AMALGAMATED TELEVISION SERVICES PTY LIMITED v MARSDEN; AMALGAMATED TELEVISION SERVICES PTY LIMITED v MARSDEN [1997] NSWCA 17

AMALGAMATED TELEVISION SERVICES PTY LIMITED v MARSDEN; AMALGAMATED TELEVISION SERVICES PTY LIMITED v MARSDEN

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MASON P, HANDLEY JA and HUNT AJA 31 October 1997

[1997] NSWCA 17

Mason P. (on leave to appeal see p 63 of the transcript)

On my part, I would refuse leave because I do not wish to encourage this sort of application, firstly, because it should have been brought at the time of the original leave application; secondly, because I have a distinct impression that if this sort of debate had gone on with the detail that it had before Justice Levine, he would not have done what he did. And, thirdly, we have had a debate now and it is on record and we should allow the matter to be worked out in the light of what has gone on the record and not allow the process of this Court to get embroiled in interlocutory applications. This is one of many that is holding up a trial.

Handley JA. I must say that (for my part) had I been Justice Levine, and had the benefit of this argument, I would have taken the course Justice Hunt suggests, and struck out contextual imputation (4) with leave to replead. However, in the absence of a clear request either by the Judge, or by Mr Reynolds, for a meaning to be given to this contextual imputation, I can well understand why the Judge may have thought it was clear enough and just proceeded, in the course of a busy list, to deal with the arguments before him.

Hunt AJA. In my view, the judge should have struck the contextual imputation out in the first place because it is nonsensical — meaning that, in its present form, the imputation does not make sense. I agree with what the President has said. We should not encourage applications for leave when the matter can be dealt with again very easily in the Defamation List, seeing that there has now been, first, a concession that the imputation is nonsensical, and, secondly, an acceptance that the particulars which are now before us are different to those which the judge apparently had, if he had any at all. The matter should go back before the judge, so that he can deal with it. I think that it is fairly clear from what we have all said that this contextual imputation should have been struck out in the first place.