Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 26

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 26 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223/95; 20592/96 HEARING DATE(S) : 03/02/99 JUDGMENT DATE : 4 February 1999

JOHN MARSDEN (Plaintiff)

PARTIES : v

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

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

Mr J S Wheelhouse Mr R Titterton (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Consolidation; Jury Act s 38(8); Interrogatories Jury Act 1977 (as amended) ACTS CITED : Defamation Act 1974 (as amended) Supreme Court Act 1970 DECISION : See paragraphs 10, 28, 29, 31 & 32

- 12 - DLJT: 1 (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 4 FEBRUARY 1999

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (Consolidation - Jury Act, s38(8) - Interrogatories) 1 HIS HONOUR: On 3 February 1999, four out of an anticipated eight preliminary matters were dealt with prior to the commencement of the hearing of the trial of these actions presently listed for Monday, 8 February. 2 The first matter can be broadly described as the question of consolidation. Separate actions were commenced by the plaintiff in relation to two publications, one in 1995 and one in 1996. It can generally be stated that the issues in each action are substantially the same in terms of pleaded imputations and contextual imputations, and the only issue for the jury presently in each case is whether or not the matter complained of carries the imputations pleaded by the plaintiff and whether they are defamatory. 3 Shortly stated, the defendant's position is that there should be empanelled a separate jury to make the determinations under s 7A of the Defamation Act in respect of each publication; otherwise all remaining issues for determination by the trial judge can be made by the actions being heard together. 4 It is argued that by the operation of s 16 (4)(a)(i), the definition of "proceedings", and s 88B of the Supreme Court Act, together with s 7A of the Defamation Act compels recourse to separate juries. I do not agree. Separate "actions" may well have been commenced but the "proceedings", in the end, will be constituted by the hearing together of the two separately instituted actions. That such a course can be taken and brought about is clear from the operation of SCR Pt 31 r 38. 5 Secondly, it was contended that where the question of fact as to the carrying of imputations is concerned with what I will describe as, "transient" publications, separate juries should be empanelled for each, particularly as in these proceedings the telecasts were approximately a year apart. It is suggested that otherwise the Court could not be satisfied that the jury deciding the question of fact in respect of the 1996 telecast was not affected by a residual impression of words or images arising from the telecast the subject of the 1995 proceedings (see Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 165-166 per Hunt CJ at CL). 6 The question of "capacity" to carry imputations and the question of whether "in fact" they are conveyed are quite separate, as Hunt CJ at CL makes clear. It has not been uncommon for juries in defamation actions, that is a single jury, to determine whether in fact several publications convey the individually relevant imputations. 7 The jury will receive instructions and directions as to the necessary separate consideration of each publication and will no doubt be addressed on the same subject matter by counsel. I see no risk in any sense of the kind adverted to by counsel for the defendant. 8 The consideration the jury will give to each publication can be regarded as far more focused than, for example, the consideration a jury gives in a criminal trial where multiple counts are involved and where that consideration is given after a body of evidence is called in relation to each count. 9 Being of the view therefore that there is no statutory requirement for the separate jury, I am not persuaded that there is any risk of injustice to either party, and particularly the defendant, by a course being adopted that conforms with the sensible and efficient conduct of the administration of justice in a case such as this. The course proposed by the defendant would be inimical in my view to the fair and efficient dispatch of the Court's business in litigation of this kind. 10 Accordingly I will order that the proceedings be heard at the same time. The evidence in one will be available as evidence in the other subject to any matter of relevance that may discretely arise and the determinations to be made under s 7A of the Defamation Act will be made by the one jury empanelled to hear and determine those issues in the proceedings. 11 The second matter was concerned with s 38 (8) of the Jury Act which provides: "Before the selection of the jury at a civil trial, the judge must, subject to the regulations: (a) direct the parties to the proceedings to inform the jurors on the panel of the nature of the action and the identity of the parties and of the principal witnesses to be called by the parties, and; (b) call on the jurors on the panel to apply to be excused if they consider that they are not able to give impartial consideration to the case". 