Marsden v Amalgamated Television Services Pty Limited

[2000] NSWSC 671

CITATION:

Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 671

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 20223 of 1995; 20592 of 1996

HEARING DATE(S):

11 July 2000

JUDGMENT DATE:

11 July 2000

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J at 1

COUNSEL :	M R Hall (Plaintiff) W H Nicholas Q.C. J S Wheelhouse (Defendant)
SOLICITORS:	Phillips Fox (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	Admissibility - plaintiff’s case in reply - evindence in reply to defence case on truth - evidence on matters in defeasance of privilege defence - T8223
DECISION:	See paragraph 14

DLJT: 192
(Ex Tempore - Revised)
[2000] NSWSC 671

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

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE

TUESDAY 11 JULY 2000

JOHN MARSDEN
(Plaintiff)

v

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


JUDGMENT (Admissibility - plaintiff’s case in reply - evidence in reply to defence case on truth - evidence on matters in defeasance of privilege defence - T8223)

1    HIS HONOUR: Mr Thompson has been called by the plaintiff in his case in reply. His evidence in general terms is connected with the component of this trial involving Mr Kinchela. 2    Mr Kinchela at T3917.35 was asked:

"Q. Now do you recall an occasion when you - when you were at the El Alamein Fountain when you were picked up by Mr John Marsden?
A. Yeah, I do."

3    At the least, implicit in the evidence constituted by the answer to that question is the assertion that as far as Mr Kinchela was concerned, it was the plaintiff he met, there was no question of identification. 4    At T3939.40 to T3940.21 during cross-examination, Mr Kinchela gave the following evidence:

“Q. Do you understand the question? Did you go to the Royal Oaks or the Oak, whatever it is called, at Double Bay and there met Mr La Fontaine in January or February of 1995?
A. Yeah.
Q. Was Mr Quail also there?
A. Yeah.
Q. Was Mr Robert Thompson there?
A. Yeah.
Q. Was Mr Quail buying the drinks?
A. I don’t recollect.
Q. Did he buy you a Bourbon, several drinks of Bourbon?
A. May have did.
Q. Pardon?
A. He may have.
Q. Were you there for about three hours?
A. I don’t recall how long I was at the pub with them.
Q. Beg your pardon?
A. I don’t recall how long we were at the pub.
Q. A long time?
A. I don’t recall how long we were at the pub.
Q. Quite a long time?
A. Well, I didn’t get pissed, so it couldn’t have been too long.
Q. And Mr Quail and Mr La Fontaine were encouraging you to go on the Channel 7 programme about Mr Marsden, weren’t they?
A. No, they weren’t.
Q. And you said, amongst other things, ‘I’m not too sure it was Marsden. I’m not sure’, didn’t you?
A. No, I didn’t”.

5    It will be seen from that extract that it was put to Mr Kinchela that a meeting occurred in January or February of 1995 with Mr Quail, Mr La Fontaine and Mr Thompson. Mr Kinchela did not dispute that. It was put to Mr Kinchela that he had made the statement referred to in the last question and answer, namely, "I'm not too sure it was Mr Marsden, I'm not too sure", which he denied. That denial is repeated at T3941.17. That body of evidence points to the first basis of asserted admissibility of the proposed testimony of Mr Thompson and the first basis for objection to it. 6 I am satisfied of the following matters: first, that the evidence-in-chief is a statement as to identity. Second, that the cross-examiner complied with s 43(2)(a) and (b) of the Evidence Act 1995 (NSW) in the extract referred to. Third, that there has been the denial by Mr Kinchela of the prior statements. Fourth, that the plaintiff can call evidence as to the prior inconsistent statement from someone of course other than Mr Kinchela, s 43(2) having been complied with, and can call that evidence in accordance with s 106(c). Fifth, I am further satisfied that in his evidence-in-chief thus far, Mr Thompson at T8214.5 to 20 has given some evidence in respect of the relevant period, notwithstanding a variation to it at T8214.30. That variation may well be a matter for cross-examination and weight in due course, but the first basis of admissibility is established. 7    The second basis, and as far as I am aware this is the first occasion it has arisen, relates to the defence of privilege and some evidence of Mr Quail. 8    At T5810, particularly at point 45, Mr Quail gave evidence that the first occasion on which he met Mr Kinchela was 14 February 1995. At T5812.41, Mr Quail gave evidence that there was an occasion in which he and Mr Kinchela and Mr La Fontaine had met in a hotel, but that was after the programme went to air, namely, 13 March 1995. That evidence was given by Mr Quail after, as recorded on the same page of the transcript, he denied that there had been any meeting in either January or February 1995 at the Royal Oak involving Mr Thompson, Mr La Fontaine and Mr Kinchela. 9    At T5981.37, Mr Barker cross-examined Mr Quail suggesting to him that the meeting occurred in January or February of 1995 at the Royal Oak. Mr Quail was firm in his denials. The relevant cross-examination continues to T5982.15. 10    At T5817 to T5822.25, there is recorded the evidence given by Mr Quail in chief to Mr Nicholas where Mr Quail deposes as to the view and the basis for the view he held as to the reliability and credibility of Mr Kinchela in relation to what Mr Kinchela was saying concerning the activities with Mr Marsden. His view was that Mr Kinchela was telling the truth. 11    At T6024.5 during cross-examination by Mr Barker, Mr Quail repeated his belief in the truth of what Mr Kinchela had said. At T6033.31 it was put to Mr Quail in cross-examination, towards its conclusion:

"Q. You really have no basis for believing, I suggest, that any of the allegations you broadcast were true; what do you say to that?
A. I say that it is not true.

Q. I suggest that you had an insufficient basis for forming a belief; do you agree with that?
A. No.

Q. At best I suggest you were indifferent to whether the allegations were true or not; do you agree with that?
A. I definitely do not agree with that."

12    I have referred to that whole body of evidence in the context of the second basis for admissibility, namely, that the plaintiff in his case in reply is entitled to lead evidence in defeasance of the defence case on privilege. The body of evidence to which I have referred in this context goes to Mr Quail's belief in the truth of what Mr Kinchela said and his reasons for it as elucidated, particularly in examination-in-chief. 13    The proposed evidence from Mr Thompson is relevant to the issue of belief in the truth, the basis for it, the reasonableness of the defendant's conduct as asserted expressly by Mr Quail in terms of the belief he held and the basis for it. I am satisfied that the last part of the cross-examination of Mr Quail by Mr Barker sufficiently puts to that witness the matters in issue to which the proposed evidence relates. 14    The evidence proposed to be called, therefore, is admissible in reply to the defendant's case on truth by the operation of section 106(c) in the circumstances to which I have referred and is admissible as evidence led by the plaintiff in reply to the defence case on privilege in the circumstances to which I have referred.

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Last Modified: 09/26/2000