Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1188

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1188 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 2 December 1999 JUDGMENT DATE : 2 December 1999

JOHN MARSDEN (Plaintiff)

PARTIES : v

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

M Hall (Plaintiff) COUNSEL : W H Nicholas Q.C. J S Wheelhouse (Defendant) Marsdens (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : T2878 - admissibility - evidence of particular impact of imputations CASES CITED : Readers Digest Services Pty Limited & Anor v Lamb (1981-2) 150 CLR 500 DECISION : See paragraph 20

DLJT: 65 (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 2 DECEMBER 1999

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT ( T2878 - admissibility - evidence of particular impact of imputations ) 1 HIS HONOUR: Mr Heads is presently giving evidence. He is a sports writer and journalist who, for present purposes, can be taken as having had substantial experience with respect to the sport of rugby league. 2 He has given evidence to the effect that as at March 1995 the plaintiff had a good reputation and was seen as a strong and passionate contributor to that sport. 3 The circle established on the evidence appears to be founded upon regular contact with the plaintiff and knowledge of the plaintiff's involvement in the promotion of a Campbelltown rugby league team into what is described as the major league and the plaintiff's stance relating to themes relating to Campbelltown. 4 The question was asked of Mr Heads as follows: "Q. As a regular rugby league writer and based on your association with people concerned with rugby league in New South Wales, do you have a view of the ethical standards which people involved in rugby league should observe?" 5 Objection was taken to that question. 6 The witness had given evidence that his acquaintance with the reputation of the plaintiff was in the circle described by the witness, as "rugby league officialdom principally". In common with other evidentiary matters in this trial, the issue highlighted by the question and the objection taken to it focuses upon both principle and the state of the evidence. 7 For the plaintiff, it is contended that this evidence falls into the category of evidence held to be admissible by the High Court in Readers Digest Services Pty Limited and Another v Lamb (1981-2) 150 CLR 500. It is evidence also of the kind given by Father Confeggi and recorded at pages 2495-6 of the transcript of the proceedings on 25 November 1999. 8 Father Confeggi was asked by Mr Donohoe at line 38 on 2495 the question: "Q. Now by virtue of your training did you, yourself, have a view as to the ethical standards which Catholics should observe in relation to matters of homosexual intercourse with persons under the age of legal consent? A. Yes." 9 Father Confeggi gave evidence as to his knowledge of Mr Marsden not having been otherwise than a Catholic throughout his life, and then answered a series of questions founded upon the imputations the jury in this trial concluded were in fact carried by the program sued upon. 10 By way of example, on page 2496: "Q. I want you to assume that the first program imputed that Mr Marsden had had sexual intercourse with a 15 year old boy who was then under the influence of drugs which had been given to him by Mr Marsden, do you have a view as to whether or not that conduct meets the ethical standards which you regard as necessary to be observed by Catholics?