12 No relevant regulations have been made. 13 On reading the section one can come to the view that it is fairly stark in its mandatory terms and there is "no way around it." I say that in the sense that in these proceedings, save for the tender of the video tapes of the telecasts, there will be no evidence called on the issue which the jury has to decide. 14 The position taken by the defendant is that there are no "principal witnesses" to be called by the parties on the issue that the jury has to decide and thus the jury should be informed of no more than the identity of the parties and the nature of the action. 15 It seems clear to me that the mischief at which the amendment is aimed is to obviate the situation whereby, in the performance of its function, the jury could be compromised by the late disclosure, for example, of a relationship between a juror and a party or a witness thereby necessitating the discharge of that jury. I do not see how the impartial consideration of the issues to be decided by the jury under s 7A of the Defamation Act can be affected by the failure to identify witnesses whom the jury will not hear and whose evidence will have nothing to do with the issue the jury has to decide. 16 The indication to the jury of the nature of the issue they have to decide in the defamation action brought by Mr Marsden against Channel 7 with respect to the two programs in my view provides a sufficient safeguard against perils for the obviation of which the amendment was made. 17 The impartiality of the jury's consideration of the issue they have to decide, as I have said, cannot be affected in any rational way by the identification of witnesses from whom it will not hear and whose testimony will in no way go to the issue it has to decide. 18 The identity of parties and particularly the plaintiff and the nature of the action and of the issue the jury has to decide whether the programs convey certain meanings and whether they are defamatory, in my view, will be sufficient. The plaintiff through its counsel has expressed anxiety to have identified the witnesses the defendant proposes to call. There is no present entitlement to that information. There is no entitlement I have ruled under s 38(8) of the Jury Act in any indirect way. 19 I add that for the jury to be provided with more information than that which I have outlined above and in particular the names of principal witnesses could be quite counterproductive to the objective sought to be attained by the amended legislation. The jury might well be led down the improper path of speculation as to what the conceivable connection is between identified witnesses and the issue it has to decide a fortiori when it will not have heard anything from the witnesses whose names have been announced. In my respectful view the legislature can be said to have failed to have taken into account the peculiarities that arise by reason of the operation of s 7A of the Defamation Act 1974 in effecting amendments to the Jury Act in this regard. 20 The third matter raised was not unconnected with the second and is not unconnected with an application, which at the time of preparing these reasons and delivering them, I anticipate will shortly be made on behalf of the plaintiff. The application dealt with on 3 February was to the effect that the defendant should be directed to present its case on justification in an orderly way comprising the grouping of witnesses complainant by complainant, as it were. Pausing there, that of course makes sense and would make the judge's task easier. The plaintiff however requires not only that orderly presentation but the list of witnesses and the order in which they will be called on the basis that this is in effect a criminal trial as to the issue of justification and one in which, unlike criminal proceedings in the strict sense, the plaintiff has not received the "full Crown brief", but rather, only, it is said, the barest outline by way of particulars of the facts, matters and circumstances upon which the defendant proposes to rely. 21 It is argued for the plaintiff that such directions could be given under SCR Pt 26 r 1 or Pt 36 r 4A (subject to the Evidence Act, one would assume). I propose to defer ruling in this regard until I have heard the substance of the anticipated application for the plaintiff. That application, as I understand it, will relate to the whole structure of the conduct of the trial in terms of the leading of evidence by each side upon certain issues not the least of which will be justification. I consider it appropriate that that aspect should be resolved, if it can be resolved, by a ruling of this Court before giving any directions as to the disclosure of identity of witnesses and the order in which they should be called. 22 The fourth matter related to interrogatories. On 11 December 1998 orders were made requiring the plaintiff to serve any further interrogatories by 5pm on the 17th of that month and the defendant to answer them by 5pm on 31 December. Other orders were made in relation to the defendant providing documents on discovery. A specific order in relation to 40 video tapes to be provided by noon on 14 December 1998 also was made. Liberty to apply on a half day's notice was granted and apparently has not been exercised otherwise than in the application I heard on 3 February. 