Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1186

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1186 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 1 December 1999 JUDGMENT DATE : 1 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 evidence - reputation - specific acts - T2810 Anderson v Mirror Newspapers (1986) 5 NSWLR 735 Bickel v John Fairfax & Sons Pty Limited (1981) 2 NSWLR 474 CASES CITED : Chappell v Mirror Newspapers Limited (1984) Aust Torts R 80,691 Hughes v Mirror Newspapers Limited (1985) 3 NSWLR 504 Plato Films v Speidel (1961) AC 1090 Scott v Samson [1882] 8 QBD 491 DECISION : See paragraph 15

DLJT: 62 (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 1 DECEMBER 1999

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (Admissibility of evidence - reputation - specific acts - T2810) 1 HIS HONOUR: The present witness, Mr Pickering, a former member of the Legislative Council, who enjoyed high office in Government in this State, is giving evidence for the plaintiff. I will categorise his evidence in general terms as that of a reputation witness. 2 Objection has been taken to evidence of the witness in the area of his knowledge of the plaintiff's reputation in the gay community. That is a very general description of the area. The objection arises and is to be understood in this context: the witness has not been questioned along the usual lines that lay the foundation for testimony that the plaintiff has a good reputation in the gay community. The witness has thus far given no evidence as to the sectors or the circles, his connection with them, his knowledge of the plaintiff within those circles thus leading to the usual question: what do you say as to the plaintiff's reputation at the relevant time in those circles? 3 As I understand it, the evidence sought to be led is to the following effect: that in 1994 the New South Wales Parliament passed anti vilification legislation. That legislation had been the subject of debate in the Parliament. It was passed in the Upper House by reason of this witness crossing the floor. On the day that happened there was in Macquarie Street a gathering of persons for present purposes assumed to be supporters of the legislation and no doubt including a substantial number of members of the gay community. 4 Upon the legislation being passed speeches were made to the gathering by certain people: by the witness Mr Pickering, who received applause and acclamation from the crowd, and by the plaintiff who, for present purposes, I gather, received applause and acclamation from the assembled gathering. 5 It is the witness' observation of that conduct of the crowd towards the plaintiff on that occasion in relation to the passing of that legislation that is to be relied upon as indicating to the witness the plaintiff's good reputation in the gay community. 6 Prior to reaching the point where the contentious line of questioning commenced leading to the objection, Mr Pickering had given evidence of personal representations made by the plaintiff to him in his ministerial capacity. That is, evidence of direct contact between the witness and the plaintiff. I mention this because it provides another discrete ground for objecting to the evidence insofar as evidence of a direct contact between the witness and the plaintiff is insufficient to establish the sector or circles. 7 Evidence of good reputation, of course, is given by persons of whom it can be said that they are in a position so to do by reason of their acquaintance with the circles or sectors in which the plaintiff has moved and in which he has what is known as a settled reputation. 8 The evidence of good reputation is provided by the response to the question in the usual form: what do you say as to the plaintiff's reputation in the circles in which you moved at the relevant time and the answer, for example, as has been given by some witnesses to date, "excellent". It is the answer of that nature to that question that constitutes the evidence of good reputation. 9 A line of authority was referred to which I can but summarise at this stage commencing with for present purposes Scott v Samson [1882] 8 QBD 491; Plato Films v Speidel (1961) AC 1090, decisions at first instance of Hunt J in Bickel v John Fairfax & Sons Pty Limited (1981) 2 NSWLR 474; Hughes v Mirror Newspapers Limited (1985) 3 NSWLR 504; Anderson v Mirror Newspapers (1986) 5 NSWLR 735 and the Court of Appeal in Chappell v Mirror Newspapers Limited (1984) Aust Torts R 80,691. 10 The cases establish the fundamental propositions: (1) that the plaintiff is entitled to lead evidence of good reputation; (2) that the good reputation of which the plaintiff is entitled to lead evidence is a settled reputation; (3) evidence of good reputation is evidence that the person enjoys a good settled reputation in the relevant sectors; (4) in chief, the plaintiff's witness is not permitted to (and indeed, given the issue there is no reason to develop the proposition that the plaintiff enjoys a good settled reputation in relevant sectors) to give evidence of specific acts or facts which may be illustrative of matters that in the end have gone to the establishment of that settled reputation. 11 In Speidel in the House of Lords Denning LJ at 1139 said "… the witness cannot be asked questions in examination-in-chief about particular facts so as to illustrate the plaintiff's good behaviour on particular occasions". The type of evidence that that principle would exclude would be for a witness to say that the plaintiff enjoys a good reputation in a particular sector because on such and such an occasion he did such and such a thing. 12 It is argued for the plaintiff that the evidence proposed to be led from Mr Pickering is not evidence of a particular fact illustrative of the plaintiff's "good behaviour", to use the words of Denning LJ. Rather, it is evidence of the conduct of others vis-a-vis the plaintiff evidencing his standing among those others. 13 For the defendant, it is submitted that the evidence of the conduct of others vis-a-vis the plaintiff, in the circumstances which have been outlined, is explicable only by reference to something the plaintiff has done; it being understood, for the purposes of the argument, that that which the plaintiff had done was to champion the cause ultimately reflected in the enactment of the anti-vilification legislation. That appears to me to be correct. The evidence would show in the end, because that could only be its logical import, that the plaintiff had done something in connection with the legislation, championing it, promoting it, which, upon its being enacted, brought it about that he received the acclamation of the gathered crowd. That to me is cognate with evidence to the effect that the plaintiff has a good reputation in the gay community because he championed anti-vilification legislation which would be evidence of a particular act or fact illustrative of the course of behaviour which underlay the evolution of the settled reputation. It is the settled reputation, as it has evolved, that is the subject of relevant and admissible testimony in chief. It is that reputation for the vindication of which the defamation action is used as the mechanism. Of course when a person does give evidence as to the plaintiff having a good reputation at the relevant time in the particular area, that person can be cross-examined, at the cross-examiner's peril, as to the basis for the witness's assertion that the reputation was good. A response by the witness that might outline the type of event to which the proposed testimony goes would be relevant and admissible in cross-examination. 14 I am not persuaded that the exclusion principle relating to particular acts or facts is limited to evidence directly as to what a plaintiff had done, as opposed to evidence of what others do, the more so when, as I am persuaded in this case, the evidence as to the conduct of the others is explicable only in terms of a specific act or fact involving the plaintiff. 15 Mr Pickering (I do not know at the moment), may well otherwise be able to give evidence in the usual way that the plaintiff enjoyed a good reputation in the gay community. If that is so, then the evidence will be led in the usual way, presumably based on the usual groundwork having been laid which, to the extent that there is only evidence as to representations having been made by Mr Marsden to Mr Pickering, has not. For the reasons I have stated I propose to disallow that line of questions. ***********