Marsden v Amalgamated Television Services Pty Limited

[1999] NSWSC 1300

CITATION:

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1300

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20223 of 1995; 20592 of 1996

HEARING DATE(S):

14 December 1999

JUDGMENT DATE:

14 December 1999

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	M Hall (Plaintiff) W H Nicholas Q.C. J S Wheelhouse (Defendant)
SOLICITORS:	Marsdens (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	On admissibility of evidence - T3306
DECISION:	See paragraph 4

- 3 -

DLJT: 70
(Ex Tempore - Revised)

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

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE

TUESDAY 14 DECEMBER 1999

JOHN MARSDEN
(Plaintiff)

v

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

Judgment (On admissibility of evidence - T3306)

1    HIS HONOUR: It is contended in relation to documents 7 to 13 of the plaintiff's bundle of tender documents that they are relevant to the plaintiff's claim for aggravated compensatory damages. As I understand it, none of the documents is relied upon as proof of the truth of its contents. It is contended that once I accept that the documents are rationally capable of going to the probability of the existence of the media reference to the programs telecast by the defendants, everything else flows from that. Thus they become both relevant and admissible by reason in particular of the reference in Exhibit H, the report of Dr Toohey of 6 May, 1997 to a record of a statement made by the plaintiff to him that publicity of the allegations in the programs was causing him distress. I use that word to cover what the plaintiff is asserting about that area. 2    Insofar as there has been introduced into the arguments in support of this tender some notion of “debate” in the media, I am simply incapable of identifying what that is about in these documents, given that no reliance is placed upon the truth of their contents. More critically, there is no evidence before me of the plaintiff's awareness of these particular publications. There is no evidence before me of the doctor having taking into account these particular publications. They did not rear their head during the course of the cross-examination of Dr Toohey. There is no evidence of what simply can be put as a requisite connection between anything the defendant, Channel 7, did and the coming into existence of these documents, that is in terms of its conduct in relation to these documents, let alone any evidence on which one could rationally conclude that that conduct bears the one or more of the three usual characteristics for the purposes of aggravated damages. 3    It is all the more difficult, to go back to the threshold question which I gather to have been framed on the basis of the provisions of s 55 of the Evidence Act, to come to a view as to whether the material could rationally affect, directly or indirectly, the assessment of the probability of the existence of the fact in issue, when the evidence in the plaintiff's case, it must be remembered, is made up, and I am making no findings about it, of both the evidence-in-chief of the witnesses and the evidence and answers in cross-examination. This is particularly so in relation to the medical evidence and the subject of “stressors”. 4    The reasons I reject this tender is the absence of evidence of the plaintiff's awareness of these documents, of the doctor's awareness of these documents, of any connection with the defendant, and of anything about the connection with any “conduct” and the which could be characterised in the usual way for the purpose of aggravated damages.

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Last Modified: 06/26/2000