Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 126

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 126 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 25 February 1999 JUDGMENT DATE : 25 February 1999

JOHN MARSDEN (Plaintiff)

PARTIES : v

AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J

I Barker Q.C. G O'L Reynolds S.C. R G McHugh COUNSEL : (Plaintiff)

W H Nicholas Q.C. J S Wheelhouse R Titterton Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jacques (Defendant) CATCHWORDS : Exhortation to jury DECISION : See paragraph 3

- 2 - DLJT: 15 (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 25 FEBRUARY 1999

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (Exhortation to jury) 1 HIS HONOUR: Mr Barker of Queens Counsel for the plaintiff has drawn to my attention the decision of the Court of Criminal Appeal of 5 November 1998 in The Queen v Pantoja and the decision of that Court to the effect that, in the circumstances of that trial, where an indication has been sent to the trial Judge that the jury was unable to reach a verdict and that any further deliberation was futile, it was nonetheless appropriate that a direction in accordance with Black v The Queen (1993) 179 CLR 44, be given. 2 The note of Pantoja is in vol 5 Number 11 of the Criminal Law News but is sufficiently detailed to persuade me, leaving to one side any difference between a criminal and a civil trial, that the circumstances with which the Court of Criminal Appeal was concerned are starkly different to that confronting this Court. 3 Yesterday I did give an exhortation to the jury in the course of which from time to time I used expressions that are contained in what is known as the Black direction. This morning, subject to anything that is immediately brought to my attention by the jury upon its being brought into court, I merely propose to request that they give further consideration to the issues, bear in mind what I said to them yesterday after lunch, and to remind them that they are free to seek any further directions that might assist them.