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,…

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: [2001] NSWSC 540
Decision Date: 27 June 2001

CaseChat Overview and Summary

The case of Marsden v Amalgamated Television Services Pty Ltd involved an application for indemnity costs by the plaintiff, Marsden, against the defendant, Amalgamated Television Services Pty Ltd. Marsden had previously brought an action against the defendant in the Federal Court of Australia, which was ultimately unsuccessful. The Federal Court had ordered that Marsden pay costs to the defendant pursuant to the Supreme Court Rules, Part 52A, Rule 22. Marsden sought an order for indemnity costs against the defendant, arguing that the defendant's conduct during the proceedings was vexatious, oppressive, or an abuse of the court process.

The central legal issue before the court was whether the defendant's conduct during the litigation was such that Marsden was entitled to indemnity costs under the applicable rules. Marsden argued that the defendant's conduct, including the filing of multiple frivolous interlocutory applications, had caused the plaintiff to incur additional costs that were not reasonably necessary. The defendant, on the other hand, contended that their conduct did not warrant indemnity costs and that Marsden's application should be dismissed.

The court considered the nature and conduct of the proceedings, focusing on whether the defendant's actions were vexatious, oppressive, or an abuse of the court process. The court found that the defendant's conduct during the litigation was indeed vexatious and oppressive, as evidenced by the filing of multiple interlocutory applications that lacked merit. The court determined that the defendant's conduct had caused the plaintiff to incur additional costs that were not reasonably necessary, thereby warranting an order for indemnity costs. The court thus granted Marsden's application for indemnity costs, directing that the defendant pay the plaintiff's costs of the application and the proceedings in the Federal Court.

Orders