Marsden v Amalgamated Television Services Pty Limited

[2000] NSWSC 286

CITATION:

Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 286

FILE NUMBER(S):

SC 20223 of 1995; 20592 of 1996

HEARING DATE(S):

5 April 2000

JUDGMENT DATE:

5 April 2000

PARTIES :

JOHN MARSDEN

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED

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 - relevance - "public interest" - truth - qualified privilege - T5201.
LEGISLATION CITED:	Defamation Act, 1974.
CASES CITED:	Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153.
DECISION:	See paragraph 11.

DLJT: 134
(Ex Tempore - Revised)
[2000] NSWSC 286

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

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE

WEDNESDAY 5 APRIL 2000

JOHN MARSDEN
(Plaintiff)

v

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

JUDGMENT (Admissibility - relevance - “public interest” - truth - qualified privilege - T5201)
1    HIS HONOUR: MFI7 is an article that is to be taken to have been published in “The Sydney Morning Herald” on 15 March 1995. Its MFI number indicates that it was some time ago that the article first was deployed in these proceedings; it clearly was, in the course of the plaintiff’s case in respect to reputation. Several of the plaintiff’s witnesses, were cross-examined as to their understanding of certain aspects of what was published. 2    The defendant, now in its case, proposes to call Mr Robson, the journalist responsible for the compilation of the article, and an objection has been taken, in advance of Mr Robson’s evidence, as to its admissibility as a whole, founded upon a submission that it is irrelevant. To dispose of the objection, I will shortly state the position as follows. 3    As I understand it, three heads of relevance have been advanced for the defendant. 4    The first is, as part of its case as under s15 and s16 of the Defamation Act (truth and contextual truth). Its case on truth involves the imputations in question relating to matters of public interest. 5    The publication, MFI7, plays a part in the defendant’s case, with respect to the “Witness” program (Exh B) the second telecast sued upon. The publication (MFI 7), it is said, is relevant to the question, of whether the imputations sought to be justified relate to matters of public interest. The material in the article points to the plaintiff having made public comments as to his private life. It is as to the fact of the plaintiff having done so, that the defendant wishes to call Mr Robson, (presumably to say, “yes”, Mr Marsden said “X”, or “yes”, Mr Marsden and I did “Y”, as described in the MFI). 6    It is often the case that an imputation in a defamation action, justified by a defendant, by its very terms unarguably relates to a matter of public interest. Indeed, as I understand the position, for the purposes only of s 15, a concession is made by the plaintiff, that the imputations relate to matters of public interest. I know of no case that precludes a defendant calling evidence on the issue of public interest in that context. And indeed, the decision of the Court of Appeal in this case consequent upon my refusal of injunctive relief in relation to the “Witness” program (unreported 2 May 1996) and the earlier decision of Hunt CJ in Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153, are certainly consistent with a defendant being able to call such evidence. I therefore hold it to be relevant to and thus admissible on that basis. 7 The second basis advanced is that it is relevant to what, I gather, is going to be a contentious component of the privilege case. The relationship of the relevant matter complained of to the, "character, sexual conduct and proclivities of the plaintiff", in what I will describe as the “public interest” components of privilege case to be advanced on the three bases, to which I referred in the ruling two days ago (NSWSC 280; DLJT:131). 8    It is a matter of concern to the plaintiff, as I understand it, that the defendant is seeking in some way to explore all aspects of the plaintiff's life, within the context of “character, sexual conduct and proclivity” and it is argued, that an unrestrained exploration would be irrelevant. That certainly has some merit. I do not understand however the defendant to be seeking to embark upon that course but rather to establish that the plaintiff has “gone public” on the issue of his sexual conduct and proclivities. Further, of course, it could hardly be disputed that the imputations the defendant is seeking to justify, relate to the plaintiff’s sexual conduct vis a vis the charges in the imputations. 9    It is, I am persuaded, relevant to what I have described as the “public interest” components of the privilege case, that evidence from Mr Robson, as to the facts of what Mr Marsden said and what he and Mr Marsden did, is admissible. 10    The third basis is that part of the factual material sought to be proved through Mr Robson, relates to an issue in the plaintiff's case on damages. That issue, in general terms, is described and has been described, as causation. Reference has been made in submissions, to “stressors”, the subject of psychiatric evidence in the plaintiff’s case on damages last year. The factual matters, as distinct from the reporting of them in MFI7, will be admissible as relevant to that issue as well. 11    As is acknowledged, as it has to be by the defendant, in the end, whether the factual matters proved, the matters of asserted relevance, will be a matter for submissions. But I am not prepared to exclude the proposed testimony and I will allow it.

Last Modified: 09/25/2000