Marsden v Amalgamated Television Services Pty Ltd

[2001] NSWSC 540

CITATION:

Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 540

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 20223 of 1995; 20592 of 1996

HEARING DATE(S):

27 June 2001

JUDGMENT DATE:

27 June 2001

PARTIES :

JOHN ROBERT MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	R Potter (Solicitor) (Plaintiff) W H Nicholas Q.C. J S Wheelhouse (Defendant)
SOLICITORS:	Phillips Fox (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	On application for indemnity costs in accordance with SCR Pt 52A r 22 - and orders of Court - T9388
LEGISLATION CITED:	Defamation Act 1974 Supreme Court Rules
CASES CITED:	Hillier v Sheather (1995) 36 NSWLR 414 Nobrega v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [1999] NSWCA 133 Pfeiffer v Rogerson [2000] HCA 36 Whitehouse Properties Pty Ltd v Bond Brewing (1992) 28 NSWLR 17
DECISION:	See paragraph 20

DLJT: 207

(Ex Tempore - Revised)

[2001] NSWSC 540

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

No. 20223 of 1995

No. 20592 of 1996

JUSTICE DAVID LEVINE

WEDNESDAY 27 JUNE 2001

JOHN MARSDEN
(Plaintiff)

v

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

JUDGMENT (On application for indemnity costs in accordance with SCR Pt 52A r 22 - and orders of Court - T9388)

1    HIS HONOUR: On 25 February 1997, the plaintiff, pursuant to SCR Pt 22, made an offer of compromise in each action in the sum in each case ($250,000), as it turns out, no less favourable to him in terms of the verdict that I entered. The offer was not accepted.

2    The plaintiff seeks indemnity costs in accordance with SCR Pt 52A r 22 as from the date of the offer.

3    The defendant's position is this: first, that the verdict and consequential judgment did not relate to any “claim” to which the offer related in each case and, thus, there is nothing of which, in effect, I could be seized in considering the application. Alternatively, if I were to take the contrary view, as I understand it, the conduct of the litigation in the end was not unremarkable in the light of the issues and I would “otherwise order” as the subrule provides.

4    That subrule provides that I must so order otherwise the consequence would follow that the plaintiff would be entitled to indemnity costs.

5    At the time of the offer, namely 25 February 1997 - and I will use Today Tonight as the vehicle for these reasons, that is the first action - the imputations pleaded in the Second Further Amended Statement of Claim filed on 21 June 1996 were as follows:

“(a) The plaintiff has committed criminal offences by having sexual intercourse with 12 boys who were under the age of 18, knowing them to be under the age of 18.
(b) The plaintiff has committed criminal offences by having sexual intercourse with 12 boys who were under the age of 18, with reckless indifference as to whether they were under the age of 18.
(c) The plaintiff has committed criminal offences by having sexual intercourse with 12 boys who were under the age of 18.
(d) The plaintiff has committed criminal offences by having sexual intercourse with boys who were under the age of 18, knowing them to be under the age of 18.
(e) The plaintiff has committed criminal offences by having sexual intercourse with boys who were under the age of 18, with reckless indifference as to whether they were under the age of 18.
(f) The plaintiff has committed criminal offences by having sexual intercourse with boys who were under the age of 18.
(g) The plaintiff has committed a criminal offence by having sexual intercourse with a male prostitute who was under the age of 17, knowing him to be under the age of 18.
(h) The plaintiff has committed a criminal offence by having sexual intercourse with a male prostitute who was under the age of 17, with reckless indifference as to whether he was under the age of 18.
(i) The plaintiff has committed a criminal offence by having sexual intercourse with a male prostitute who was under the age of 17.
(j) The plaintiff has committed a criminal offence by having sexual intercourse with a male prostitute who was under the age of 17 having procured his consent to such intercourse by administering drugs and alcohol to him”.

6    The Defence to that Second Further Amended Statement of Claim, conformably in structure with defences that thitherto have been filed, pleaded privilege and contextual truth. The contextual imputations (paragraph 3) are:

“(i) the plaintiff engaged in the criminal act of sexual intercourse with young boys who he knew to be under the age of 18;
(ii) the plaintiff engaged in sexual intercourse with young boys with reckless indifference as to whether they were under the age of 18;
(iii) the plaintiff engaged in sexual intercourse with young boys who were under the age of 18;
(iv) the plaintiff procured the services of young boys who were under the age of 18 and were working as prostitutes in Kings Cross for the purpose of having sexual intercourse with them; and
(v) the plaintiff was a pederast”.

