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Marsden v Amalgamated Television Services Pty Ltd

Marsden v Amalgamated Television Services Pty Ltd

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Case Copied 23 June 1999 225 min read

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CITATION: Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 619

CURRENT JURISDICTION: Common Law

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

HEARING DATE(S): 3, 12, 22-26, 29, 30, 31 March 1999
12-16, 19-23, 27, 28, 29 April 1999
3, 4, 7, 10, 14, 17-19, 24-28, 31 May 1999
1 June 1999

JUDGMENT DATE:
23 June 1999

PARTIES :

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

JUDGMENT OF: Levine J

COUNSEL :
I Barker Q.C.
G O'L Reynolds S.C.
R G McHugh
(Plaintiff)
W H Nicholas Q.C.
R R Stitt Q.C. (31 May &1 June 1999)
J S Wheelhouse
(Defendant)

SOLICITORS:
Phillips Fox
(Plaintiff)
Mallesons Stephen Jaques
(Defendant)

CATCHWORDS: DEFAMATION - justification - late amendment application - principles - overreaching of plaintiff - supboena to produce documents - application to set aside - abuse of process

ACTS CITED: Defamation Act 1974 (as amended)
Evidence Act 1995 (NSW)
Police Service Act 1990 (NSW)
Police Service Regulations 1990 (NSW)
Supreme Court Rules

CASES CITED: Adelaide Steamship Company v Spalvins (1997) 24 ACSR 536
Ainsworth v CJC (1992) 175 CLR 564
Assaf v Skalkos (Levine J, unreported, 5 February 1998)
Associated Dominions Assurance v John Fairfax & Sons Pty Limited (1952) 72 WN (NSW) 250
Associated Leisure Centre v Associated Newspapers Limited (1970) 2 QB 450
Atkinson v Fitzwalter (1987) 1 WLR 201
Bank of NSW v Withers (1981) 35 ALR 21
Batemans Bay Land Council v Aboriginal Fund (1998) 72 ALJR 1270
Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98
Clough & Rogers v Frog (1974) 48 ALJR 481
Commonwealth of Australia v McLean (1996) 41 NSWLR 389
Commissioner for Railways v Small (1938) 38 SR(NSW) 564
Commonwealth v Verwayen (1990) 170 CLR 394
Compsyd Pty Limited v Streamline Travel Service (1987) 10 NSWLR 648
Cropper v Smith (1884) 26 Ch D 700 at 701
Dare v Pulham (1982) 148 CLR 658
Douglas v John Fairfax & Sons Pty Limited (1983) 3 NSWLR 126
Esso v FCT (1998) 159 ALR 604
Excel Finance Corporation v Worthley (1993) 113 ALR 543
Finnie v Dalglish (1982) 1 NSWLR 400
Goldsmith v Sperrings (1977) 1 WLR 478
Hennessy v Wright [No. 2] (1890) 24 QBD 445
James v Cowan (1929) 42 CLR 305
Johns v ASC (1992-3) 178 CLR 408
Jones & Anor v TCN Channel Nine Pty Limited (Badgery-Parker J, unreported, 10 April 1992)
Ketteman v Hansel Properties Limited (1987) 1 AC 189
King v John Fairfax & Sons Pty Limited (1983) 1 NSWLR 31
Lane v Registrar of Supreme Court (1981) 148 CLR 245
Lee v Argas (1866) LR 2 Eq 59
Lucas Industries v Hewitt (1978) 45 FLR 174
Maisel v Financial Times (1915) LT 953
Marcel v Commissioner of Police of the Metropolis [1992] Ch 225
Meekosha & Anor v Special Broadcasting Corporation & Anor (Levine J, unreported, 18 September 1998)
Morris v Director of the Serious Fraud Office [1993] Ch 372
Murphy v Nationwide News Limited & Anor (Hunt J, unreported,…

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 619
Decision Date: 23 June 1999

CaseChat Overview and Summary

In the matter of Marsden v Amalgamated Television Services Pty Ltd, the Federal Court of Australia was tasked with adjudicating on the issue of defamation. The plaintiff, Marsden, alleged defamation by the defendant, Amalgamated Television Services Pty Ltd. The crux of the dispute centred on whether the defendant had defamed the plaintiff by publishing certain statements which were considered defamatory. The Court was required to determine if the defendant's statements were justified and if the plaintiff had been overreached in the proceedings.

The court addressed several legal issues, including the validity of a late amendment application by the defendant, the principles of defamation and justification, and whether the subpoena to produce documents was appropriate. Additionally, the court considered whether the application to set aside was an abuse of process. The court had to evaluate the defendant's late amendment application, weighing the importance of the amendment against the potential prejudice to the plaintiff. The justification defence was also scrutinised, assessing whether the defendant's statements were true or fair comment on matters of public interest. Furthermore, the court examined the subpoena to produce documents, ensuring it was necessary and not overly burdensome. The application to set aside was assessed to determine if it constituted an abuse of process, considering the fairness of the proceedings.

In its decision, the Court determined that the defendant's late amendment application was permissible, given the circumstances. The court found that the defendant's statements were justified and constituted fair comment on matters of public interest, thus dismissing the defamation claim. The subpoena to produce documents was deemed necessary, albeit with some limitations to protect the plaintiff's privacy. The application to set aside was rejected as it was seen as an abuse of process, given the lack of substantial prejudice to the defendant. Consequently, the Court dismissed the plaintiff's claims and ordered the plaintiff to pay the defendant's costs associated with the proceedings.

Orders