Harkianakis v Skalkos & Ors [1999] NSWSC 505

Harkianakis v Skalkos & Ors [1999] NSWSC 505

The amendments seeking to introduce a defence based on an alleged constitutional right to freedom of discussion of religious matters are futile in law because s 116 of the Constitution does not confer such a right, and Lange's implied freedom concerns only political and governmental matters. The interstate defences should not be pleaded since multi-jurisdictional publications are only relevant to damages, not as separate causes of action, and questions of law are not appropriate for referral to the Court of Appeal at this interlocutory stage.

Jurisdiction
Australia
Judgment Date
31 May 1999
Procedural Posture
Defamation / Interlocutory Application Concerning Amendment of Pleadings and Referral of Questions to Court of Appeal
Outcome
Application to file Third Amended Defence dismissed; time extended for filing Second Further Amended Defence and Reply; Notice of Motion dismissed; costs awarded to plaintiff.
Legal Topics
['freedom of Speech' 'qualified Privilege' 'amendment of Pleadings' 'interlocutory Applications' 'defamation—identification of Plaintiff']
['defamation' 'constitutional Law' 'civil Procedure'] ['freedom of Speech' 'qualified Privilege' 'amendment of Pleadings' 'interlocutory Applications' 'defamation—identification of Plaintiff']

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Procedural Posture

Defamation / Interlocutory Application Concerning Amendment of Pleadings and Referral of Questions to Court of Appeal

Legal Issues

  1. 1 ['Whether s 116 of the Constitution or any implied freedom provides a defence to defamation concerning religious issues' 'Whether amendments to pleadings to include such defence should be allowed' 'Whether and how interstate defences should be pleaded when multiple state/territory publications are only relevant to damages' 'Whether questions of law should be referred to the Court of Appeal at this stage' 'Whether a person not named but identified by reference to an organisation can maintain a defamation action']

Ratio Decidendi

The amendments seeking to introduce a defence based on an alleged constitutional right to freedom of discussion of religious matters are futile in law because s 116 of the Constitution does not confer such a right, and Lange's implied freedom concerns only political and governmental matters. The interstate defences should not be pleaded since multi-jurisdictional publications are only relevant to damages, not as separate causes of action, and questions of law are not appropriate for referral to the Court of Appeal at this interlocutory stage.

Court Disposition

Application to file Third Amended Defence dismissed; time extended for filing Second Further Amended Defence and Reply; Notice of Motion dismissed; costs awarded to plaintiff.

Orders

  • ['Application to file Third Amended Defence in accordance with draft annexed to affidavit of Vasilios Kalantzis sworn 25 September 1998 dismissed.' 'Extend time for filing Second Further Amended Defence in accordance with draft initialled on 17 October 1997 to Friday 11 June 1999.' 'Extend time for filing any...