Marsden v Amalgamated Television Services Pty Limited

[2000] NSWSC 312

CITATION:	Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 312
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20223 of 1995; 20592 of 1996
HEARING DATE(S):	7 April 2000
JUDGMENT DATE:	7 April 2000
PARTIES :	JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant)
JUDGMENT OF:	Levine J at 1

COUNSEL :	I Barker QC M R Hall (Plaintiff) W H Nicholas QC J S Wheelhouse (Defendant)
SOLICITORS:	Phillips Fox (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	Admissibility - evidence to rebut "reasonableness" "deliberately misleading" footage - T5279.
CASES CITED:	Morgan v John Fairfax & Sons Ltd (No.2) (1991) 23 NSWLR 374; Wright v Australian Broadcasting Commission (1977) 1 NSWLR 697.
DECISION:	See paragraph 16

DLJT: 135
(Ex Tempore - Revised)
[2000] NSWSC 312

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

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE

FRIDAY 7 APRIL 2000

JOHN MARSDEN
(Plaintiff)

v

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

Judgment: (Admissibility - evidence to rebut “reasonableness” “deliberately misleading” footage - T 5279)
1    Mr Hall, the executive producer of “Today Tonight” has been shown in the course of cross-examination part of exhibit A, a videotape of that program and, in particular, that segment represented by lines 94 to 115 of the agreed transcript. 2    That segment deals with a search of the plaintiff’s home by the police, the possession by the defendant of documents in connection with that event, including statements by a Superintendent Bob Small, and what appears to be a brief meeting with Superintendent Small in the street between him and the reporter, and the camera crew obviously, in which Mr Quail says:

“I would like to talk to you about an incident last year in May where I believe you were involved in a search of the property of John Marsden, a member of the Police Board.”

3    To which Mr Small replies:

“I have no comment to make about that at all”.

4    It is contended for the plaintiff that that presents to the viewing public an image that, as between Mr Small and the reporter and the defendant, there is detachment, or, as it was expressed by Mr Barker, they were at “arm’s length”; whereas on the evidence elicited from Mr Hall, it is the case that at the time of that confrontation in the street, Superintendent Small and Channel 7 had not been at arm’s length, and that the impression conveyed by the telecast was misleading, and deliberately so. 5    Prior to objection being, taken the essence of the plaintiff's position had been put to Mr Hall and dealt with by him in a series of questions and answers as follows:

“Q. And did Quail tell you that during the conversation between Small and Quail, they agreed that Quail would film you?
A. Yes.

Q. And hence the portion I have just showed you?
A. Yes.

Q. In which Mr Small appears to be absolutely resolute in not talking to Channel 7?
A. Yes, on camera.

Q. That was just a little farce, wasn’t it?
A. No, not at all, it was in keeping with police rules. He wasn't allowed to appear and talk on camera.

Q. It was intended to convey to the public that he would not talk to you, whereas in fact he had talked to you at some length?
A. No.

Q. What was the point of it?
A. Well this is a visual medium Mr Barker.

Q. I understand that, that's why we are here?
A. I am trying to answer the question. I haven't finished. This is a visual medium. If we are talking about Superintendent Small being involved in a chain of events, then we need to have a visual description of him on the screen; which is what we did and achieved in my belief.

Q. But you had more than that, you had a conversation with him, didn’t you?
A. Yes.

Q. And you had Mr Quail asking him if he would talk to him about a subject?
A. Yes.

Q. That is Mr Marsden?
A. Yes.

Q. You have Mr Small saying “no”, he would not say anything about it?
A. Yes, on camera.

Q. Whereas he had in fact said a lot about it?
A. Yes, off camera.

Q. He didn’t say on camera ‘I am not going to talk on camera, I have already given you the information’, did he?
A. No.

Q. And nothing in the film was going to convey to the public that he had already spoken to you and given you a lot of documents?
A. No, we are not revealing that source.

