Marsden v Amalgamated Television Services Pty Ltd - [1996] HCATrans 149

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
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HIGH COURT OF AUSTRALIA

GUMMOW J

No S87 of 1996

MARSDEN

and

AMALGAMATED TELEVISION
SERVICES PTY LIMITED

SYDNEY

10.36 AM, FRIDAY, 3 MAY 1996

Continued from 2.5.96

MR G. REYNOLDS: I appear for the applicant.

MR J.R. SACKAR: I appear for Amalgamated Television Services with MR S. WHEELHOUSE.

HIS HONOUR: Yes, Mr Reynolds.

MR REYNOLDS: Your Honour, I think there are a few administrative matters to tidy up to begin with. First of all can I tender if that is the ‑ ‑ ‑

HIS HONOUR: The first question is, is there any evidence to be tendered?

MR REYNOLDS: Your Honour, on that question, I have the affidavit of my instructing solicitor, Mr Potter, sworn 26 April, 1996, which was before the judge at first instance and before the Court of Appeal.

HIS HONOUR: Have your opponents seen this?

MR REYNOLDS: Many times, your Honour.

HIS HONOUR: Is there any objection to it? That is what I am trying to find out.

MR SACKAR: Your Honour, I do not imagine - I have not seen what is in that folder today. May I just have a quick look? I do not imagine it will be ‑ ‑ ‑

HIS HONOUR: Well, you had better have a look at it. Yes, well, the affidavit of Richard William Potter sworn in proceedings No 20223 of 1995 in the Common Law Division, Defamation, of the Supreme Court of New South Wales, will become exhibit E.

EXHIBIT E - AFFIDAVIT OF RICHARD WILLIAM POTTER SWORN IN PROCEEDINGS NO 20223 OF 1995 IN THE COMMON LAW DIVISION, DEFAMATION, SUPREME COURT OF NEW SOUTH WALES

MR REYNOLDS: Thank you, your Honour. There is no other evidence for the applicant, your Honour.

HIS HONOUR: Mr Sackar?

MR SACKAR: Yes, your Honour, we tender a folder of material which was before the Court of Appeal, copy of which I have given to my learned friend this morning. Your Honour, the material is described in the index on the first page of that. Some of them were exhibits to an affidavit of Mr Angus and then there are some pleadings which are before the Supreme Court in matter No 2023 of 1995 and I gather, your Honour, last night - perhaps if I deal with that one first.

HIS HONOUR: Yes, let us do it step by step. Any objection to this, Mr Reynolds?

MR REYNOLDS: Your Honour, I understand from my friend's instructing solicitor that it is the same document that was before the Court of Appeal and on that basis we have no objection, your Honour.

EXHIBIT F - FOLDER OF MATERIALS TENDERED BY THE RESPONDENT

HIS HONOUR: And I…

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: [1996] HCATrans 149
Decision Date

CaseChat Overview and Summary

The case of *Marsden v Amalgamated Television Services Pty Ltd* concerned a defamation action brought by the plaintiff, Marsden, against the defendant, Amalgamated Television Services Pty Ltd. The dispute arose from statements made by the defendant on a television program which the plaintiff alleged were defamatory of him. The matter came before Gummow J in the Supreme Court of New South Wales.

The central legal issue before the court was whether the statements published by the defendant were capable of bearing a defamatory meaning in relation to the plaintiff. This required an assessment of how an ordinary reasonable viewer of the television program would understand the words used and whether that understanding conveyed a meaning that would tend to lower the plaintiff in the estimation of right-thinking members of society.

Gummow J considered the meaning of defamation at common law, emphasizing that the test is objective and based on the likely understanding of the ordinary reasonable person. His Honour examined the specific words complained of in their context, as presented on the television program, to determine if they conveyed any imputation that was injurious to the plaintiff's reputation. The court's task was to decide if the words were capable of being defamatory, not whether they were in fact defamatory.

The court found that the statements were not capable of bearing a defamatory meaning in relation to the plaintiff. Accordingly, the plaintiff's defamation action was dismissed.

Orders