Marsden v Amalgamated Television Services Pty Limited

[2000] NSWSC 692

CITATION:

Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 692

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 20223 of 1995; 20592 of 1996

HEARING DATE(S):

14 July 2000

JUDGMENT DATE:

21 July 2000

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J at 1

COUNSEL :	M R Hall (Plaintiff) J S Wheelhouse (Defendant)
SOLICITORS:	Phillips Fox (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	REASONS - Admissibility - press cuttings - public interest - ss 15 & 16 Defamation Act 1974 - qualified privilege
DECISION:	See paragraph 12

DLJT: 198
CAV
[2000] NSWSC 692

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

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE

FRIDAY 21 JULY 2000

JOHN MARSDEN
(Plaintiff)

v

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

JUDGMENT (Reasons - Admissibility - press cuttings - public interest - ss 15 & 16 Defamation Act 1974 - qualified privilege)

1    The defendant tendered a bundle of newspaper clippings including MFI’s 3, 6, 12, 13, 31, 33, 34 and 35 together with a video of the Australian Broadcasting Corporation’s 7.30 Report of 4 August 1992 (MFI 11). On 18 July I admitted the documents into evidence as Exhibit 264. 2    The material was tendered on the issue of “public interest”. 3    It was tendered on that issue in relation to the defence under s 16 (contextual truth) and as relevant to issues arising under the defence of qualified privilege. 4    At T5199.35-40 it is stated for the plaintiff that in relation to the defence under s 15 there was no issue that the imputations the defendant was seeking to justify related to a matter of public interest. That position was not taken with respect to contextual imputations. 5    It is to be understood that the material, if admitted, is to be admitted only as evidence of matters in fact published by the respective instruments of the media and not the truth of the contents nor the honesty of opinions held by leader writers and columnists nor the factual foundation for any such opinions. 6    It was argued by the defendant that in addition to the material being relevant to the issue of public interest as required by the justification defences by statute, it is relevant to issues arising under the defence of qualified privilege at common law. 7    This aspect of the defence will be approached in three ways: first, what is described as traditional common law qualified privilege founded upon reciprocity of duty and interest. The second category of common law privilege to be relied upon is said to be that “identified” by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The third category is constituted by what is said to be the application of the traditional doctrines of common qualified privilege as expounded in the House of Lords in Reynolds v Times Newspapers Limited (1999) 3 WLR 1010. It is in relation to the second and third categories in particular that it was said that this material is of relevance insofar as it is capable of demonstrating that the plaintiff who had held high office, as the holder of such office, and in terms of his sexual conduct, as a matter of fact, irrespective of the cause, was the subject of “public interest”. 8    The notion of a subject of public interest is wide in its ambit (see, for example, the discussion in Bellino v Australian Broadcasting Corporation (1995-6) 185 CLR 183, though noting the High Court was there concerned with the application of s 377(8) of the Criminal Code (Q.)). 9    For the plaintiff it was argued that the decision of the Court of Appeal (14 June 1984) in Chappell v Mirror Newspapers Limited (1984) Aust Torts Reports 80,691 conclusively excludes the admissibility of this kind of evidence. With that submission I cannot find myself in agreement. The Court of Appeal was there concerned principally with the use of newspaper cuttings in relation to a defence under s 13, the misuse of such material in relation to the defence of truth and its unavailability in the there relevant areas in respect of reputation. 10 It was further submitted that insofar as the bulk of the material (save for about two articles) makes no reference to the sexual conduct referred to in the imputations, it is thereby irrelevant and inadmissible. I am not persuaded by that argument in the context of the relationship of the imputation to a matter of public interest; the phrase “relate to” cannot be so narrow, nor in relation to what I will simply describe, for present purposes, as the “status” of the plaintiff in relation to the two components of the defence of qualified privilege referred to above. 11    The submissions adumbrated in the course of argument as to the admissibility of the folder of documents will no doubt be amplified in the substantive submissions as to whether or not the defence of qualified privilege has been made out and if it is still a live issue whether or not the contextual imputations relate to a matter of public interest. 12    I am persuaded that the tendered material is “relevant” to those issues as advanced for the defendant. The bundle of documents including those marked for identification I set out at the beginning of these reasons thus became exhibit 264.

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Last Modified: 09/26/2000