Marsden v Amalgamated Television Services Pty Limited

[2000] NSWSC 86

CITATION:

Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 86

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 20223 of 1995; 20592 of 1996

HEARING DATE(S):

24 February 2000

JUDGMENT DATE:

24 February 2000

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	I Barker Q.C. M Hall (Plaintiff) R Stitt Q.C. J S Wheelhouse (Defendant)
SOLICITORS:	Phillips Fox (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	On objection to a question asked by Mr Barker during cross-examination of witness Gulley - T4267
DECISION:	See paragraph 7

DLJT: 99
(Ex Tempore - Revised)
[2000] NSWSC 86

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

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE

THURSDAY 24 FEBRUARY 2000

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
ACN 000 145 246
(Defendant)

JUDGMENT (On objection to a question asked by Mr Barker during cross-examination of witness Gulley - T4267)

1    HIS HONOUR: The question has been asked of Mr Gulley, the nub of which is whether in his opinion it was improper, in the sense of professionally improper, for the plaintiff to have Mr Pearce execute the statutory declaration recanting, to put it shortly, previous allegations. 2    It is important to bear in mind that that question is asked on the basis that the witness has been required to assume at least six or seven antecedent facts. Mr Gulley is giving evidence, as I presently perceive it, on that component of the defendant's case on justification particularised in relation to Mr Pearce on 25 January this year in the document headed "Particulars of Truth (Admissions)". It is the defendant's position in this case that the found imputations are substantially true, the defendant's contextual imputations are substantially true, in respect of which position evidence has been and will be called. 3    The evidence falls into two very general categories, which I will describe as the first category, being evidence as to events said to have taken place between an accuser/complainant and the plaintiff. The second category of evidence relates to things done by the plaintiff or on his behalf which, if established on the balance of probabilities, could rationally be understood to be admissions against the plaintiff's interest. It is in relation to the last category, as I have said, that Mr Gulley is giving his present testimony. 4    The ultimate conclusion will be one, of course, in the first instance of fact; and subject to what that finding is, the application of any relevant law. 5    The objective facts in relation to the defendant's case in the second category relating to Mr Pearce has been the subject of evidence yesterday and cross-examination this morning. The view to which I've come is this. That the objective facts will lend themselves to submissions by both sides focused upon the establishment of that second category or the failure to establish it. 6    Each party, particularly yesterday and today, have made statements in court concerned with its side's position. Whatever the parties say by way of advancement of their client's cause is, of course, recorded, but will in the end be subject to evidence. In other words, as the trial judge, whilst I am informed, it does not mean I am necessarily impressed by such statements, whether they be serious and advised presentations of the client's case on a particular issue, or no more than rhetoric. 7    Whilst every respect must be afforded to any opinion expressed by Mr Gulley, and I do not understand the defendant to be challenging this, this is a case where ultimately it will decided by me only on the evidence in the light of the submissions. I disallow the question.

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Last Modified: 09/25/2000