Assaf v Skalkos

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 - pleadings - defence of unlikelihood of harm - application by plaintiffs for defence to be taken away from the jury. ACTS CITED : Defamation Act 1974; Defamation Act 1958; Defamation Act 1912;Evidence Act 1995. CASES CITED : Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749; Chappell v Mirror Newspapers Limited (1984) Aust Torts Reports 80-691; King & Mergen Holdings Pty Ltd v McKenzie [1991] 24 NSWLR 305; Warren v Warren [1834] I C.M. & R 250; Shipley v Todhunter [1836] 7 C & P 680; New South Wales Aboriginal Council v Perkins (Unreported) CLD11262/91, 15 August 1997. DECISION : Application granted. See paras 65 and 82.

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

CLD18374/93 Joseph ASSAF & ANOR v Theodore SKALKOS & ANOR EX TEMPORE JUDGMENT - Application by the Plaintiffs under s13 Defamation Act 1974 1 HIS HONOUR: It is necessary that I rule upon an application by the plaintiffs that the defences under s13 of the Defamation Act, 1974, in relation to both publications be taken away from the jury. 2 Section 13 is in the following terms: "Unlikelihood of harm." It is a defence that the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm." 3 There seem to be three leading authorities on the section. It was considered by the Court of Appeal in Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749. where the Court said 2 NSWLR 749 at 800.:

"If a plaintiff's reputation may be one of the 'circumstances of the publication' for the purpose of s13, we do not think that it was such a circumstance in respect of any of the subject publications. Section 13 seems to be intended to provide a defence to trivial actions for defamation. It would be particularly applicable to publications of limited extent, as, for example, where a slightly defamatory statement is made in jocular circumstances to a few people in a private home." 4 After referring to the relevance or otherwise of the plaintiff's reputation to the issue, the Court continued: "The expression 'circumstances of the publication' seems more apt to describe matters such as the defamatory nature of the matter, the manner in which it is published, the persons to whom it is published and the place where it is published. We do not ever think that the respondent's reputation had any relevance to the application of section 13 to the subject publications." 5 It was then considered in Chappell v Mirror Newspapers, which, surprisingly is only reported in the Australian Torts Reports. The reference is Chappell v Mirror Newspapers Limited, (1984) Aust. Torts Reports [80-691]. 6 At page 68,946, Moffitt P (with whom Samuels and Priestley JJA agreed) referred to earlier versions of s13, firstly in the Defamation Act 1912 and then in the Defamation Act 1958. His Honour then said: "The present section is different in form to that of either early provision, but each of the three is directed to the occasion or circumstance of the publication as the operative factor to render the defamation trivial. In the end the question is one of the construction of section 13." 7 His Honour referred to the decision in Morosi, without expressing any contrary view to those expressed by the Court in that case. The President continued at page 68,947:

"For the defence to be available 'the circumstances of the publication' must be 'such that the person defamed was not likely to suffer harm.'

The words 'such that' are important. The quality of the circumstances of the publication must be the factor which renders it unlikely that the person defamed will suffer harm. Whereas a defamatory imputation is actionable per se , without damage (ss8 and 9), so that a defendant cannot defeat an action even if he were able to prove that there was no actual damage, the defence under s13 is directed entirely to the circumstances of the publication. It does not change the general law so the defendant can raise an issue on the probabilities whether there is in fact harm caused to the person defamed.

The issue is directed to the quality of the publication in respect of its proneness to cause harm. The words of s13 are 'was not likely to suffer harm' and not 'did not suffer harm' (meaning 'probably did not suffer harm').

The quality of the circumstances of the publication determines at the moment of publication whether it is or is not actionable; Morosi (supra at 799). Actionability does not depend upon an inquiry as to what thereafter happens and in particular whether or not harm in fact probably resulted from the publication. The defence depends entirely on the causative potency of the circumstances 'of the publication' to produce immunity from harm. Hence it is not sufficient to establish a s13 defence that a defendant merely proves 'in all the circumstances' that it is unlikely the plaintiff will suffer harm and even less that the plaintiff has not in fact suffered harm.

