Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 312

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 312 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 7 April 2000 JUDGMENT DATE : 7 April 2000

JOHN MARSDEN (Plaintiff) PARTIES : v

AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J at 1

I Barker QC M R Hall (Plaintiff) COUNSEL : W H Nicholas QC J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Admissibility - evidence to rebut "reasonableness" "deliberately misleading" footage - T5279. CASES CITED : Morgan v John Fairfax & Sons Ltd (No.2) (1991) 23 NSWLR 374; Wright v Australian Broadcasting Commission (1977) 1 NSWLR 697. DECISION : See paragraph 16

DLJT: 135 (Ex Tempore - Revised) [2000] NSWSC 312

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

FRIDAY 7 APRIL 2000

JOHN MARSDEN (Plaintiff)

v

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

Judgment: (Admissibility - evidence to rebut "reasonableness" "deliberately misleading" footage - T 5279) 1 Mr Hall, the executive producer of "Today Tonight" has been shown in the course of cross-examination part of exhibit A, a videotape of that program and, in particular, that segment represented by lines 94 to 115 of the agreed transcript. 2 That segment deals with a search of the plaintiff's home by the police, the possession by the defendant of documents in connection with that event, including statements by a Superintendent Bob Small, and what appears to be a brief meeting with Superintendent Small in the street between him and the reporter, and the camera crew obviously, in which Mr Quail says: "I would like to talk to you about an incident last year in May where I believe you were involved in a search of the property of John Marsden, a member of the Police Board." 3 To which Mr Small replies: "I have no comment to make about that at all". 4 It is contended for the plaintiff that that presents to the viewing public an image that, as between Mr Small and the reporter and the defendant, there is detachment, or, as it was expressed by Mr Barker, they were at "arm's length"; whereas on the evidence elicited from Mr Hall, it is the case that at the time of that confrontation in the street, Superintendent Small and Channel 7 had not been at arm's length, and that the impression conveyed by the telecast was misleading, and deliberately so. 5 Prior to objection being, taken the essence of the plaintiff's position had been put to Mr Hall and dealt with by him in a series of questions and answers as follows: