Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1135

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1135 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 15 November 1999 JUDGMENT DATE : 15 November 1999

JOHN MARSDEN (Plaintiff)

PARTIES : v

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

P Donohoe Q.C. M Hall COUNSEL : (Plaintiff)

W H Nicholas Q.C. (Defendant) Marsdens (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On admissibility of evidence - T2120.50 - reputation evidence CASES CITED : Hughes v Mirror Newspapers (1985) 3 NSWLR 504 Readers Digest Services Pty Ltd v Lamb [198-2] 150 CLR 500 DECISION : See paragraph 5

DLJT: 52 (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

MONDAY 15 NOVEMBER 1999

JOHN MARSDEN (Plaintiff)

v

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

Judgment (On admissibility of evidence - T2120.50 - reputation evidence) 1 The following series of questions and answers were given by Mr Lyall in examination-in-chief: "Q. What impact did that have upon Mr Marsden's reputation, amongst members of the legal profession? A. It is very hard to say generally but I think it had an impacts (sic) amongst the members of the profession. Q. What was that? A. They thought less of him". 2 The plaintiff, it being expressly disavowed that the evidence was tendered on the basis of Readers Digest Services Pty Limited v Lamb ([1981-2] 150 CLR 500 at 507 per Brennan J), the question arises as to its admissibility in accordance with established principles in relation to reputation evidence. 3 For the defendant it was argued that the tendered testimony falls within none of the categories of admissible evidence in relation to the plaintiff post-publication as dealt with by Hunt J in Hughes v Mirror Newspapers (1985) 3 NSWLR 504 at 512-3. 4 It is clear from what Hunt J said at 513E-F that the admissibility of evidence of the kind with which I am concerned is not justifiable in relation to the plaintiff's reputation "after" publication, if it goes only to the status of that reputation post-publication as opposed to the particular circumstances of evidence of third party utterances about the plaintiff. 5 By reason of the observations of Hunt J just referred to and their applicability to the questions and answers set out above, I am of the view that the evidence is inadmissible and the evidence tendered will be struck out. ***********