Assaf & Anor v Skalkos & Anor [1999] NSWSC 390

New South Wales Supreme Court CITATION : Assaf & Anor v Skalkos & Anor [1999] NSWSC 390 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 18374 of 1993 HEARING DATE(S) : 19 March 1999 JUDGMENT DATE : 30 April 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 : Imputations - capacity DECISION : See paragraph 20

DLJ : 1 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

No 20216 of 1999

JUSTICE DAVID LEVINE

FRIDAY 23 APRIL 1999

PAULA YATES (Plaintiff)

v

ALLEN & UNWIN PTY LIMITED (Defendant)

JUDGMENT (Application for interlocutory injunction) 1 HIS HONOUR: The plaintiff Paula Yates (who now in apparent compliance with the Rules of Court in her Amended Statement of Claim, filed in court today, discloses her address to be out of the jurisdiction, namely in London), seeks to restrain the defendant, Allen & Unwin Pty Limited, from publishing, distributing or causing to be sold, or offering for sale, material said to convey the three imputations in the amended statement of claim. 2 Exhibit A on the plaintiff's application is a paperback book entitled " Michael Hutchence " with a subtitle or blurb: " A Tragic Rock and Roll Story: A Definitive Biography ". Exhibit A bears upon its rear cover what can be described as an Angus & Robertson bar code sales sticker. Exhibit 1 is an identical physical object to Exhibit A together with a review copy slip which on its face indicates publication to be on 16 April 1999. It is this book that is said to give rise to the defamatory imputations, reliance being placed on part only of the second paragraph of page 186 and part only of the last paragraph commencing on page 197 and appearing at page 198. Those imputations are: "5(a) Contrary to the wishes of her lover Michael Hutchence, the plaintiff had unbeknown to him deliberately sought to become pregnant to him and thereby trap him into a permanent relationship. (b) Contrary to the wishes of her lover Michael Hutchence, the plaintiff had intentionally become pregnant to him and thereby trapped him into a permanent relationship. (c) The plaintiff had lied, in claiming after the death of Michael Hutchence to have had fertility treatment, in order to cover up her own deceitfulness in having trapped him into a permanent relationship by intentionally becoming pregnant to him contrary to his wishes". 3 I propose to decline the relief sought. 4 It is impossible presently to give full and detailed reasons, but essentially applications for injunctive relief in respect of a publication which is asserted to carry defamatory imputations must, but rarely do, expose the clearest of entitlement to that relief. In my opinion this is not one of those cases that clearly does. Nor is it one, when I consider all of the material, and there is a lot of it, which has been placed before me, which would bring about the exercise of my discretion in the light of that material and would warrant the restraint imposed upon the defendant constituted by the orders sought. 5 I will say at this stage that I am particularly impressed by the following propositions. This is not a case where, if the jury finds the publications not to carry the imputations, it would be an unreasonable finding. 6 It is a case where the defendant, in commercial circumstances, - the details of which are not known to the plaintiff or indeed to the court - I am satisfied, has embarked upon distribution of the book outside of New South Wales and in New Zealand on the evidence, to an extent where in relation to that publication or that distribution and any consequent sale the plaintiff's remedy would lie only in damages. 7 In any event, nothing in the material permits me to draw any inference adverse to the defendant on the chronology of events, as I understand it, to the effect that it embarked upon the distribution of the book for retail sale in New South Wales and elsewhere in the knowledge of the plaintiff's complaint in the United Kingdom or otherwise in haste to the extent, if at all, that it could lead to a finding disentitling the defendant, even on an application of this kind, to consideration in the exercise of discretion and the weighing of the balance of convenience. 8 Another factor that does impress me (and I can do more at this stage of the day than tabulate the factors): whilst arguably there is consistency between the matter complained of here, and the case in the High Court in England, those proceedings were starkly different to the present. The now exposed terms of the resolution of that litigation (including the plaintiff paying the defendant's costs) cannot be relied upon in any way for the present purposes as being material available to put the defendant on notice. The resolution referred to is available to raise serious questions as to the utility or illusory nature of any undertaking that the plaintiff would otherwise have to give both as to damages or by way of security for costs in the event of there being an application therefor. In this respect, I must remark, it comes as a surprise that there was no suggestion that any such offer would be forthcoming from the plaintiff, resident in London, in urgently seeking to restrain publication here. 9 Next, of course on an application of this kind one cannot embark upon a detailed examination of the defences apparently available or which might become available to the defendant. Equally one cannot merely dismiss any reference to the publisher's stated intention to defend, the more so when the publication complained of is a book. Some parts of the text of the book, other than those relied upon by the plaintiff, may well point to available contextual imputations as here suggested. The defendant fairly cannot be expected, in my view, to state now what its position is or might well be in this regard. 10 Next in the tabulation of matters leading to the conclusion adverse to the plaintiff, is the submission that the imputations relied upon by the plaintiff could not, as a matter of law, be found to relate to a matter of public interest. Judicial officers are not quarantined from gaining some general knowledge about a lot of areas of life, not least of which is the pop music industry and its participants and the high profile they can develop and enjoy. Even leaving that to one side, the New Idea article, being part of Exhibit 2, is sufficient to indicate to me that the plaintiff has not been shy about exposing publicly matters in relation to her sexual conduct, to put it very succinctly. The argument that any pleaded imputation could not relate to a matter of public interest, in my view, is unavailable. 11 Finally, in the enumeration of the matters, I am not persuaded that the plaintiff's remedy, otherwise available, namely damages, can be said to be a non-available remedy in this situation. Section 46A of the Defamation Act certainly makes legislative changes that can effect the quantification of damages. This is still an area to be fully explored as to its significance. But I consider it fair to say that the mere enactment of that amending legislation cannot have the effect (1) of the extreme nature advanced by Mr Wheelhouse that defamation damages are going to be so low, that they can never provide an adequate remedy, or, (2) so circumscribe the approach of the trial judge as to link inexorably the computation of damages with awards for non-economic loss in personal injury litigation. 12 I will only remark in relation to the first aspect that, if it be right, that the plaintiff can now say by reason of s 46A: " I will never get enough, so give me an injunction" , the ramifications for free speech would be quite concerning. 13 The application is dismissed. I will stand the Amended Statement of Claim over to the Defamation List on 30 April. 14 The plaintiff is to pay the defendant's costs. **********