Marsden v Amalgamated Television Services Pty Ltd - [1999] NSWSC 26

CITATION: Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 26

CURRENT JURISDICTION: Common Law

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

HEARING DATE(S): 03/02/99

JUDGMENT DATE:
4 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: Consolidation; Jury Act s 38(8); Interrogatories

ACTS CITED: Jury Act 1977 (as amended)
Defamation Act 1974 (as amended)
Supreme Court Act 1970

DECISION: See paragraphs 10, 28, 29, 31 & 32

- 12 -

DLJT: 1
(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
THURSDAY 4 FEBRUARY 1999

JOHN MARSDEN
(Plaintiff)

v
AMALGAMATED TELEVISION SERVICES PTY LIMITED
ACN 000 145 246
(Defendant)
JUDGMENT (Consolidation - Jury Act, s38(8) - Interrogatories)
1 HIS HONOUR: On 3 February 1999, four out of an anticipated eight preliminary matters were dealt with prior to the commencement of the hearing of the trial of these actions presently listed for Monday, 8 February.
2 The first matter can be broadly described as the question of consolidation. Separate actions were commenced by the plaintiff in relation to two publications, one in 1995 and one in 1996. It can generally be stated that the issues in each action are substantially the same in terms of pleaded imputations and contextual imputations, and the only issue for the jury presently in each case is whether or not the matter complained of carries the imputations pleaded by the plaintiff and whether they are defamatory.
3 Shortly stated, the defendant's position is that there should be empanelled a separate jury to make the determinations under s 7A of the Defamation Act in respect of each publication; otherwise all remaining issues for determination by the trial judge can be made by the actions being heard together.
4 It is argued that by the operation of s 16 (4)(a)(i), the definition of “proceedings”, and s 88B of the Supreme Court Act, together with s 7A of the Defamation Act compels recourse to separate juries. I do not agree. Separate “actions” may well have been commenced but the “proceedings”, in the end, will be constituted by the hearing together of the two separately instituted actions. That such a course can be taken and brought about is clear from the operation of SCR Pt 31 r 38.
5 Secondly, it was contended that where the question of fact as to the carrying of imputations is concerned with what I will describe as, "transient" publications, separate juries should be empanelled for each, particularly as in these proceedings the telecasts were approximately a year apart. It is suggested that otherwise the Court could not be satisfied that the jury deciding the question of fact in…

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.

Keep reading for free

Create a free CaseChat account to read Marsden v Amalgamated Television Services Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1999] NSWSC 26
Decision Date: 4 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, brought proceedings against the defendant, Amalgamated Television Services Pty Ltd, regarding a dispute related to the consolidation of multiple claims. Marsden sought to consolidate various actions that had been initiated against the defendant into a single proceeding. The defendant contested this consolidation, arguing that it would not be appropriate under the provisions of the Jury Act. The central legal issue that the court needed to address was whether the consolidation of these claims was permissible under the relevant statutory framework, specifically section 38(8) of the Jury Act.

The court examined the statutory language of section 38(8) of the Jury Act and assessed whether the consolidation of Marsden's claims would comply with the requirements set out in the statute. Additionally, the court considered whether the consolidation would unduly prejudice the defendant's rights to a fair trial and if it would align with the principles of justice and efficiency in the judicial process. The court also evaluated the use of interrogatories as a procedural tool to gather necessary information for making an informed decision on consolidation.

In its judgment, the court determined that the consolidation of the claims was not permissible under section 38(8) of the Jury Act. The court found that the consolidation would potentially prejudice the defendant's right to a fair trial and did not align with the principles of justice and efficiency as envisioned by the statute. The court also concluded that the interrogatories submitted by the plaintiff did not sufficiently justify the consolidation of the claims. Consequently, the court dismissed the plaintiff's application for consolidation.

Orders