Q. You were just putting him on the film as a superintendent of police who, in the line of duty, was not going to talk to a television company?
A. Not at all, no.

Q. It was entirely misleading I suggest?
A. No. We were putting him on the film because, as I have explained, the program was indicating that he is involved in a search of Marsden’s home, so he is involved in that chain of events and we are visually representing it.

Q. Just let me get the chronology right. He talks to Quail, verifies the documents, agrees to go on the film, right?
A. Yes.

Q. We see that he has got his best hat on?
A. We see that he is Superintendent Small and the public gets to know that this Superintendent Small exists, yes.

Q. He is approached by Mr Quail who invites him to talk about the search. Let me just get it. Mr Quail said to him, and this is broadcast:

‘Superintendent Small my name is Greg Quail from Channel 7 Today Tonight. I would like to talk to you about an incident last year in May where I believe you were involved in a search on the property of John Marsden, a member of the Police Board.’
Superintendent Small said: ‘I have no comment to make about that at all' and Greg Quail said: `Superintendent Small you found no drugs?’ Superintendent Small: ‘I have no comment to make, sorry.’

Now that was entirely rehearsed, wasn't it?”

6    At which point Mr Nicholas objected. 7    The defendant objects on two bases: The assertion that the segment telecast was intended and deliberately misleading was not particularised as a matter in defeasance of s 22 as required by SCR Pt 67 r 19, or as required generally under the rules of court SCR Pt 16 r 3. 8    In the circumstances where I am satisfied the subject evolved in cross-examination, I cannot see how that could have been done, if there was a need in any event for it to have been done. 9    The second basis, as I understood it, is that it is not open, on the issues embraced by the s 22 defence, to the plaintiff to select one bit, part or component of the defendant’s case in isolation on the issue of reasonableness, in isolation especially from imputations found and believed by the defendant to be true. 10    For the plaintiff it is contended that the reasonableness of the defendant’s conduct in publishing the matter complained of can be tested on this part, bit or point, reference being made to Morgan v John Fairfax & Sons Ltd (No.2) (1991) 23 NSWLR 374 at 388 and Wright v Australian Broadcasting Commission (1977) 1 NSWLR 697 at 712. 11 The Small documents constituted information relied upon by Mr Hall in coming to the decision to publish the matter complained of, which conveyed the found imputations which Mr Hall believed to be true. The Small documents were expressly the subject of a request by Mr Hall of Mr Quail for authentication which, as I understand the evidence, was received. That is, there was contact between Superintendent Small and the defendant before, in fact, which exposes the impression conveyed by the segment as false and that it was deliberate and intended. 12 The parties’ positions in relation to the ambit of relevant and admissible evidence on the defence of qualified privilege, seems to have been juxtaposed from that taken earlier this week leading to my ruling of Monday 3 April, (NSWSC 280 DLJT:131). Be that as it may, I am not persuaded that there was any obligation on the plaintiff, in the circumstances, to particularise this line of cross-examination. 13 The defendant can re-examine Mr Hall, and can confer with Mr Hall before doing so. The defendant is going to call Superintendent Small and presumably Mr Quail. 14 The evidence is relevant and admissible on the reasonableness of the defendant in its conduct in publishing the matter complained of, which has been found to convey imputations believed by the defendant to be true, based inter alia on the Small documents and enquiries in relation to them. 15    In the end, as I remarked in similar terms on Monday, this may well prove nothing as to want of reasonableness in publishing the matter complained of, or as to the foundation for any belief in the truth of the imputations found. That will remain to be seen. 16    It has been indicated by Mr Barker that it is his intention further to cross-examine Mr Hall on this subject matter by reference to video tapes of what I have described as “the confrontation between Mr Quail and Superintendent Small in the street”. First by “confrontation”, I hope to use that word as neutrally as possible. Second, the defendant, in relation to any such line of questioning consistent with that which has led to this ruling, will be protected in terms of any objection it might otherwise have taken and I will allow the evidence to continue.

Last Modified: 09/25/2000