Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1307

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1307 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 15 December 1999 JUDGMENT DATE : 15 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 : On admissibility of evidence - aggravated damages - T3343 DECISION : See paragraph 8

DLJT: 77 (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

WEDNESDAY 15 DECEMBER 1999

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (On admissibility of evidence - aggravated damages - T3343)

1 HIS HONOUR: The present tender of documents 52 and 53 in the list of plaintiff's tender documents, which have already been described, insofar as they are tendered on the issue of aggravated damages relating to increase in hurt to the plaintiff's feelings, will be excluded in accordance with the reasons delivered yesterday in judgment DLJT: 73 being that judgment in which the specific reference was made to Andrews. 2 The documents are also tendered on the issue of aggravated damages, and that component of such a claim relating to increase to the damage in the plaintiff's reputation, as I understand it, the conduct of the defendant, even if not hitherto particularised, which I gather to be the case, seems to be that of its asserted servant or agent, Mr McEvoy, referring Mr John Maynard to the Australian Broadcasting Corporation in some way to participate in a radio broadcast by that body. 3 The documents 52 and 53, being a police running sheet and a police statement of Mr McEvoy do not, of course, fall in the same category as documents 47, 48 and 49 which were admitted into evidence, in the generally same area, (see ruling presently likely to be DLJ 76 of yesterday), which included the defendant's own promotional material and answers to interrogatories. 4 The first document, 52, seems to be made up of compound hearsays, bearing in mind that on its face it seems to be a document of a Detective Senior Constable Roberts, entered by Senior Constable Halcro, purporting to report, amongst other things, statements made by a Mr Spicer of a report to him by Mr Maynard, by Mr McEvoy, and a statement from Mr McEvoy. 5 The conduct of a defendant in the restricted area of increased injury in the damage to reputation must be specified, must have the characteristics with which we are now familiar, and in this context must be conduct that can be described as the persistence in the libel. That conduct, namely persistence in the libel, must be such as to at least involve persistence in the substance of the libel. Whether or not it in any realistic way must be characterised as the persistence of the publication of the precise imputations, might be a matter for further consideration given the peculiar status of the imputations as a cause of action under the Defamation Act. 6 Document 52 does not even get to the point of saying anything about the conduct of the defendant or its servants in relation to the substance of the charges at least contained in the named program notwithstanding that the document refers to the plaintiff. 7 The same observation, in my view, can be made with respect to Mr McEvoy's statement of 2 September 1998. There is no other evidence, I add, in relation to any re-publication of the ABC of whatever it was that was apparently referred to by Mr Maynard at the instigation of Mr McEvoy. 8 The tender is rejected and the documents 52 and 53 will be MFI 63. ***********