Amalgamated Television Services v Marsden [1999] NSWCA 319
FILE NUMBER(S):
CA 40502/99
HEARING DATE(S):
18 August 1999
JUDGMENT DATE:
31 August 1999
PARTIES :
Amalgamated Television Services Pty Ltd v John Marsden
JUDGMENT OF:
Mason P; Meagher JA; Handley JA
LOWER COURT JURISDICTION:
Supreme Court
LOWER COURT FILE NUMBER(S) :
CLD 20223/95 CLD 20592/96
LOWER COURT JUDICIAL OFFICER:
Levine J
COUNSEL:
C: WH Nicholas QC; JS Wheelhouse SC O: G O'L Reynolds SC; RG McHugh
SOLICITORS:
C: Mallesons Stephen Jaques, Sydney O: Phillips Fox, Sydney
CATCHWORDS:
Reasons for orders previously made - Leave to appeal subject to conditions - Conditional stay - Requirement of solicitor's undertaking to repay moneys if appeal successful
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40502/99 CLD 20223/95 CLD 20592/96
MASON P MEAGHER JA HANDLEY JA
Tuesday, 31 August 1999
AMALGAMATED TELEVISION SERVICES PTY LTD v John MARSDEN
JUDGMENT
1 THE COURT: At the conclusion of a lengthy leave application we made the following orders:
1 Subject to orders 2 and 3, grant leave to appeal.
2 Stay execution of orders 1-3 made by Levine J on 28 June 1999 until further order or disposal of the appeal.
3 Subject to the opponent’s solicitor’s undertaking to repay the money if the Court of Appeal should set aside the said orders of Levine J, order the claimant to pay $240,000 on account of the opponent’s entitlement to costs under those orders, such payment to be amenable to an order for restitution in the event that those orders are set aside. Payment is to be made within 14 days.
4 Subject to further order, direct that the hearing of the appeal stand over until after the conclusion of the trial.
2 The claimant’s (defendant’s) application to amend particulars of justification of defamation spanned thirty-eight days. Levine J’s 199 page judgment of 23 June 1999 sets out the extent and intensity of the issues raised by the opponent (plaintiff) in opposition (Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 619). The claimant was successful. 3 A major, discrete, but related dispute related to the opponent’s motion to set aside the claimant’s subpoena to the NSW Police Service. Serious allegations of unlawful and/or dishonourable conduct were raised against police officers and the claimant’s solicitor. Several days were spent cross-examining these people. The “guesstimates” of counsel were that this issue took between twenty-five and sixty per cent of the combined hearing. This motion was dismissed by his Honour. 4 For reasons given in a separate judgment delivered on 28 June 1999, the claimant was ordered to pay all of the costs of the two motions, despite its success in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Amalgamated Television Services v Marsden
Sign in free to access the full text
Details
AGLC
Amalgamated Television Services v Marsden [1999] NSWCA 319
Case
[1999] NSWCA 319
Decision Date
CaseChat Overview and Summary
Amalgamated Television Services Pty Ltd (the applicant) sought leave to appeal from an order made by the primary judge. The respondent, Marsden, had obtained an interlocutory injunction against the applicant. The applicant sought to appeal this injunction, but the court considered whether to grant leave to appeal and, if so, on what conditions.
The primary legal issue before the Court of Appeal was whether to grant the applicant leave to appeal the interlocutory injunction. A further issue arose concerning the conditions upon which such leave might be granted, specifically whether a stay of the injunction should be ordered and, if so, what undertakings would be required from the applicant to secure the respondent's position should the appeal be successful.
The Court of Appeal, comprising Mason P, Meagher and Handley JJA, considered the principles governing the grant of leave to appeal interlocutory decisions. The court determined that leave to appeal should be granted, but it would be subject to certain conditions. These conditions were designed to protect the respondent's interests in the event that the appeal succeeded.
Leave to appeal was granted to the applicant, but it was made conditional upon the applicant providing an undertaking from its solicitor to repay any moneys paid by the applicant to the respondent pursuant to the interlocutory injunction, should the appeal be successful.