New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1122 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 16 November 1999 JUDGMENT DATE : 16 November 1999 JOHN MARSDEN (Plaintiff) PARTIES : v AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J P Donohoe Q.C. M Hall (Plaintiff) COUNSEL : R Stitt Q.C. W H Nicholas Q.C. (Defendant) Marsdens (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : See T2152 - admissibility of evidence - post-publication reputation ACTS CITED : Evidence Act 1995 (NSW) Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 CASES CITED : Hughes v Fairfax Newspapers Limited (1985) 3 NSWLR 504 Uren v John Fairfax & Sons Pty Limited (1965-1966) 117 CLR 118 DECISION : See paragraph 8 DLJT: 55 (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 16 NOVEMBER 1999 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (See T2152 - admissibility of evidence - post-publication reputation) 1 HIS HONOUR: Yesterday Mr Lyall was asked a series of questions recorded at page 2120 relating to the impact of the publications upon the plaintiff's reputation amongst members of the legal profession. The questions and answers set out at lines 49 to 56 on page 2120 were struck out by me (see page 2122.50), by reason of the observations of Hunt J in Hughes v Fairfax Newspapers Limited (1985) 3 NSWLR 504. 2 Mr Donohoe has indicated that it is his intention and wish to ask Mr Lyall when he returns to the witness box a question to the effect: What is the plaintiff's reputation now? Mr Donohoe's arguments have been recorded but they involve, shortly stated, an analysis of what Hunt J said in Hughes that would lead to the conclusion that nothing his Honour there said at pages 512 to 513 can be understood as excluding as a matter of principle, or as a matter of logic in terms of relevance under the Evidence Act, evidence of this kind. The more so, it is said, when the submission is made that conformably with what his Honour said, it was open to a plaintiff to call evidence of being shunned, that, it is argued, being consistent with the reputation of the plaintiff being damaged. A phrase I use advisably. 3 The matter was dealt with with remarkable brevity yesterday. 4 I am of the view that the substance of the question sought now to be asked is the same as that was put in the series yesterday. It is desirable to repeat what Windeyer J said in Uren v John Fairfax and Sons Pty Ltd (1965-6) 117 CLR, 118 at 150 as to what the rationale and character of damages in a defamation action are. 5 His Honour said in a passage well-known and where juries are still involved, paraphrased for the purposes of summing-up the following: "When it is said that in an action for defamation damages are given for an injury to the plaintiff's reputation, what is meant? A man's reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot be measured as harm to a tangible thing is measured. Apart from special damages strictly so called and damages for a loss of clients or customers, money and reputation are not commensurables. It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money". 6 It can be seen from what his Honour said that the focus, as Mr Nicholas put it, is the commission of the tort and the time of the commission of the tort, the commission of which at the time it happens then injures a plaintiff in his reputation. It is because that has happened that compensation operates in the way Windeyer J describes it. The temporal notion is emphasised by McHugh J in Carson v John Fairfax and Sons Limited (1993) 178 CLR 44 at page 101. 7 Hunt J in Hughes was at pains, as his Honour said, to ensure that his Honour's judgment in that case did not become authority to support the admissibility of evidence which in my view is captured by what his Honour there said. 8 Whilst the decision I gave yesterday was a ruling on evidence and it is open to me upon further submissions to reconsider or consider afresh any ruling I have given, I am not persuaded that when one takes into account the rationale of the function of damages in defamation actions enunciated by Windeyer J in the Uren case that there is a basis in principle or relevance for admitting it as submitted by Mr Donohoe and I disallow the question. *********** Last Modified: 11/22/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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