23 Three sets of interrogatories were delivered by the plaintiff in each action. The first dated 9 December; the second 17 December - that is both within the time allowed by the order - and the third on 24 December. In relation to the first two sets of interrogatories the defendant has answered some and has objected to answering others. As I understand it, the position in relation to the third set of interrogatories is that no answers have been provided. 24 The defendant takes the approach that the interrogatories are "unnecessary" (see SCR Pt 37 rr 3 and 5) and submits that I should reject them on a global basis. I have been referred to various statements of disapprobation in relation to the delivery of prolix and what are said to be "unnecessary" interrogatories, which statements must of course be viewed in the context of the several cases to which I was referred: Packer v Australian Broadcasting Corporation (Master Hogan, Supreme Court of Act, 31 March 1993); Carnell v Spier (Miles CJ, Supreme Court VACT, 3 June 1997); Ryan v Federal Capital Press of Australia Pty Limited (Miles CJ, 13 November 1990); Aspar Autobarn Co-operative Society & Ors v Dovala Pty Limited (1987) 16 FCR 284 per Woodward J; Boxall v Mayne (Supreme Court of Tasmania, 29 May 1997) per Zeeman J; American Flange Manufacturing Co v Rheem Australia Pty Limited (No. 2) (1965) NSWR 193; and De Danske Hedeselkabet v KDM International Plc (1994) 2 Lloyds Law Reports 534. 25 The plaintiff relies upon the decision of Hunt J in Palmer v John Fairfax and Sons Limited (1986) 5 NSWLR 727 in support of the bulk of the interrogatories going to the issue of qualified privilege. 26 On the one hand, as Mr Wheelhouse quite correctly submitted, there must be some link between the interrogatories taken to be in their proper form (Sharpe v Smail (1975) 5 ALR 377) and some issue between the parties, and of course the interrogatories must not be fishing. 27 Taking a global approach I do propose to order the defendant to answer further interrogatories, but not all of those to which they hitherto have objected. The discovery process including interrogatories has been late and hurried. The trial will not unduly be disrupted by the defendant being required to provide further answers and such time should be available during the litigation - sufficient time should be available at least during the litigation of the fundamentally advocacy point under s 7A of the Defamation Act - to enable those advising the defendant to devote resources to providing further answers. 28 Accordingly in relation to the interrogatories delivered on 9 December the defendant in each action is directed to provide answers only to interrogatories 23, 30 and 31. 29 In relation to the 1995 action, and the interrogatories delivered on 17 December 1998 the defendant is directed to provide answers to interrogatories 1, 5, 6 and 7. I note that interrogatories 10, 11(c), 12 and 13 are not pressed. In the 1996 action the defendant is directed to provide answers to all interrogatories in respect of which objection hitherto has been taken. 30 The defendant has given discovery of documents. The examples shown to me were documents bearing numbers 19, 40 and 55 are on their face are meaningless and I am of the view that the plaintiff is entitled to interrogate the plaintiff as to the matters the subject of the disputed interrogatories to seek relevant admissions as to any one of the issues to which they can be taken to relate by reason of the discovery itself. In any event, as I understand it the defendant has given notice in correspondence of its intention to endeavour to ascertain the authorship of many of the documents referred to. 31 As to the interrogatories of the 24 December these essentially relate to video tapes the subject of the orders to which I have earlier referred and which apparently were only received in the physical sense by the plaintiff towards the end of December. Objection was taken by letter to the answering of any of those interrogatories. I am not persuaded that that objection is well founded or that it is inappropriate to order the defendant to answer the interrogatories delivered on 24 December and I will order the defendant to do so. 32 I am not prepared to accept the submission for the defendant that interrogatories can become less "necessary" the closer to the trial date they are delivered. Either they are necessary in the sense of being relevant and in proper form or they are not, in New South Wales. In my view they are necessary in that sense. As I have indicated the time available is somewhat flexible by reason of the jury involvement to the limited issue in this litigation. I propose therefore to order in the first instance that the defendant provide answers to the interrogatories by 5pm on Friday 12 February 1999. I grant liberty to apply on one day's notice in respect of any further order in relation thereto.