To regard s13 as providing a defence in either of these events would in a practical sense destroy the fundamental concept of the law of defamation earlier referred to. There would be substituted in any action for defamation no more than a rebuttable presumption of fact that damage flows from a defamatory imputation." 8 I stress his Honour's phrase "the defence depends entirely on the causative potency of the circumstances 'of the publication' to produce immunity from harm". 9 His Honour then continued, on the same page:

"The apparent purpose of s13 and its predecessors, despite some difference in their terms and application was to give a defence to and hence discourage actions for trivial defamation. This will arise in particular where there is a limited publication. This will more often be the case where the defamation is oral but will sometimes extend to written defamation. Examples of written defamatory imputations of trivial impact published by letter or circular to a limited or particular class of persons can be readily thought of." 10 His Honour then continued at page 68,948:

"What then is comprehended within the term 'the circumstances of the publication'? Publication is the act of communication referred to in s91(1) of the matter carrying the defamatory imputation. An act of communication is one which involves at least two persons being the person or persons on the one hand who publish and the person or persons on the other hand who receive the communication. The person defamed is not involved in the act of communication itself. The person who participates in the communication by receiving it, so harm is or is presumed to have been caused by his receipt of it, is proximate to the communication so it is well arguable that circumstances which relate to his receipt of it and hence special characteristics of him as recipient are apt to be caught up in the circumstances of the publication. Thus a publication of a defamatory statement between friends in a bar may fall within s13 while a like statement published at large would not." 11 There is a corruption in that report which I tried to clear up by obtaining from the Law Courts Library the original transcript, but unfortunately the corruption is in the original transcript as well. So that is how it must remain, although I must say, with respect, that the thrust of what his Honour was saying in that last passage is clear enough. 12 In King & Mergen Holdings Pty Limited v McKenzie, [1991] 24 NSWLR 305. the Court of Appeal (Mahoney, Clarke and Meagher JJA), was pressed (without success) to have Chappell's case reargued, on the basis that it was wrongly decided. At page 311, Mahoney JA, with the concurrence of the other judges, said: "Chappell's case decided that the s13 defence exists only where the fact that the plaintiff 'was not likely to suffer harm' arose because of "the circumstances of the publication". And, in addition it held that the pre-existing bad reputation of the plaintiff was not one 'of the circumstances of the publication …'

In my opinion, Chappell's case was correctly decided in respect of each of these matters. As a matter of statutory construction, it is I think clear that it is to be by reason of the circumstances of the publication that the plaintiff was not likely to suffer harm, for the purposes of the defence. There is no reason requiring departure from the ordinary meaning of the section." 13 His Honour then went on to express the view that the bad (or good) reputation of the plaintiff, absent a compelling reason to the contrary, was not one of the "circumstances of the publication". However, that is not of particular relevance for present purposes. 14 Earlier, his Honour had said at page 309: "The s13 defence involves that the defendant show that, for the reasons stated, the plaintiff at the time of publication, was not likely to suffer harm. This places a significant burden upon the defendant: he must negative not merely that there would be great or substantial harm but that there be 'harm' at all. The significance of what is required in this regard may be require consideration in subsequent cases." 15 Earlier, at page 308, his Honour had said, when referring to the reference by Moffitt P to the defence being intended to discourage actions for trivial defamation: "Nor, in my opinion, did the President intend to indicate, by his reference to 'trivial defamation' or to the kinds of cases to which the section would in his opinion apply, that the defence could not extend to cases in which the term 'trivial' would be inapplicable. His Honour, in my opinion, left those matters for later consideration." 16 It is necessary for me to refer to certain aspects of the evidence in this present case. However, I do so deeply conscious of the fact that the ultimate resolution, or indeed the resolution at all times, of the issues of fact is solely for the jury. 17 The letter in its complete form, which is the subject of this action, was written on the letterhead of Foreign Language Publication Pty Ltd, the second defendant, and signed by T Skalkos, the first defendant. It is dated 21 July 1993 and addressed to The Honourable Mr Paul Keating, Prime Minister of Australia, Parliament House, Canberra ACT 2600. 18 I will quote the first paragraph: "Dear sir,

