New South Wales Supreme Court CITATION : Assaf v Skalkos [1999] NSWSC 1330 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 18374/99 HEARING DATE(S) : 01/11/99-17/12/99 JUDGMENT DATE : 30 November 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 - whether particulars of justification defence provided to expert witness admissible in evidence. ACTS CITED : Evidence Act 1995. DECISION : See para 6 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CARRUTHERS AJ Tuesday, 30 November 1999 CLD18374/93 Joseph ASSAF & ANOR v Theodore SKALKOS & ANOR EX TEMPORE JUDGMENT - On admissibility of MFI 32; see page 1305 of transcript. 1 HIS HONOUR: At this stage the defendants seek to tender mfi 32, which is a facsimile transmission from Mr Kalantzis, an in-house legal counsel for the defendants, to Mr Greg Prowse, a partner of Deloitte Touche Tohmatsu. The transmission includes a copy of a letter dated 1 December 1997 from Mr Kalantzis to a partner of Mallesons Stephen Jaques, the solicitors for the plaintiffs, containing further particulars of the Lange defence embraced by paragraph 8(a), (Particulars of Common Law Qualified Privilege) in the then defence, and particulars of justification of the then imputation in paragraph 7(a) of the then Statement of Claim, though that imputation has since been amended and it is not sought, in its amended form, to be justified. The letter also refers to other pleaded imputations which are sought to be justified, and one imputation which by order of Levine J was struck out. Annexed to the letter are particulars of truth of imputation 7(a) to which I have already referred, imputation 7(b) which is not now sought to be justified, and imputations 7(c), 7(d) and 7(e). 2 During the course of Mr Prowse's evidence he was cross-examined by Mr Hughes QC for the plaintiffs to suggest that he sought, on more than one occasion, if I am correct, additional information from the solicitors for the defendants which was not made available to him. One can reasonably apprehend that there will be submissions put to the jury by senior counsel for the plaintiffs in that regard. Mr Littlemore for the defendants has submitted to me that it is open to the defendants to put before the jury the particulars contained in MFI 32 because, at page 849 of the transcript (during re-examination) in answer to the question, "Is that the document to which you referred in your letter of 8 December when you said 'I have read the particulars of truth'", Mr Prowse said, "Yes, it is." The document was then marked for identification 32, and no further evidence was led in re-examination on that issue. 3 Mr Littlemore submits that it is most important that the jury be made aware by perusal of MFI 32 of Mr Prowse's instructions and upon what material he was asked to express an opinion and, indeed, there is evidence before the jury that he had been supplied with the particulars of truth and obviously had given consideration to them. 4 I must say that I am at this stage far from convinced that the tender of the particulars would be relevant to the evidence that Mr Prowse has given. However, apart from that situation, the fact is that if this material were to be presented to the jury it would include allegations in relation to matters which have never found their way into evidence. It is a well-established principle that experts, and there is no doubt that Mr Prowse is an expert, are only permitted to express views upon material which is in evidence before the jury. Thus it would offend that principle, in my view, if material were now placed before the jury which was in fact never adduced in evidence. 5 Mr Littlemore has contended that I should not be deterred in ruling upon this matter by the fact that the jury would require most detailed directions in relation to how they could use this material, and that would include the necessity to put out of their mind material that did not find its way into evidence. Also, some detailed explanation would be required in relation to the identified imputations which either no longer exist in their precise form or in respect of which justification is not now sought. Thus, even if I were wrong on the relevance point of view, I would exercise my discretion under s135 of the Evidence Act specifically on the basis that the tender of this evidence at this stage might be unfairly prejudicial to the plaintiffs or misleading or confusing to the jury. 6 For those reasons I reject the tender of MFI 32. 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