated by your conduct because they said in the letter? A. They said they were not". 21 I am recorded as having said to the witness: "Excuse me that can be answered yes or no?" 22 There is no record in the transcript of what prompted me to make that statement. However something must have been said. 23 The witness replied: "No, it was not intimidating". 24 Mr Littlemore put to the witness: "Q. I put to you further, acknowledging your last two answers, you engaged in intimidating conduct towards other ethnic newspapers in 1992 and 1993 when they would not agree to the reduced rate for government placement? A. That is not true. Q. Do you agree that if you or your staff sought discounts or other benefits from ethnic newspapers and did it stating that non-compliance would result in them being denied government work, that would amount to bullying? A. So we understand the question, your Honour, because I find it difficult to understand. We only ask a discount if the client ask us to ask for it". 25 The witness then explained that he was having difficulty with the question and pointed out that he has difficulty with the English language, as it is his third language. 26 Then it was put to him: "Q. Do you agree that if you or your company's staff sought discounts or other benefits from ethnic newspapers and did it stating that non-compliance would result in them being denied government work, that would amount to bullying? A. It does not amount to bullying if I ask for the clients, or want clients have a discount". Mr Hughes submitted that the answer should read "If I ask for the clients, or want clients to have a discount." Mr Littlemore submitted that the word "to" should be in brackets as understood, otherwise he would withdraw the agreed correction. 27 For present purposes, it is sufficient that the parties agreed that the sense of the answer was "It does not amount to bullying if I ask for the clients or want clients to have a discount". It shall be noted that the defendants did not call the author of the letter, or adduce any explanation for his not being called. 28 There were no further references in the trial to the Chinese Herald until such time as the defendants sought to tender the letter in question( MFI 15) which was rejected by me for the reasons given in the interlocutory judgment on 1 December 1999. 29 I shall not repeat what I said in that judgment by way of reasons, except to indicate that I formed the view that on the assumption that the letter was prima facie a business record, it nevertheless did not fall within the terms of s69(2) of the Evidence Act, 1995, but on the assumption that I was in error in that regard, the letter should be rejected under s135(a) of that Act. 30 I might say, re-reading that judgment which I was required to do for the purposes of the present application, reference could conveniently also be made to subs(5) of s69 which provides: "For the purposes of this section, a person is taken to have personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard, or otherwise perceived, (other than a previous representation made by a person about the fact)." 31 To the extent that the letter very significantly uses the personal pronoun 'we' and is written by the Advertising Manager of the company, it seems to me that the exception, "other than a previous representation made by a person about the fact" is relevant. 32 Thus, by way of illustration, if the author had said 'I consider this matter to be most intimidating' and, for example, 'the managing director informed me that he (or she) considered it to be most intimidating', that latter representation would be, to my mind, second hand hearsay and fall foul of the exception in s69(5). 33 In any event I am bound by the judgment I earlier gave and I have no reason in any way to withdraw what I there said, or the ultimate view which I expressed. 34 So, focusing now upon the last paragraph of the letter which was read out by the first plaintiff at page 447, the point must be made that it still carries the problem that the plural personal pronoun "we" is used. And to my mind, the material which was read out to the jury (being portion of the letter) could only constitute an asserted complaint by the Australian Chinese Daily to a third party, Telecom. 35 It could not, in my view, constitute evidence going to the substantial truth of the imputation of bullying tactics and consequential fear which I have earlier set out. 36 It does not go to establishing, in other words, that the imputation was true in substance and in fact. 37 One should also recall that the imputation contains a number of elements, one being that the plaintiffs conduct the business of Ethnic Communications by employing bullying tactics and those tactics were directed towards the smaller ethnic media organisations to make them too frightened to complain about their unethical and wasteful conduct. 38 What arose from the cross-examination of Mr Assaf and his reading out of the portions of the letter (at page 447) is completely insufficient, in my view, to go to the truth of the elements of the imputation. Or to put it another way, to go to the sting of the imputation, which includes, of course, a fear of complaining about what was said to be unethical and wasteful conduct by the plaintiffs. And I am satisfied, by the application of the relevant principles in the Evidence Act, that it cannot be construed as truth of what is stated in the letter, to the extent that it was read out by the witness. 39 Thus, I am prepared to accede to the application that the evidence of Mr Assaf at page 447 line 50, when against objection, he was required to read aloud portion of the letter from the Australian Chinese Daily cannot be used as probative in any way of the truth of the complaint and is irrelevant to any issue in the case. 40 I might say, parenthetically, it does seem a little odd, apart from anything I have said above, that such a letter of complaint could be used as evidence that an ethnic newspaper may have been too frightened to complain. However, that is not essential to my decision. 41 The second leg of the application made by Mr Hughes is that there be a direction that Mr Assaf's answer at p448, line 15, cannot go to his credit because the answer is consistent with some communication, not explored in the cross-examination, having occurred between Mr Assaf and someone else about the letter. That is the question I read earlier: "Q. I put to you they were in fact intimidated by your conduct as they said in the letter? A. They said they were not". 42 I find it difficult to make a ruling at this stage in relation to what is essentially a factual matter and without being perfectly clear in my own mind what counsel for the defendants may or may not say about the effect of that question and that answer. 43 Mr Hughes has made it perfectly clear that if any of the answers, one could fairly say, given by Mr Assaf during the relevant cross-examination, which I have set out above, is sought to be used by the defendants as going to the credit of the first plaintiff then he would object. And he has submitted in advance that in his assessment, if I could use that expression, it could result in an application for discharge of the jury. That is not a matter with which I feel that it is my responsibility to deal with in advance, by that I mean to give a ruling, at this stage, on the matter raised in paragraph 2 of MFI 67. 44 The defendants are bound by the ruling I have given in relation to the portion of the letter read out, and one would expect that that ruling will not be abused in any sense. I do not mean that in a pejorative sense. 45 At this stage I am not prepared to give the direction sought in paragraph 2 of MFI 67. Last Modified: 04/18/2001 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.