Assaf v Skalkos [1999] NSWSC 1329

Assaf v Skalkos [1999] NSWSC 1329

MFI 15 was rejected because the letter appeared to speak on behalf of the company as a whole rather than solely as a representation by Mr Mok, and the evidence did not establish that the representation fell within s69(2) of the Evidence Act 1995. Alternatively, even if s69(2) applied, the letter would be rejected under s135(a) because, with no evidence before the jury about the availability or non-availability of Mr Mok and no opportunity for the plaintiffs to test the truth of the letter except through Mr Assaf's denials, its admission could operate unfairly to the prejudice of the plaintiffs.

Jurisdiction
Australia
Judgment Date
01 December 1999
Procedural Posture
Defamation / Ex Tempore Ruling on Admissibility of MFI 15 During Defendants' Case
Outcome
MFI 15 rejected.
Legal Topics
['business Records Exception to Hearsay' 'admissibility of Documentary Evidence' 'unfair Prejudice' 'justification Defence']
['defamation' 'evidence'] ['business Records Exception to Hearsay' 'admissibility of Documentary Evidence' 'unfair Prejudice' 'justification Defence']

Case Brief

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Procedural Posture

Defamation / Ex Tempore Ruling on Admissibility of MFI 15 During Defendants' Case

Legal Issues

  1. 1 ['Whether the letter marked MFI 15 was admissible as a business record under s69(2) of the Evidence Act 1995 in the absence of evidence from its author.' 'Whether, if admissible under s69(2), the letter should nevertheless be rejected under s135(a) of the Evidence Act 1995 as unfairly prejudicial.']

Ratio Decidendi

MFI 15 was rejected because the letter appeared to speak on behalf of the company as a whole rather than solely as a representation by Mr Mok, and the evidence did not establish that the representation fell within s69(2) of the Evidence Act 1995. Alternatively, even if s69(2) applied, the letter would be rejected under s135(a) because, with no evidence before the jury about the availability or non-availability of Mr Mok and no opportunity for the plaintiffs to test the truth of the letter except through Mr Assaf's denials, its admission could operate unfairly to the prejudice of the plaintiffs.

Court Disposition

MFI 15 rejected.

Orders

  • ['MFI 15 is rejected.']