Marsden v Amalgamated Television Services Pty Ltd - [1999] NSWSC 28

CITATION: Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 28

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20223/95; 20592/96

HEARING DATE(S): 03/02/99 - 04/02/99

JUDGMENT DATE:
9 February 1999

PARTIES :

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

JUDGMENT OF: Levine J

COUNSEL :
Mr I Barker Q.C.
Mr G O'L Reynolds S.C.
Mr R G McHugh
(Plaintiff)
Mr J S Wheelhouse
Mr R Titterton
(Defendant)

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

CATCHWORDS: On application for separate trial of defences

ACTS CITED: Defamation Act 1974 (as amended)
Supreme Court Act 1970

DECISION: See paragraph 29

- 12 -

DLJT: 4

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

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE
TUESDAY 9 FEBRUARY 1999

JOHN MARSDEN
(Plaintiff)

v
AMALGAMATED TELEVISION SERVICES PTY LIMITED
ACN 000 145 246
(Defendant)
JUDGMENT (On application for separate trials of defences)
1 An application has been made by the plaintiff that can be summarised thus: that the issues of qualified privilege, contextual truth and substantial truth and public interest should be tried first; if the plaintiff succeeds on those issues, the issue of damages should then be tried.
2 It is posited that assuming that the jury finds publication by the defendant, that the publication carries all or some of the imputations and that all or some of the imputations are defamatory, then in the “ singular ” circumstances of this case the course applied for should be followed.
3 I assume that the reference to the finding as to publication by the defendant arises from a curiosity in the drafting of s 7A of the Defamation Act, 1974 . Section 7A deals with the function of the judge and the jury and in sub-sections (1), (2) and (3) it appears tolerably clear that whether a matter is capable of conveying an imputation and whether that imputation is capable of being defamatory is a matter for the judge. In particular sub-section (3) provides that upon the Court determining the question of capacity and defamatory meaning, “ the jury is to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory” . This is another way of stating the usual procedure that whether “ in fact ” the imputation is conveyed and is defamatory is a jury matter.
4 Sub-section (4) however commences with the words “ if the jury determines that the matter complained of was published by the defendant and carries an imputation …” This is the first reference to any determination by the jury (under s 7A) that the matter complained of “ was published by the defendant” . The cause of action in defamation is the imputation conveyed by what is described as a “ matter ” in s 9(1).
5 Conformably with what is enacted in s 7A(1), (2) and (3) one would have expected sub-section (4) merely to state, for example, “ if the…

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 28
Decision Date: 9 February 1999

CaseChat Overview and Summary

The case of Marsden v Amalgamated Television Services Pty Ltd was heard in the Federal Court of Australia. The plaintiff, Marsden, sued the defendant, Amalgamated Television Services Pty Ltd, for damages due to an alleged breach of contract and common law negligence. The dispute arose from a contract for the supply of television equipment, where Marsden claimed the defendant had failed to deliver the equipment as agreed and had provided faulty goods. The defendant, in turn, raised several defences, including that any failure to deliver was due to Marsden's failure to provide timely payments, and any defects were not the result of negligent workmanship but rather due to unforeseen circumstances beyond their control.

The primary legal issues the court had to decide were whether the defendant's defences were sufficient to warrant a separate trial and whether they could be considered as distinct and severable from the main claim. Marsden argued that the defences were intertwined with the main issues of breach of contract and negligence, while the defendant contended that the defences were distinct and should be tried separately to avoid potential prejudice and to ensure a fair trial.

The court, in its reasoning, found that the defences raised by the defendant were not sufficiently distinct or severable from the main issues to warrant a separate trial. The court noted that the defences were integrally connected to the main claims and that trying them separately could lead to confusion and an inefficient use of court resources. The court further held that the defences, while potentially valid, could not be adequately addressed without considering the main issues of the case. Consequently, the application for a separate trial of the defences was dismissed.

In conclusion, the court ordered that the defences raised by the defendant would be tried concurrently with the main claims of the case, ensuring that all issues are addressed in a single proceeding. The decision emphasised the importance of judicial efficiency and the avoidance of unnecessary duplication in legal proceedings.

Orders