Marsden v Amalgamated Television Services Pty Limited

[1999] NSWSC 1301

CITATION:

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1301

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:	Admissibility of documents numbered 14, 16, 18, 19, 20 & 21 in tendered documents - T3317
DECISION:	See paragraph 15

- 4 -

DLJT: 71
(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 (Admissibility of documents numbered 14, 16, 18, 19, 20 and 21 in tendered documents - T3317)

1    HIS HONOUR: The next category of documents tendered on behalf of the plaintiff is made up of documents 14, 16, 18, 19, 20 and 21, in the list of tendered documents. 2    The documents are tendered as evidence of “hostile reaction” to the plaintiff based upon observations and said to be admissible by reference there to what Justice Hunt said in Hughes' case. A lot of evidence has been permitted to be given, founded on Hughes' case, in which one element, “contemporaneity”, no doubt will be the subject of submissions in due course. 3    There are three essential components to what I will call the admissibility of Hughes' evidence: One, it must be evidence of some hostile reaction to the plaintiff; two, it must be evidence of a hostile reaction founded upon the relevant publication sued upon and, three, it must be evidence of hostile reaction to the plaintiff founded on that publication bearing some contemporaneity with it. 4    The ambit of evidence hitherto admitted has been, for present purposes, of varying and various import in relation to each of those three components and will, no doubt in the end, be the subject of submissions. 5    Bearing that in mind, I turn to document 14, which is a document dated January 19th, 1998; under two years after publication of the second programme. It has however, a reference in it to Ms Wendt. It is addressed to the plaintiff, who has sued Channel 7 in relation to the programme “Witness”, compered by Ms Wendt. Attached to it is a newspaper cutting which appears to be undated and which relates to proceedings in the Industrial Court involving Ms Wendt. 6    I do not propose to take time going through all of these document by date. I have what I would describe as reservations about document 14, but not to the point where I am persuaded that there exists competing conjectures, or competing inferences, to the exclusion of one that might be logically available and probative of the plaintiff's case. I will admit document 14. 7    Document 16, I am prepared to accept on the basis of the material I have in relation to it; that it came into existence some time in or before August 1997. That is based on my reading of the postage franking mark on the envelope that accompanied it. Conformably with the basis on which I have admitted oral evidence of this kind, I will admit document 16. 8    I decline to admit document 17, as there is simply nothing in it that persuades me as to a date, which is a fundamental starting point. 9    Document 17 will be marked for identification 46. 10    Document 18 is a curious document. I have a photocopy of what is clearly a collage made up of various newspaper cuttings, one of which bears the date 16 May 1996, nine days after the publication of the second matter complained of. That document simply exists. It exists only in the sense of it having been compiled. There is no other material that would indicate it to have been compiled, by whoever did it, as a subjective reaction, arising out of the second programme to which I am prepared to concede there is some evidence that part of it was closely related in date. Otherwise it is just up in the air, and it will be part of the documents marked for identification 46. 11    Document 19 is a letter addressed to Justice Wood and dated 28 May 1996, within some weeks of the publication of the second programme. By its terms, it indicates that a copy was sent to Mr Marsden, but as Mr Hall quite rightly puts it, that is not necessarily to the point. Evidence of the adverse reaction of X to the program maybe given by Y without any evidence of that adverse reaction made known to the plaintiff, in circumstances where it is not relied upon in aggravation of damages or of evidencing injury to his feelings, neither basis being put as being the basis for the admissibility of this material. 12    My view of this one is that it falls within the category of an excluding inference, and by that I mean one, available to the exclusion of an available inference to which Mr Nicholas referred by reference to Dixon J in Jones v Dunkel. It will form part of MFI 46. 13    I propose to admit document number 21 on the same basis that I have admitted other evidence. It will be a matter for argument as to what weight can be attached to it. 14    Thus, the documents out of the bundle that I have admitted, will be Exhibit O. 15    The documents I have not admitted will all be bundled together and be marked for identification 46.

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Last Modified: 06/26/2000