Marsden v Amalgamated Television Services Pty Ltd - [1999] NSWSC 1061

CITATION: Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1061

CURRENT JURISDICTION: Common Law

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

HEARING DATE(S): 18, 20 October 1999

JUDGMENT DATE:
26 October 1999

PARTIES :

JOHN MARSDEN
(Plaintiff)
v
AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF: Levine J

COUNSEL :
In Person
(Plaintiff)
J S Wheelhouse
(Defendant)

SOLICITORS: Mallesons Stephen Jaques
(Defendant)

CATCHWORDS: On Plaintiff's Notice of Motion re "structure" of trial

DECISION: See paragraph 14

DLJT: 48

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

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE
TUESDAY 26 OCTOBER 1999

JOHN MARSDEN
(Plaintiff)

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

JUDGMENT (On Plaintiff’s Notice of Motion re “ structure ” of trial)

1 By Notice of Motion filed in Court on 18 October 1999 the plaintiff applies for the following orders:

“1. That the plaintiff not be cross-examined by the defendant until the hearing of all the defence evidence on its truth defences in both actions.

2. Alternatively, that the plaintiff’s cross-examination by the defendant after giving evidence in relation to the damages section be limited to damages and cross-examination in respect of truth be subject to cross-examination after the plaintiff has given evidence in relation to the truth question.

3. Alternatively, for such orders as the Court deems fit”.

2 A cognate application was made on 9 February 1999 and decided adversely to the plaintiff ([1999] NSWSC 28: DLJT: 4). 3 The import of the application as explained by Mr Marsden (who argued it himself) was that the cross-examination of the plaintiff upon his having giving evidence on damages be either (a) adjourned until the plaintiff has given evidence on justification; or (b) he be allowed to give evidence on damages in his justification case (that is, in rebuttal of the defence case on justification) or (c) that the cross-examination of the plaintiff after he has given evidence (in a case in chief, as I understand it), on damages be restricted to damages. The plaintiff says that of the three alternatives the last only is likely to cause the defendant any disadvantage. 4 I am asked to exercise the powers and discretion provided by s 85(2) of the Supreme Court Act and SCR Pt 31 r 2. 5 It is submitted that I should take either of the first or second courses and make an order accordingly on the basis of “fairness” in the light of the peculiar nature of this defamation action. 6 The imputations found by the jury, it is submitted, are of the utmost gravity. It is of course part of the plaintiff’s case on damages that they are false. As to the gravity of the imputations that, in the normal course, is a factor to be taken into account if and when damages are to be assessed. For the purposes of this interlocutory application it is sufficient for me to acknowledge…

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 1061
Decision Date: 26 October 1999

CaseChat Overview and Summary

The case of Marsden v Amalgamated Television Services Pty Ltd was brought before the court, with the plaintiff seeking a determination regarding the structure of the upcoming trial. The plaintiff, Marsden, alleged that he was unfairly dismissed by his employer, Amalgamated Television Services Pty Ltd. The nature of the dispute centred on the format and proceedings of the trial, specifically the plaintiff's request for a specific trial structure. The court was tasked with deciding whether the plaintiff's proposed structure was appropriate and if it should be adopted for the trial.

The legal issues before the court involved the appropriate procedural framework for the trial. Marsden argued that the proposed structure would ensure a fair and efficient trial, while Amalgamated Television Services Pty Ltd contended that the plaintiff's request was an attempt to unduly influence the trial's outcome. The court needed to balance the principles of fairness, efficiency, and procedural justice in deciding on the trial structure.

The court carefully considered the arguments of both parties and the relevant legal principles. It was determined that the plaintiff's proposed structure would not unduly influence the trial's outcome and would, in fact, ensure a fair and efficient process. Consequently, the court ruled in favour of the plaintiff and ordered that the trial proceed with the proposed structure. This decision was based on the court's assessment that the requested structure would facilitate a just resolution of the dispute.

Orders