7    The pleadings that went to trial were constituted by the Third Further Amended Statement of Claim filed on 16 February 1999 which pleaded the series of imputations that went to the jury and the Third Further Amended Defence to the Third Further Amended Statement of Claim which pleaded contextual imputations to which I will return in a moment.

8 As far as I can ascertain in the circumstances, it was not until 4 May 1998 and the filing of a Further Amended Defence to Further Amended Statement of Claim that the defendant pleaded truth in accordance with s 15 of the Defamation Act 1974. Up to that point of time, the defendant had pleaded privilege and contextual truth. The pleading of section 15 in that pleading did not relate to all of the plaintiff's imputations but to six of them and pleaded a contextual imputation, namely, the plaintiff engaged teenage boys who were under the age of 18 and who were working as prostitutes in Kings Cross for the purpose of having sexual intercourse with them.

9    The Third Further Amended Defence to the Third Further Amended Statement of Claim pleaded a series of contextual imputations:

“(a) the plaintiff engaged teenage boys who were under the age of 18 and were working as prostitutes for the purpose of having homosexual intercourse with them;
(b) the plaintiff has committed criminal offences by having sexual intercourse with boys who were under the age of 18, with reckless indifference as to whether they were under the age of 18;
(c) the plaintiff committed criminal offences by engaging in homosexual intercourse with teenage boys who were under the age of 18 years;
(d) the plaintiff has committed a criminal offence by having sexual intercourse with a male prostitute who was a 15 year old boy knowing him to be under the age of 18;
(e) the plaintiff has committed a criminal offence by having sexual intercourse with a male prostitute who was a 15 year old boy with reckless indifference as to whether he was under the age of 18.
(f) the plaintiff has committed a criminal offence by having sexual intercourse with a male prostitute who was a 15 year old boy”.

10    That was not the final pleading.

11    The final pleading both for the plaintiff and the defendant was in exactly the same terms as the antecedent pleadings, except that it took account of the amendments made consequent on a decision of the High Court in Pfeiffer v Rogerson [2000] HCA 36.

12    The substantive difference between Today Tonight and Witness for the purpose of this ruling is that Witness included what I will describe as the Les Murphy/Anita Cobby imputation.

13    Since the time that the offer of compromise was made in each case, there have been two constants in this litigation. First, the defence of privilege and, second, the defence of truth, either pleaded contextually, substantively or both, depending upon the state of the pleadings.

14 As at trial, where the defence of truth was under both s 15 and s 16, the material relied upon by the defendant for both defences was the same. At trial, the dimensions of the second constant, namely truth in one form or another, exceeded that which would have been anticipated in 1997, principally by reason of the application to amend which was dealt with in [1999] NSWSC 619: DLJT 44, 23 June 1999.

15    The substance of the claim and its anticipated litigation never changed in terms of the real issues. The progress of the pleadings exemplified above indicates, in effect, each side “adopting’ the other’s meanings.

16    In the course of the judgment I delivered this morning, I have remarked, I believe in several places, on the formal legal construct that is the s 9 imputation. The making of the application and the submissions advanced in opposition to it, I acknowledge, raise important matters of principle in relation to pleading in defamation actions, to litigation of the real issues in defamation actions, to the policy behind and the risks associated with offers of compromise.

17    I have had regard in the time available to me to statements made in the Court of Appeal in Whitehouse Properties Pty Ltd v Bond Brewing (1992) 28 NSWLR 17 at 21 per Handley JA, particularly the observations of the Kirby P in Hillier v Sheather (1995) 36 NSWLR 414 at 422 and Nobrega v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [1999] NSWCA 133.

18    By reason of the conclusion to which I have come that the “claim” in substance, as opposed to questions of technical form, has remained in place since the time of the offer of compromise, I propose to allow the application, not being persuaded as to the second leg of the defendant's argument that there are grounds that I should order otherwise.

19    In each action, I order the defendant to pay the plaintiff's costs (a) on a party and party basis up to 25 February 1997, (b) on an indemnity basis thereafter.

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Last Modified: 06/29/2001