I write this letter to you as the publisher of the largest group of Ethnic Newspapers in Australia. This letter is not specifically addressed only to yourself Mr Prime Minister but to all your Federal Government Ministers, colleagues and heads of Government Departments and semi-governmental authorities". 19 The letter then goes on to say: "This letter is directed towards the dealings that your Government has with the Ethnic Communities of Australia through the Ethnic Print Media." 20 The letter then contains very stringent criticisms of alleged "middle men", of whom the second plaintiff is one, carrying out work interposed between government and semi-government authorities which are desirous of having advertising and other material placed or included in the various ethnic newspapers which exist in this country. 21 As Mr Littlemore for the defendants stressed in argument, it is necessary to focus upon the actual publications, and I deal here firstly with the asserted publication to the Prime Minister. 22 An interrogatory was administered to the first defendant in the following terms: "Look at the letter dated 21 July 1993 addressed to the Prime Minister, Mr Paul Keating, (Annexure "A"). (b) Did you send this letter or cause it to be sent or given to the Prime Minister and if so when?" 23 The answer to (b) was: "Yes, on or about the date it bears". 24 It was argued by Mr Littlemore that this is not evidence of publication to the Prime Minister or the Prime Minister's office. Mr Hughes for the plaintiffs contended, however, that it was some evidence of publication. 25 I note that in the 8th edition of Gatley on Libel and Slander at para 227, the learned authors state: "It is not necessary for the plaintiff in every case to prove directly that the words complained of were brought to the actual knowledge of some third person. If he proves facts from which it can reasonably be inferred that the words were brought to the knowledge of some third person, he will establish a prima facie case." 26 Then para 228 which refers to various examples, contains the proposition: "Thus proof that a letter was posted is sufficient prima facie evidence of publication to the person to whom it was addressed. 34" 27 Cases cited in footnote 34 are: Warren v Warren [1834] I C.M. & R 250; Shipley v Todhunter [1836] 7 C & P 680 at 686. That statement is also contained in the 9th edition of Gatley. 28 I note, with interest, that in Australian Defamation Law and Practice, at para 5050, Messrs Tobin and Sexton state: "Proof that a letter was posted is prima facie evidence of publication to the addressee. Publication to anyone other than the addressee will not be assumed". 29 It is true that the interrogatory does not refer to the posting of the letter, it refers to causing it to be sent or given to the Prime Minister. Presumably that could include posting. In any event, interestingly the letter in an unsigned draft form did reach the Prime Minister's office in the following circumstances. I do not wish to deal at length with the evidence here, but it is necessary in some respects to do that. 30 At transcript page 330, Ms Anne de Salis, who presently lives in Sydney, gave evidence that she previously worked for the Australian Government in Canberra, and between 1979 and 1992 she was employed continuously by the Department of Treasury. In 1992 she was transferred to the Office of the Prime Minister as a senior advisor. She was the senior advisor for government business which meant that she saw "all the correspondence and advised the Prime Minister on the correspondence" but also had an advisory role in Multicultural Affairs. At this time she had known the first plaintiff and his wife for 20 years; she was aware of the company and the first plaintiff's control of it. She stated (at T331): "I knew Ethnic Communications did quite a lot of work for the government for a number of different departments, the Electoral Commission, the Australian Tax Office, and I think Health Commission, Ethnic Communications had done work for." 31 She was shown exhibit A, which she identified as the text of the letter that she received in an unsigned state. After reading the text of the letter, she spoke to Mr Assaf. She then spoke to the person who runs the office of Multicultural Affairs, which is the unit in the Prime Minister's Office, which manages correspondence dealing with subject matter of the sort that was in that letter. Ms de Salis said: "So I rang the head of that unit who would normally get a signed letter to the Prime Minister concerning immigration or ethnic affairs and asked him to make sure he sent me a copy if it arrived. I also spoke to the Minister of Immigration and Ethnic Affairs … the Honourable Nick Bolkus, because as I recollect it was one of his staff members that brought me the draft copy of the letter." 32 Ms de Salis referred to a discussion with Mr Neil Edwards regarding the letter. He was the head of the Office of Multicultural Affairs, which was the unit within the Prime Minister's department that advised the Prime Minister on that area of policy. 33 Ms de Salis did not accept the validity of what was in the letter and she destroyed it. She gave evidence to the effect that Mr Assaf, the first plaintiff, was known in government circles in which she moved. 34 She said that Mr Assaf's standing was not damaged, in her eyes, by the draft letter. 35 There is one matter which I must, with some hesitation because of my restricted role, refer to in the letter, and that is the section which I mentioned to earlier.

