Marsden v Amalgamated Television Services Pty Limited

[1999] NSWSC 1188

CITATION:

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1188

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20223 of 1995; 20592 of 1996

HEARING DATE(S):

2 December 1999

JUDGMENT DATE:

2 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:	T2878 - admissibility - evidence of particular impact of imputations
CASES CITED:	Readers Digest Services Pty Limited & Anor v Lamb (1981-2) 150 CLR 500
DECISION:	See paragraph 20

DLJT: 65
(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

THURSDAY 2 DECEMBER 1999

JOHN MARSDEN
(Plaintiff)

v

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


JUDGMENT ( T2878 - admissibility - evidence of particular impact of imputations )

1    HIS HONOUR: Mr Heads is presently giving evidence. He is a sports writer and journalist who, for present purposes, can be taken as having had substantial experience with respect to the sport of rugby league. 2    He has given evidence to the effect that as at March 1995 the plaintiff had a good reputation and was seen as a strong and passionate contributor to that sport. 3    The circle established on the evidence appears to be founded upon regular contact with the plaintiff and knowledge of the plaintiff's involvement in the promotion of a Campbelltown rugby league team into what is described as the major league and the plaintiff's stance relating to themes relating to Campbelltown. 4    The question was asked of Mr Heads as follows:

"Q. As a regular rugby league writer and based on your association with people concerned with rugby league in New South Wales, do you have a view of the ethical standards which people involved in rugby league should observe?"

5    Objection was taken to that question. 6    The witness had given evidence that his acquaintance with the reputation of the plaintiff was in the circle described by the witness, as “rugby league officialdom principally”. In common with other evidentiary matters in this trial, the issue highlighted by the question and the objection taken to it focuses upon both principle and the state of the evidence. 7    For the plaintiff, it is contended that this evidence falls into the category of evidence held to be admissible by the High Court in Readers Digest Services Pty Limited and Another v Lamb (1981-2) 150 CLR 500. It is evidence also of the kind given by Father Confeggi and recorded at pages 2495-6 of the transcript of the proceedings on 25 November 1999. 8 Father Confeggi was asked by Mr Donohoe at line 38 on 2495 the question:

"Q. Now by virtue of your training did you, yourself, have a view as to the ethical standards which Catholics should observe in relation to matters of homosexual intercourse with persons under the age of legal consent?
A. Yes."

9    Father Confeggi gave evidence as to his knowledge of Mr Marsden not having been otherwise than a Catholic throughout his life, and then answered a series of questions founded upon the imputations the jury in this trial concluded were in fact carried by the program sued upon. 10    By way of example, on page 2496:

"Q. I want you to assume that the first program imputed that Mr Marsden had had sexual intercourse with a 15 year old boy who was then under the influence of drugs which had been given to him by Mr Marsden, do you have a view as to whether or not that conduct meets the ethical standards which you regard as necessary to be observed by Catholics?

A. It would be totally inappropriate, immoral and criminal".

11    The decision of the High Court in Lamb's case can be understood as establishing that evidence is admissible on the issue of a particular impact of the defamatory imputation. At page 507 Brennan J said:

"In making its assessment a jury is properly assisted by evidence that the making of the defamatory imputation found by them had an especially adverse impact upon the plaintiff's reputation in the eyes of some group or class in the community. Of course care must be taken to ensure that evidence of the attitude of particular groups of classes is not misused. It is neither material to nor admissible upon the issue of the defamatory nature of the imputation made. The defamatory nature of an imputation is ascertained by reference to general community standards not by reference to sectional attitudes, but if the imputation is defamatory according to the standards of the community generally, a particular impact of the defamatory imputation may be proved."

12    In Lamb's case it must be observed first that the plaintiff was a journalist; second, that the imputations were as pleaded and, as were still on the record at the time of the relevant evidence, was given as follows:

1. The plaintiff betrayed the confidence of an old friend who had turned to him at a time of dire personal distress;

2. The plaintiff, in order to secure a sensational newspaper story, exploited the tragedy that had befallen an old friend.

3. That the plaintiff for journalistic ends obstructed the course of the police inquiry concerning the disappearance of Mrs Muriel McKay.

13    These imputations are set out on page 503. In the end the second only of the imputations was found by the jury and an award of damages was made. 14    Next, it is to be observed that the High Court was concerned with the admissibility of evidence from three people: the plaintiff himself, Mr Lamb - that situation has not arisen in this case. More to the point was the evidence of two other persons, Mr Murdoch and Mr Hogben, both of whom were journalists. In that context the basis of admissibility was as stated by Brennan J. 15    In the present case, and this is stressed by the defendant, the imputations as found by the jury, without questioning what they mean, which is impermissible, without questioning that they were otherwise found by the jury based upon their understanding of what the community as a whole would have understood the telecasts to be conveying, are of a general nature, in the sense that when compared to the imputations in Lamb's case, do not directly, in their terms, relate to the conduct of the plaintiff as a rugby league person in the same way that the imputations, in respect of which the evidence ultimately was allowed in Lamb can be viewed as relating to the plaintiff in that litigation as a journalist. 16    Further, on the evidence in its present state, we have the witness's evidence as to the plaintiff's reputation in rugby league circles as has been described by him which I understood to be principally rugby league officialdom. Thus it is submitted, as I understand it for the defendant, what I will describe either as a presence of too broad a generality or the absence of a more refined focus, as was applicable in Lamb's case. 17    If the principle in Lamb's case is understood in accordance with how Brennan J stated it, a particular impact of the defamatory imputation may be proved in the context in which his Honour made that statement and the notion of “generality”, I do not consider would exclude such evidence. The particular impact of the found defamatory imputations may be proved in relation to the plaintiff in respect of whom there is evidence that as at 1995 he enjoyed a good reputation in the area I have described. Thus, as a matter of principle, I see no basis for its exclusion. 18    Mr Heads certainly, according to the evidence at present, has had extensive experience as a rugby league and sporting journalist and been connected in that role with both newspapers generally, and specialist rugby league publications. 19    Insofar as the knowledge of the plaintiff's reputation with “rugby league officialdom principally” has been the focus of his evidence, whether or not it has been established through the witness that he, vis-a-vis rugby league officialdom, is in a position to answer the question is at best very unclear. To explain that one need say no more than of course Father Confeggi was a practising Roman Catholic priest. 20    At this stage, on the state of the evidence, whilst evidence of the kind sought to be tendered I have ruled as a matter of principle would be admissible, I am not persuaded that sufficient groundwork has been laid for the question asked, and I will reject the question.

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Last Modified: 12/09/1999