SIMON KONSTANTINIDIS v FOREIGN LANGUAGE PUBLICATIONS Pty Ltd [2002] NSWSC 761

New South Wales Supreme Court

CITATION : SIMON KONSTANTINIDIS v FOREIGN LANGUAGE PUBLICATIONS Pty Ltd [2002] NSWSC 761 FILE NUMBER(S) : SC 20819 of 1996 HEARING DATE(S) : 26-27 August 2002 JUDGMENT DATE : 26 August 2002

SIMON KONSTANTINIDIS (Plaintiff)

PARTIES : v

FOREIGN LANGUAGE PUBLICATIONS Pty Ltd (Defendant) JUDGMENT OF : Levine J

T Blackburn (Plaintif) COUNSEL : T Molomby (Defendant) Mallesons Stephen Jaques (Plaintiff) SOLICITORS : T Lazaropoulos (Defendant) CATCHWORDS : On application to call identification evidence LEGISLATION CITED : Defamation Act 1974 Evidence Act 1995 CASES CITED : Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41 Morgan v Odhams Press (1971) 2 ALL ER 1156 DECISION : See paragraphs 14 & 16

- 3 - DLJT: 1 (Ex Tempore- REVISED)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION D EFAMATION LIST

JUSTICE DAVID LEVINE

MONDAY 26 AUGUST 2002

20819 OF 1996 SIMON KONSTANTINIDIS (Plaintiff)

v

FOREIGN LANGUAGE PUBLICATIONS Pty Ltd (Defendant)