"This letter is not specifically addressed only to yourself, Mr Prime Minister but to all your Federal Government Ministers, colleagues, and heads of Government Departments and semi-governmental Authorities." 36 Mr Littlemore contends that on its true construction, that sentence means that Mr Skalkos was intending to write in similar terms to other prominent persons, as identified in that letter. 37 Mr Hughes, on the other hand, contends that it is in effect an invitation to the Prime Minister, or whoever was handling the matter within his Office, to republish the letter, if thought fit, to those other persons in authority as identified there. Whether that is so or not must ultimately be resolved by the jury, but I must say that I have great difficulty, with respect, accepting the construction which Mr Littlemore puts on it. 38 If it is taken, as I am inclined to think it is, as an invitation to republish, then of course that becomes a critical aspect of this letter. In a sense, although I don't mean this in a technical sense, it becomes a publication somewhat at large, because one would never know the extent to which copies of the letter may be passed on to others. 39 In any event, the evidence to which I have made reference in Ms de Salis's evidence is the total evidence that has been led in this Court as to what occurred in the Prime Minister's office. I must say, bearing in mind that Ms de Salis said that she worked continuously in Canberra whilst working for the Federal government, I do not think the jury would have much difficulty in inferring that she was in Canberra at the time the copy of the letter came into her possession. 40 There is evidence that a signed copy of the letter (exhibit W), came into the possession of an officer at the Melbourne office of Telecom, which was, of course, in 1993, a wholly government-owned instrumentality. 41 Ms Tessa Hall gave evidence that for some years up to 1994 she worked for Telecom in Melbourne. In 1993 her position was Manager Liaison, Multicultural Marketing. She had held that office for just under 12 months. She was shown the letter, Ex W, which is a copy, as I have already indicated, of the full text signed by Mr Skalkos. She said she first saw it probably in late July 1993, when she located it in the in-tray on her desk. She read it a couple of times and she expressed a degree of concern. She had known Mr Assaf for some 8 or 9 weeks. 42 It was of keen interest to her to read the letter because she was responsible for a Telecom launch to the multicultural community in a pre-ballot situation (the Telecom/Optus ballot) and the second plaintiff was the agency that had been chosen for her to work with, and the allegations in the letter related to that agency. So, naturally, she said, she felt a degree of concern as to the validity of what was written there. 43 She reported the letter to her senior officer, Colin Harvey and discussed the matter with him. She also discussed it with Therese Fedor, who was the Marketing Manager for the multicultural market, dealing with different types of publications and documents. 44 After she had read the letter, Mr Skalkos rang Ms Hall simply saying he wanted to do business with Telstra. She said that she couldn't do anything about that. 45 Evidence was given also by Mr Harvey. He read the letter and had discussions with Margaret Fairman, another officer in Telecom who was interested in the matter raised in the letter. 46 The issue will arise in the proceedings when the matter is finally put before the jury as to whether, in fact, there was a publication by the defendants to Telecom. 47 The plaintiffs will rely in part, it has been indicated so far as this letter is concerned, on Ex W, the copy of the letter identified by Ms Hall, which has a transmission note dated 23 July 1993 from " C and G Sales T Skalkos". However, interestingly, there is no evidence as to the identification of the addressee by reference to the fax number of the addressee on the document. 48 In his submissions, Mr Littlemore referred me to the judgment of Badgery-Parker J in the matter of New South Wales Aboriginal Land Council v Perkins. Unreported, CLD11262 of 1991, 15 August 1997. His Honour allowed a letter published to the Premier of New South Wales and the alleged defamation flowing from that letter to be the subject of a s.13 defence. 49 I have read the judgment of Badgery-Parker J in relation to that aspect, and given it such weight, if I may respectfully say so, as I feel in the circumstances of this particular case it bears. 50 In his submissions Mr Littlemore stressed the limited publication of the letter within the Prime Minister's Office and, to the extent that it was published to Ms de Salis, she gave no credence to it, and destroyed it. 51 He submitted that it was not "a grapevine case" and that in considering publication within the meaning of s13, the Court is necessarily limited to what the plaintiffs have proved in that regard. 