Marsden v Amalgamated Television Services Pty Limited

[1999] NSWSC 1133

CITATION:

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1133

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20223 of 1995; 20592 of 1996

HEARING DATE(S):

23 November 1999

JUDGMENT DATE:

23 November 1999

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	P Donohoe Q.C. M Hall (Plaintiff) W H Nicholas Q.C. (Defendant)
SOLICITORS:	Marsdens (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	On admissibility of evidence relevant to "shunning" - T2368
ACTS CITED:	Evidence Act 1995 (NSW)
DECISION:	See paragraph 8

DLJT: 57
(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 23 NOVEMBER 1999

JOHN MARSDEN
(Plaintiff)

v

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


JUDGMENT (On admissibility of evidence relevant to “ shunning ” - T2368)

1 HIS HONOUR: The direction that the evidence of Mr Puplick is taking which has given rise to an objection is, as I understand it, that after the first telecast in 1995 there was a change in the structure of the AIDS Trust prior to the telecast. The structure included a board of governors, one of whom was the plaintiff, that is, before the telecast sued upon Mr Marsden had that role in the AIDS Trust. 2 As a matter of fact, as I understand it, after the telecast the structure of the AIDS Trust was changed with the result that Mr Marsden was not a participant. Apparently the change in structure in the light of the formulation of the question asked of the witness was founded upon other reasons or other factors. By that it is to be understood, and by that it can only be understood that the change of structure was not generated by anything in connection with Mr Marsden. 3 I do not understand it to be put that the AIDS Trust structure was changed because of what was telecast about the plaintiff. It was going to be changed for other reasons. What is put is that the circumstance of the change was availed of or used as the opportunity for bringing it about that Mr Marsden played no further role in the AIDS Trust. 4 Mr Puplick is in a position in my view to give evidence of the fact of the structure before, the fact of the structure after, which no doubt would include, to put it starkly, the absence of Mr Marsden. That evidence in my view can be given by the witness, and is relevant to the issue of whether or not what happened with the AIDS Trust in the end could be found to be an example of a shunning of Mr Marsden. 5 Pausing there: whether in the end such evidence would establish on the balance of probabilities that proposition, would have to be a matter of submission. I am not however persuaded on the relevance point that there is a basis for excluding it. 6 That being so, I turn my mind to the discretions to exclude evidence under ss 135 and 136 of the Evidence Act. Implicit in Mr Nicholas' submission was reliance really upon two components under each section: the unfairly prejudicial component, which I had dealt with in an earlier ruling but in a different context (NSWSC 1120: DLJT: 54); and either the undue waste of time or misleading or confusing components referred to in s 135 or s 136 respectively. 7 The foundation for the submissions in both areas is that without what one might describe as the more extensive formalities of evidence to show corporate restructuring, board thinking, or the like, (relevant documentary records), the defendant is in a position where its capacity to test Mr Puplick's testimony is compromised to the point where the section should be availed of to its benefit. 8 When, however, one goes back to the considerations that give rise to the ruling in favour of relevance and the status of this witness to give evidence on the matters affecting the AIDS Trust and its restructuring, and takes into account that it is proposed to lay groundwork for the drawing of some inference, I am not presently persuaded that there is either the unfair prejudice or the risk of confusion, or waste of time for the purpose of either of the discretion sections. I will allow the question.

***********

Last Modified: 11/29/1999