Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1302

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1302 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 22 to 33 - T3323 DECISION : See paragraph 5

- 2 - DLJT: 72 (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 22 to 33 - T3323)

1 HIS HONOUR: Documents 22 to 33 relate to what is called promotional material. 2 It is the plaintiff's case as I understand it, that there has been no retraction or apology by the defendant in respect of the publications. By itself, of course, that is neither here nor there. If the conduct relied upon amounted to a failure to retract or apologise, and is improper, lacking in good faith or unjustifiable, that is a second step. The third step is that that impugned conduct must have been shown to have increased the plaintiff's hurt to feelings and thus, in a very simplistic way, a case for aggravated damages would in the normal course be made out. 3 The material tendered I have understood to go to the propriety of the conduct of the defendant in failing to apologise, which for present purposes I will assume is in fact the case. I do not see how the limitation of the tender of the promotional material for that purpose avoids the matters that were the subject of my earlier ruling. 4 Fundamental to the ingredients of a case for aggravated damages to which I have referred is the plaintiff's awareness of it. There is no independent evidence so far as I am aware of any connection between the plaintiff and the promotional material probative of this issue. There is no evidence of which I am aware that links anything in terms of the subjective reaction in the plaintiff to what it is this promotional material shows. There is no evidence or basis for me to come to a view in relation to an asserted failure to apologise that any such failure, if there in fact be one, is amenable to the characterisation of impropriety, lacking in good faith or unjustifiability merely by reference to the defendant having promoted the program. 5 The documents (22 to 33) will be MFI 47. ***********