Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1189

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1189 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 2 December 1999 JUDGMENT DATE : 2 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 : T2912 - admissibility of evidence DECISION : See paragraph 8

DLJT: 66 (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

THURSDAY 2 DECEMBER 1999

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (T2912 - admissibility of evidence) 1 HIS HONOUR: It seems clear to me on authorities that have been exhaustively dealt with, including Hughes case, that the plaintiff can call evidence demonstrating a person's contemporaneous reaction to the publication of the matter complained of. 2 The witness (Mr Fitzgibbon) has given evidence that within days of the broadcast Councillor Carver stated to him words to the effect that the Council should review the relationship with Marsdens because of the possibility, and I say that subject to correction as to the detail of the evidence, that the relationship would be a source of embarrassment to the Council. That was within days of the broadcast. 3 On 27 August, three months after the broadcast, the same councillor, it is said, moved a Motion that the Council review its panel of solicitors. 4 An amendment was moved calling for expressions of interest in the Council's legal work. That amendment became the Motion, and it was carried. 5 As I understand it, the evidence would establish that historically, Marsdens had been engaged for three years in circumstances where within that period it would not otherwise have expected a review of its position. Next, there was a call for tenders; Marsdens tendered and apparently was successful. 6 This evidence certainly appears to me to be relevant to the issue that hitherto has been described as "shunning" but, as Mr Hall quite rightly put it, that word has become somewhat loosely used in this case to encompass the "hostile contemporaneous reaction". 7 Contemporaneity of course has been dealt with hitherto, and a lot of the evidence is concerned with events that happened months, indeed years, after the relevant broadcast. If events after the relevant broadcast, say in terms of months, on a rational basis can be linked back to a statement made within days of the broadcast, what happened some months later might be regarded as still an appropriate hostile reaction. 8 This evidence to me is relevant on that issue, is admissible on that issue; whether it proves very much on that issue in the end remains to be seen, and I will admit it. ***********