JUDGMENT (On application to call identification evidence) 1 The anticipated commencement of the 7A hearing in this matter today has given rise to a dispute which points to, in my view, a very simple issue. 2 The plaintiff is not named in the matter complained of. In accordance with pleading practice it is averred in the further amended statement of claim in paragraph 3 that the defendant published, "of and concerning" the plaintiff, the material in the annexure. In accordance with pleading requirements the plaintiff has particularised 16 facts in support of the issue of identification. 3 The defendant has filed in court by leave today a further amended defence which, on its face, puts in issue for the purposes of the 7A trial only the two factual matters: whether the matter complained of carries the imputations and whether any such carried imputations are defamatory. 4 It is clear that the defendant has conceded that the issue that would otherwise have been established by proof of the matters in the particulars by the calling of witnesses is not an issue in that the particulars are conceded to be true. The defendant concedes, as I understand the concession which has not been made otherwise than orally, that one reader at least of the publication, in Greek, would have understood paragraphs 70 to 75 as referring to the plaintiff. That being so, as contended for the defendant, there is no issue in respect of which relevant evidence can be called by the plaintiff on what is usually described as identification. 5 One would be inclined to think that if the defendant does not propose to place in issue that the matter complained of would have been understood by one reader as referring to the plaintiff, that would be the end of the matter. The plaintiff would be entitled to litigate the two issues of fact to which I have referred on the basis that there is no issue between the parties that the article in that relevant part of it was understood to refer to the plaintiff. The only issues therefore would be whether that article carried the defamatory meanings of the plaintiff. 6 On Friday, when this matter was first agitated, concern was expressed in relation to the peculiar status of an imputation under s 9 of the Defamation Act 1974: namely, that it is the cause of action upon which a plaintiff sues. On that occasion there was discussion which led to this, as far as I recall it: that the averment in the further amended statement of claim of publication "of and concerning" the plaintiff is unnecessary and otiose. Secondly, the imputation must be "of and concerning" the plaintiff but, in any event, absent any concessions at all, a plaintiff would not be entitled to call a witness to say (i); "by reason of my knowledge of facts A, B and C, I understood the article to be published of the plaintiff"; and (ii), "I understood the article to be saying of the plaintiff imputations X, Y and Z". 7 That particular area of contention seems to have enjoyed lighter weight this morning, and rightly so if I have correctly perceived the situation. The issue of whether a meaning is conveyed of the plaintiff is distinct from whether the matter is published of and concerning that plaintiff. On the assumption that the matter is published of and concerning the plaintiff in terms of referring to the plaintiff, then it could be taken that the jury could embark upon its task on the basis that the plaintiff is in fact identified and decide whether the article means what the plaintiff says it means about the plaintiff. 8 The context in which the issues of fact are to be determined by the jury has been clarified, as I see it, to the point where they will judge whether or not this article says, of this plaintiff, any one or more of the meanings contended for. 9 I do not see here the issue of identification going to the question of meaning. This case, as it has now evolved in terms of the concessions, can be regarded as cognate with the circumstances as to whether something is defamatory by reference to context. In this regard I have turned my mind to the statements of Mason P in Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41. In the end it has boiled down to what the plaintiff and the defendant can say to a jury. It seems clear to me that there is no room at all for the defendant to put in issue in submissions in any way that a reader of this article in Greek would have understood the last part of it to refer to Mr Konstantinidis. There is no way at all for the defendant, in the light of what Mr Molomby has said, to say to the jury that any such reader would have been otherwise than reasonable in coming to the understanding that the last part of the article referred to Mr Konstantinidis. 10 If the last part of the article is conceded as being understood as referring to Mr Konstantinidis then I would have thought, as I have intimated above, the issues become of the usual kind: does the article mean what the plaintiff says it means about Mr Konstantinidis? Are any such meanings defamatory? 11 As to the plaintiff, in the light of the concession by the defendant, the issue as to whether or not this publication in its original Greek would have been understood by one reader, reasonably, as referring to the plaintiff is finalised in favour of the plaintiff leaving only the other two factual issues to which I've referred. 12 The area of extraordinary sensitivity is almost evolved to the point of banality. Can Mr Blackburn say the words "at least one or several"? The anxiety in the defendant is that, by reference to more than one in some way the status of the plaintiff, the seriousness of the libels, the extent of his hurt is brought into play and elevated to a level that could only operate to the prejudice of the defendant. That approach by the defendant in my view is unreasonable. If Mr Blackburn addresses the jury as he indicated in the course of submissions to the effect that, whilst the plaintiff only has to prove that one reader understood the matter complained of as referring to him, a matter the defendant has conceded, though several people did, I cannot conceive of any prejudice to the defendant. Any such remarks, rather than giving rise to prejudice would, in my view, give rise to fairness in the sense of keeping the jury as far as is possible in the totally artificial structure of a 7A trial, in the world of reality. Counsel could then concentrate on what I understand to be the true issues. 13 In the course of submissions on the application for leave to call evidence in the light of the concessions I was referred to the decision of the House of Lords in Morgan v Odhams Press (1971) 2 ALL ER 1156 and the passage in the speech of Morris LJ at 1170. Whilst regard must be had to what his Lordship said, regard cannot be set to one side when one considers that in Morgan's case the issue was "live" as opposed to one being the subject of concessions. 14 Insofar as the plaintiff has applied for leave to call evidence, the matter is not in issue, and I decline that leave. In any event, I would have profound suspicions, and I use that hopefully in a non-disparaging sense, that if such evidence was called, it would be met with objection, founded in s 55 of the Evidence Act and would call for, if not excluded under that section, as being irrelevant, the exercise of that discretion available to me under s 135, more likely than not under subparagraph(c). 15 A 7A trial is concerned only essentially with meaning, it is not concerned with damage. The concessions made by the defendant are such, in my view, that it is open to the plaintiff to present his case on the basis that identification is not in issue and on the basis that several, whilst there is only need for one to have read the article, people did read it and understood it to refer to him. Thereafter the usual submissions as to meaning should follow. 16 It can be taken that I would view with concern any deviation by either the plaintiff or the defendant through his or its counsel from the ambit of each side's case as I have referred to it. I rule accordingly.