Nikolopoulos and 10 Ors v Greek Herald Pty Ltd

[2000] NSWSC 1121

CITATION:	Nikolopoulos & 10 Ors v Greek Herald Pty Ltd & Anor [2000] NSWSC 1121
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20071/99
HEARING DATE(S):	30 November 2000
JUDGMENT DATE:	30 November 2000
PARTIES :	George Nikolopoulos(1st Plt) 10 ors Greek Herald Pty Limited (1st Def)
JUDGMENT OF:	Levine J

COUNSEL :	C Evatt (Plts) T Molomby (Defs)
SOLICITORS:	Brock Partners (Pltfs) T Lazaropoulos (Defs)
CATCHWORDS:	Cross claim - no case pleaded - struck out - structure of s 7A trial where cross claim
DECISION:	See para 8

DLJ: 4
(Ex Tempore - Revised)
[2000] NSWSC 1121

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

No.20071/99

JUSTICE DAVID LEVINE

THURSDAY, 30 NOVEMBER 2000

George NIKOLOPOULOS & 10 ORS
(Plaintiff)

v

GREEK HERALD PTY LTD & ANOR

(Defendant)

JUDGMENT (Cross claim - no case pleaded - struck out - structure of s 7A trial where cross claim)

1 HIS HONOUR: On 5 July this year, I delivered a judgment [2000] NSWSC 617 and made certain orders, especially in respect of the then existing cross-claim. Purportedly in consequence of those orders, an amended cross-claim was filed on 15 September this year.

2    As far as the cross defendants are concerned - except the first - it is contended that insofar as the existing amended cross-claim purports to plead a case against the second to eleventh cross defendants, it fails to do so.

3    That amended cross-claim particularises in paragraphs 4 (b) and (c) and 8 (b) and (c), the basis of liability in the second to the eleventh cross defendants, for publication of the matters complained of.

4    In each of the matters complained of in the cross-claim, there appears in the original publication in "Kosmos", in the Greek language, something that looks like the logo or badge of the Canterbury Marrickville Olympic Soccer Football Club.

5    It is the fact of the appearance of that logo in two different forms that is relied on by the cross-claimants as indicative of liability in the second to the eleventh cross defendants, by reason of those cross defendants being directors of the club. Secondly, the peculiar status that a logo can enjoy as an item of intellectual property, its use by the publisher of the newspaper, it is argued, can be inferred by way of consent or some form of licence.

6    If that which was published in the two articles in "Kosmos" in fact was established as proved to be a logo of the club, and if in fact that logo does constitute an item of property, the use of which can only be understood as having been by consent, then that is not a case that is particularised.

7    What should have been particularised, if capable of particularisation, are the facts and matters that would establish a basis for the drawing of an inference that the directors of the club authorised the use by the newspaper of the logo. Authorisation in those circumstances, based upon some other set of facts presumably, could give rise to proof directly, or by way of inference, of liability for publication of any defamatory material in the article which happens to be accompanied by the logo.

8    No such case is made in the sense of being particularised. The opportunity for doing so arose on 5 July, and in response to a letter dated 12 October from the cross-defendant's solicitors. I am not persuaded that anything in the pleadings establishes, or could establish by evidence, liability in the second to the eleventh cross defendants, and the cross-claim in whatever form is struck out as against them.

9    That presently leaves, therefore, a cross action - to use a more neutral term - by the cross-claimant Mr Skalkos, against Mr Nikolopoulos. The cross-claimant, Mr Skalkos, desires to join as cross defendants a Mr Skouloudis, the publisher and chief editor of the newspaper, which is published by a corporation, Skouloudis Group Pty Ltd, also sought to be joined.

10    Nothing seriously could be advanced by way of prejudice, if leave to join was granted in the context of the anticipated s 7A trial. I understand from Mr Molomby that the additional proposed cross defendants are aware of the steps his client is now taking to seek joinder.

11    I grant leave to the cross-claimant to add, as a second cross-defendant and third cross-defendant, Mr Skouloudis, and Skouloudis Group Pty Ltd as cross defendants. The further amended cross-claim is to be served within seven days of today.

12    A further matter has arisen which in a sense is novel, as I understand it, in that the plaintiff's action against the defendants has been set down for a s 7A trial to commence on 31 January 2001. The action constituted by the plaintiff's claim and the defence and the cross-claim, in the usual way, is viewed as one action.

13    An interesting point has arisen here as to the management of the s 7A trial, which applies both to the plaintiff's action and to the cross-claim. It has not been argued, of course, that s7A does not apply to a cross-claim. Indeed in my view it could not, because it is, when looked at discretely, an action for defamation. It gives rise to the same issues to be determined by the jury as in a plaintiff's case.

14    There are to be proved by evidence, at present, matters of identification in the plaintiff's case, and possibly there may be issues in the plaintiff's case on translation. In the cross-claim, issues of identification arise. I do not know whether there is an issue as to translation.

15    There is, however, no coincidence between the parties in the plaintiff's action and the parties in the cross-claim, in the sense that the cross defendants will be adding to the action two entities hitherto strangers, namely Mr Skouloudis and the company. The only persons in common are Mr Skalkos and Mr George Nikolopoulos.

16    I was initially attracted to the proposition that the same jury should resolve the issue reserved to it both in the plaintiff's action and in the cross-claim. I am, however, reluctant to make any direction to that effect at this stage, by reason of factual issues to be determined, and the lack of coincidence between the parties to which I have referred.

17    If between now and 31 January 2001 the factual issues can be resolved or reduced in their complexity, it may well be that the trial judge will be in a better position to entertain any application that the same jury determine the matters reserved to it in the plaintiff's action, as the matters reserved to that tribunal in the cross-claim.

18    All I will do at this stage is express my view that if practicable, and not causative of any injustice, that course could be followed, it should be. Otherwise, it will be a matter for the trial judge to determine whether there should be a separate jury, when there should be a separate jury and the like.

19    It may well be that the foreshadowed problem as to orders of address could be overcome by the jury determining first the plaintiff's action, and then starting again by determining the cross-claim. To be quite candid, at this stage the problem presently does not lend itself to easy solution.

20    The cross-claimant is to pay the costs of the second to the eleventh cross defendants.

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Last Modified: 12/20/2000