52 Then, on the assumption that the issue of the publication to Telecom will be established in favour of the plaintiffs, he again focused upon what he contends was the restricted publication of a different document to three people in a section of Telecom. He submitted that the only publication at Telecom was to Mr Harvey and Ms Hall and Ms Mitchell. 53 Mr Littlemore submitted that it was only necessary for the defendants to make out the s13 defence as being legally tenable, and that was relatively easy in the circumstances where the publication was to a small number of persons, as it was to Telecom and the Prime Minister's office, all of such persons being acquainted with the plaintiffs and well able to make their own judgments as to the validity of the material in the letter. 54 He stressed that this is a defence to the publication, not strictly a defence to the imputations. He referred to the necessity to take into consideration the nature of the published material, the manner in which it was published, to whom it was published, and the place of publication. 55 The "circumstances of the publication", he contended must be a reference to the actual publication not the intended publication. 56 The matter one could not take in consideration, he submitted, in the light of the authorities, is any evidence of harm, in fact, suffered by the plaintiffs as a result of the publications. 57 He submitted that s140 and s142 of the Evidence Act, 1995, established a Brigenshaw type standard. I do not have any difficulties, if I may so, with respect to that submission. 58 I do not propose to set out the entirety of the legal arguments that were put to me by Mr Littlemore, all of which have been considered, and are set out in the transcript. 59 The question is: what is the test posed by s13? 60 I have referred to the test, if I could use that expression, identified by Mahoney JA in King and Mergen Holdings, namely, the defendants must negative not merely that there would be great or substantial harm but that there be "harm" at all. Although, as his Honour stated, the significance of what is required in this regard may require consideration in subsequent cases. 61 Another way of putting it, as I read the cases, is whether the circumstances of the publication were such as to activate or be capable of activating s13. Of course, in considering that question, one must look at the entirety of the evidence as it exists and the specific matters relied upon by the defendants. 62 Reluctant as one must necessarily be to express views on the evidence, the evidence as it stands, and the authorities as I read them, lead inexorably, in my view, to the conclusion that s13 is not available to the defendants in this case, and in expressing that view, I take into account the extent of the actual publication. 63 The publication, firstly to the Prime Minister's office, the highest political office within the country and concerned with ethnic matters and the ethnic media, could only be considered, in my view, as a matter of much significance and propensity to cause harm to the plaintiffs. 64 In no sense at all, in my view, could that publication fall within the concept of triviality, or the triviality defence as it is sometimes called, as explained in the cases. 65 Thus, in my view, in relation to the first publication, I have no alternative but to take away the defence under s13 in relation to all imputations. There is no satisfactory way in which a different conclusion could be reached in relation to any of them. I turn then to the Novosti publication. 66 The first plaintiff is not named in the Novosti publication, only the second defendant. The same, of course, applies to the letter to the Prime Minister. The evidence would seem to indicate that there was a potential readership of conservatively 14,000 members of the Australian/Serbian community of Novosti. 67 There is evidence from one, George Jaksic, (at page 465 and following), who has been known to the first plaintiff for some 20 years. Their relationship flowed from various publishing roles, Mr Jaksic being by occupation a publisher. 68 He was born in Australia but speaks the Serbian language fluently. 69 He gave evidence, (page 467), that on the Sunday afternoon of 1 August 1993 his late father walked downstairs in his house in Annandale, and said: "'George, I have got something interesting to show you. You are dealing with criminals again'. I said 'What the hell are you talking about, Dad' and he showed me the paper which is an edition of Novosti and turned to page 13 where I was made aware of the open letter to Paul Keating and I stopped and read that". 70 He read it, of course, in the Serbian language text. He then said:

