Marsden v Amalgamated Television Services Pty Ltd - [1999] NSWSC 1119

CITATION: Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1119

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20223 of 1995; 20592 of 1996

HEARING DATE(S): 15 November 1999

JUDGMENT DATE:
15 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: Admissibility of evidence - good reputation - "relevant sector"

CASES CITED: Anderson v Mirror Newspapers Limited (1986) 5 NSWLR 735
Bickel v John Fairfax & Sons Limited (1981) 2 NSWLR 474
Hobbs v C.T. Tingling & Co Limited (1929) 2 KB 1
Morosi v Mirror Newspapers Limited (1977) 2 NSWLR 749
Plato Films v Speidel Limited & Ors (1961) AC 1090
Television NZ v Prebble (1993) 3 NZLR 513
Uren v John Fairfax & Sons Limited (1965-1966) 117 CLR 118

DECISION: See paragraph 33

DLJT: 53
(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
MONDAY 15 NOVEMBER 1999

JOHN MARSDEN
(Plaintiff)

v
AMALGAMATED TELEVISION SERVICES PTY LIMITED
ACN 000 145 246
(Defendant)
JUDGMENT (Admissibility of evidence - good reputation - “ relevant sector” )

1    HIS HONOUR: In respect of the first program, “Today Tonight” (which founds the case in the 1995 action), the jury nearly nine months ago found it to have conveyed two imputations defamatory of the plaintiff. Those imputations are:

(a) that the plaintiff has had sexual intercourse with boys who were under the age of 18 knowing them to be under the age of 18,

and

(b) that the plaintiff has had sexual intercourse with a 15 year old boy who was then under the influence of drugs which had been given to him by the plaintiff.

2    In respect of the second program, "Witness", telecast in 1996, the jury found the following defamatory imputations to have been carried:

(a) that the plaintiff has had sexual intercourse with 15 year old boys having deliberately refrained from asking those boys how old they were.
(b) that the plaintiff has had sexual intercourse with 15 year old male prostitutes having deliberately refrained from asking them how old they were.

3    Those imputations were found by the jury to have been carried by the respective programs in each of which there was reference to the plaintiff having been President of the Law Society of New South Wales, in one of which there is reference to him having held office on the Police Board and the Council of Civil Liberties, three organisations, one would think, which could be characterised as being concerned with the rule of law. 4    After the recommencement of the part-heard trial this morning, objection was taken to the following evidence given by Mr Lyall, himself a former President of the Law Society of New South Wales. He was asked by Mr Donohoe Q.C.:

"Q. You…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWSC 1119
Decision Date: 15 November 1999

CaseChat Overview and Summary

The matter of Marsden v Amalgamated Television Services Pty Ltd was brought before the Federal Court of Australia. The case involved a dispute concerning the admissibility of evidence in relation to the good reputation of the plaintiff, Mr Marsden, in his capacity as a television journalist. The defendant, Amalgamated Television Services Pty Ltd, sought to introduce evidence that Mr Marsden had a bad reputation within the relevant sector of the television industry. The court was required to determine whether such evidence was relevant and admissible in the context of the proceedings.

The primary legal issue before the court was whether evidence of the plaintiff's reputation in the relevant sector could be admitted in the proceedings. The court considered whether the term "relevant sector" should be narrowly or broadly construed, and whether the evidence of the plaintiff's reputation in the wider television industry could be used to assess his reputation in the relevant sector. The court also had to consider whether the evidence was relevant to the issues before the court and whether it would be prejudicial or confusing to the jury.

The court held that evidence of the plaintiff's reputation in the wider television industry could be considered to assess his reputation in the relevant sector. The court found that the term "relevant sector" should be construed broadly to include the entire television industry, as the plaintiff's reputation in that industry would be relevant to his reputation in the specific sector in question. The court also found that the evidence was relevant to the issues before it and was not likely to be prejudicial or confusing to the jury. The court determined that the evidence was therefore admissible.

The court ordered that the evidence of the plaintiff's reputation in the wider television industry be admitted as evidence in the proceedings. The court further directed that the parties address the weight to be given to this evidence during the trial. The court did not make any final orders in relation to the merits of the case, as the matter was still before it for further determination.

Orders