New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1185 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 30 November 1999 JUDGMENT DATE : 30 November 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 : Admissibility of evidence - proof of factual matters referred to in medical reports - Evidence Act 1995 (NSW) s 135 - T2757 ACTS CITED : Evidence Act 1995 (NSW) DECISION : See paragraphs 8 & 11 DLJT: 61 (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 TUESDAY 30 NOVEMBER 1999 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Admissibility of evidence - proof of factual matters referred to in medical reports - Evidence Act 1995 (NSW) s 135 - T2757) 1 HIS HONOUR: On the second day of the resumption of the hearing of this trial on 16 November 1999 I gave a ruling ([1999] NSWSC 1120: DLJT: 54) in connection with certain evidence then sought to be led from Mr Lyall who was asked for his description of the plaintiff's mood. The ruling was to the effect that persons other than the plaintiff could give evidence in relation to matters of fact upon which experts, doctors in this case, relied in forming their opinion. 2 Since 16 November that ruling has been availed of in relation to reputation witnesses, as I will call them, who are in a position to give evidence of their observations. It was availed of by those witnesses being asked directly as to their observations of the plaintiff's mood and demeanour before and after the relevant telecasts. It can be observed that that testimony was not used in any way for the plaintiff in the further elucidation of such expert evidence as was called by him from Dr Dent or Dr Toohey. 3 The plaintiff's sister presently is in the witness box. Evidence is sought to be led from her of facts relating to the plaintiff's family history and relationships, as identified especially at page 3 of Exhibit H being Dr Toohey's report of 6 May 1997. This area has also been referred to as set out in the "abridged" report of 18 May 1998 of Dr Dent (part of Exhibit F) which that witness disavowed and in his "unabridged" report Exhibit G of 18 May 1998. The reports of Mr Woods, clinical psychologist, Exhibit C contain material of like nature. 4 With respect to Dr Dent and Dr Toohey, in the case of the former with objection and in the case of the latter without, questions were asked to the effect: are the statements of fact in your report true to your knowledge and are the statements of the opinion based on those facts opinions that you hold? each receiving an affirmative answer. 5 Notwithstanding what Mr Hall has said, I do not understand the progress of the evidence in relation to either Dr Dent or Dr Toohey to have involved in any way a challenge to or an exploration of those statements in relation to family history in each specialist's reports with a view to impugning any opinion each of them may ultimately have arrived at. 6 The trend of the cross-examination and what it presently indicates as to the position of the defendant seems to me to be quite clear. On the issue of causation of any existing psychiatric condition, the critical factors are what have been identified as "stressors" and whether or not any found psychiatric condition is referable, in a causative sense, to the programs sued upon (his treatment ending in 1995) or in the case of Dr Toohey the program sued upon, or other matters which were identified in the cross-examination of Dr Dent by reference to his extended report (Exhibit G) and were identified in the cross-examination of Dr Toohey by reference to other material related to other publicity and events commencing with, as I understand it, the Grusovin statement in parliament. There is no apparent relevance therefore to this proposed line of evidence evidence-in-chief. If that is not correct, insofar as there has been an assertion of the correctness of the statement of unchallenged facts, well, the material is there. What part it will play in the wash up of the medical evidence remains to be seen. The cross-examination which focused the issues however, did not in my view demonstrate that those matters which are sought to be led from Mrs Paling in fact founded or constituted the basis for the opinions of Dr Dent or Dr Toohey. 7 Its probative value, on the assumption that it is relevant and admissible, therefore could only be considered to be at this stage marginal and the view fairly to be formed is that this would be a proper occasion for the exercise of the section 135(c) discretion, not based on unfair prejudice, not based on misleading or confusing evidence given the probative weight of what is sought to be called but the resulting in undue waste of time. 8 I propose to disallow the first component in Mrs Paling's evidence. 9 The second component is evidence sought to be led as to Mr Marsden's reputation in his extended family. Subject to the usual ground work being laid, that could hardly be the subject of complaint and I propose to allow it. 10 A third matter of evidence is this: evidence is going to be called to seek to establish hurt caused to the plaintiff by the impact of the programs on the plaintiff's family, evidence from family members as to observations of the plaintiff's reaction to the defamatory publication is admissible. This however appears to go further than that. It is evidence of presumably the manifestation of certain physical matters involving the plaintiff brought about by what is said to be the impact of the telecasts on other people. 11 I do not presently propose to rule upon the admissibility of that evidence. The statement of the basis on which it is proposed to be led points to certain "link" questions, if not matters of general principle. 12 Mr Hall has indicated that either evidence will be sought to be led of that kind from another witness or he will give due notice of his intention to lead it from this witness, Mrs Paling, when the occasion arises. Its determination will thus apply in either of those two events. *********** Last Modified: 12/09/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.