Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1221

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1221 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 13 December 1999 JUDGMENT DATE : 13 December 1999

JOHN MARSDEN (Plaintiff)

PARTIES : v

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

M Hall (Plaintiff) COUNSEL : J S Wheelhouse (Defendant) Marsdens (Plaintiff) SOLICITORS : Malleson Stephen Jaques (Defendant) CATCHWORDS : On tender of documents - general compensatory damages - aggravated damages - "ratings" - relevance - admissibility DECISION : See paragraph 17

DLJT: 68 (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 13 DECEMBER 1999

JOHN MARSDEN (Plaintiff)

v

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

Judgment (On tender of documents - general compensatory damages - aggravated damages - " ratings " - relevance - admissibility) 1 HIS HONOUR: The exercise has begun of tendering, at the close of the oral evidence in the plaintiff's case, documentary material. 2 In each action there has been tendered without objection, what I will describe as the usual interrogatories by a plaintiff of a media defendant, and its answers, as to either circulation figures or estimates of viewing audiences. 3 The plaintiff seeks to tender two documents described in the schedule of the plaintiff's tender bundle for his case in chief as follows: "5. Nielsen Media Research document entitled 'ATN 07/05/6' (D2 Doc 115)". "6. Documents produced by AC Nielsen in answer to a subpoena for production issued at the request of the plaintiff on or about 18 January 1999 (subpoenaed material -envelope marked 51)". 4 The issue to which the tender of this material is said to relate is the "extent of publication" by the defendant of the respective telecasts complained of. The "extent of publication", accepted doctrine indisputably permits, if the material is admissible, as relevant on the issue of general compensatory damages. 5 Its tender is not restricted to that; more importantly its tender is as relevant to aggravated (compensatory) damages. 6 I leave to one side any question of notice or the giving of particulars. 7 A plaintiff is entitled, as a general proposition, to increased compensatory damages or "aggravated damages", provided two fundamental requirements are met: one, it is in the end established that the matter in aggravation affected the relevant harm; and two, the matter, as conduct of the defendant, can be characterised as improper, unjustifiable or lacking in bona fides. 8 Turning to the first essential component: relevant harm. This material, it is said, is relevant to the increase in injury to the plaintiff's reputation. It is not advanced on any basis of increase to hurt feelings. 9 Focusing on the basis asserted (and making the great deal of assumptions in favour of the plaintiff as to the comprehensibility of the documents and what they can reasonably be understood as capable of establishing), on no rational basis could one come to the view that, by itself, whatever it is it is assumed the document establishes, that it constitutes matter that would increase the injury in the plaintiff's reputation, as was pointed out in submissions for the defendant. It would be saying no more than a newspaper on a particular day had a certain circulation in isolation, or it had a circulation larger in comparison with that of its competitors or other publications of the same date. Making the assumptions I have referred to, it can go no more than establishing the extent to which, without more, it is certainly, relevant to the issue of general compensatory damages. 10 Turning to the second matter, namely the attribution to the defendant of the qualities of lacking in good faith, unjustifiability or impropriety, the documents in themselves, (again making every assumption as to their comprehensibility), on no rational basis could be understood as establishing any one or more of those essential ingredients as against the defendant. 11 There is, however, the threshold problem to which I have adverted: namely what do the documents prove? Well their contents are there. On its face, each document contains columns and figures and what might be described as legends. But, by themselves, they do not establish anything that I can understand. For example in the document numbered 5 there are such expressions as "Hut Summary Report" "Dailies Plus" and "Preliminary Ratings". Leaving aside my ignorance of and that there is no evidence as to "Hut Summary Report" or " Dailies Plus," but not ignoring my general knowledge of the general use of the word "ratings", "Preliminary Ratings" is meaningless. 12 When one goes to the second page and there locates in the columns and numbers the word "Witness," there is next to it the figure "32" which seems to be higher in mathematical terms to the figures next to other words in the other columns. That may be a proportion of something, a score out of something; but, again, I do not know. Similar comments must be made in relation to the balance of document 5 insofar as it appears to deal with other cities in this country. 13 This is not an exercise in deliberate judicial adoption of some opacity in relation to this matter; as I have said, the word "Ratings" probably is understood generally in the community of which I am a member. What is not generally understood, what cannot be understood from its face and what certainly cannot be understood in the absence of evidence, is a document such as number 5 which, giving it the most favourable construction to the plaintiff, relates to "ratings", whatever they might be or mean in the context of the heads of relevance to which it is said this material relates. 14 Document 6 is constituted by material produced by AC Neilsen in answer to a subpoena. It really confronts the Court with the same difficulty. It covers a period of a year, according to the schedule to the subpoena: 30 June 1995 to 30 June 1996. A table, curiously headed "Prognosis 2.00", with a date 5 September 1997 thereafter, sets out dates ranging from 9 April 1996 to 25 June 1996. The program with which this action is concerned is clearly identifiable. 15 The next page, dealing with three cities in this country, has a heading "Total People". For a period of the year I have referred to there were "Tarps", a "%" sign and projections into the thousands. I do not know what "Tarps" is and projections, to my mind, at the very least, are estimates pointing to the future, rather than matters establishing historical facts. The incomprehensibility in the sense which I have used that expression, attends those pages of document 6. 16 Another part of document 6 relied upon seems to be concerned with Port Pirie/Broken Hill, with two headings "Average Audiences" and "Audience Compositions" one part of which deals with "hundreds of viewers", divided at least into gender. I suspect, but cannot be certain, that under the "Gender" heading might be an age-grouping. It is said to be "Survey Number 1 of 1996", whatever that means. There are other columns in the part relied upon dealing with hundreds of viewers headed "TNS", "CLD", "G/B" which I do not understand. 17 There are thus three bases for rejecting the tender. The first is the threshold one with which I have just dealt: namely this Court is incapable of coming to a rational view that permits it to understand this document, also to understand it, for example, in the context of s 55 of the Evidence Act. Second, neither is rationally capable of establishing anything other than extent of publication relevant to the issue of compensatory damages, (making all the assumptions to which I have earlier referred). Third, neither establishes anything as to the second ingredient in relation to aggravated compensatory damages, namely that which impugns the relevant conduct of the defendant. 18 Document 5 will be MFI 43 and Document 6 will be MFI 44. ***********