New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1303 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 14 December 1999 JUDGMENT DATE : 14 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 : Admissibility of documents 34, 35, 39, 40 & 41 - T3323 - aggravated damages - no evidence in chief from plaintiff DECISION : See paragraph 8 DLJT: 73 (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 14 DECEMBER 1999 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Admissibility of documents 34, 35, 39, 40 & 41 - T3323 - aggravated damages - no evidence in chief from plaintiff) 1 HIS HONOUR: The present category of documents is made up of documents 34, 35, 39, 40 and 41. Their tender provides an opportunity now in my view for indicating the conclusion reached in the light of submissions as to evidence available to be tendered on the issue of aggravated damages in the absence of oral evidence from the plaintiff. 2 I will come straight to the point. In the less than ideal circumstances that attend the resolution of this important issue in this case, the principal authority relied upon for the plaintiff is the judgment of Glass JA in Andrews v John Fairfax (1980) 2 NSWLR 225 at 250. I will simply say at this stage that I am not persuaded that what his Honour there says can be availed of in the way counsel for the plaintiff seeks to so do. It is to be borne in mind that his Honour was considering aggravated damages in the context of an appeal from a trial in which the plaintiff had in fact given evidence. Second, it is important to bear in mind that what his Honour there says follows an extract from the speech of Lord Reid in Cassell Limited v Broome and his Lordship's remarks about conduct of the kind there impugned, which covers a general range of behaviour that might be amenable to an award of aggravated damages. Bearing in mind those two contextual components, his Honour remarks at point C on page 250: "But I see no reason why this should in point of evidence apply to externally verifiable conduct, the effect of which on the plaintiff can be inferred by the jury without precise evidence as it could have been done at common law." 3 His Honour is not saying in terms "without evidence", he is saying without precise evidence and in the context of an appeal from a case in which the plaintiff had given evidence, dealt with by, for example, Hutley JA in paragraph 49 at page 243 and paragraph 53 at page 244. 4 A very important concept in aggravated damages constituted by an increase to the hurt of the plaintiff is that the personal hurt is subjective. I find it difficult to appreciate a situation where, in the absence of a plaintiff giving evidence of his being hurt in the first instance by a publication, evidence could be admitted to show an increase in that hurt from sources other than the plaintiff, to put it starkly, when the plaintiff has said nothing about being hurt in the first place. I do not see the judgment in Andrews providing authority for someone else saying that that on which the plaintiff is silent was exacerbated. 5 The documents tendered, one would have thought, as indeed was submitted by Mr Nicholas, quintessentially would have been the subject of oral testimony by a plaintiff. 6 On the subject of his already established hurt being increased by the conduct the plaintiff asserts is evidenced by this correspondence, as a matter of principle on which I am now being constrained to give my view, this evidence is inadmissible. 7 I will add this, I am not persuaded by the submissions of Mr Nicholas that the correspondence itself, whether addressed to Mr Marsden care of Corrs or addressed to him care of his firm, is incapable in any rational way, of being the subject in due course, provided other things are of course established, of being found to be evidence of improper, unjustifiable or conduct otherwise lacking in good faith. There is no need to reach that point by reason of the threshold matter of principle upon which I have decided to exclude this material. 8 The documents 34, 35, 39, 40 and 41 will be MFI 48. *********** Last Modified: 06/26/2000 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.