"Then there was a level of discussion with my father. He said, 'That is Joseph'. I said, 'That's right'. We say in Serbian 'Yosip', because he knows I had a very strong relationship with Joseph Assaf". 71 Then there was some discussion about the publication. 72 A question is obviously going to arise for resolution by the jury as to that phrase, "That is Joseph". It is clear from submissions, that Mr Littlemore will be putting to the jury that that phrase was expressed by Mr Jaksic in an interrogative tone and, accordingly, there should have been, to give effect to that, a question mark after "Joseph" in the transcript. That is not to be a criticism of the Court Reporting Branch, but Mr Littlemore's contention of what the tone of the remark was. 73 Of course, this is an important passage because it identifies two persons, Mr Jaksic, the witness, and his late father, Mr Jaksic Snr, nominating Mr Assaf as being identifiable in the publication. 74 There is no other evidence directly, or indirectly, to the effect that a reader identified the first plaintiff as being related to or the person controlling ETCOM. There is, however, evidence that in certain circles the publication was discussed. 75 Mr Littlemore has fairly conceded, if I may say so, that the s13 defence would not be available against the second plaintiff, no doubt in reliance upon the authorities to the effect that a s13 defence would only, in exceptional circumstances, be available where there is publication in the mass media. I think that Novosti could be included within that category. 76 Of course, if the jury conclude in answer to the relevant question, that the first plaintiff is not identifiable in the Novosti article, then the first plaintiff's claim, with regard to that publication, falls to the ground and it will not be necessary in that event for the jury to consider a s13 defence. 77 However, be that as it may, I must deal with this application. There is much evidence that, even up to the date of the publication of the Novosti article, Mr Assaf was, through the interposition of his company as well as personally, actively involved as a community leader in the ethnic community, if I could use that expression. He would have been well known in the ethnic media. 78 Readers of Novosti would be interested, one would think, with the assertion made by the defendants to the Prime Minister that the cost of ethnic newspapers is being unreasonably increased by reason of the, unnecessary, if I may use that somewhat neutral term, activity of middlemen, such as Ethnic Communications Pty Ltd. 79 The publication must, one would think, be regarded for this reason as a serious matter. 80 Obviously, Mr Jaksic Snr took the view that it was a serious matter. Readers would be interested to know more about it. Some of them would, one could reasonably infer, have some knowledge of Mr Assaf and his connection with Ethnic Communications and the ethnic media. 81 If the jury is of the view that there was an identification of Mr Assaf in the Novosti article then, in my view, the s13 would not run, because of the width of the publication, its seriousness and the like. 82 Thus, in my view, the defence under s13 is not available in relation to the second publication with regard to both plaintiffs in relation to all imputations. The defence will be taken away from the jury with regard to the second publication. I so rule.

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