Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 539

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 539 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 27 June 2001 JUDGMENT DATE : 27 June 2001

JOHN ROBERT MARSDEN (Plaintiff)

PARTIES : v

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

R Potter (Solicitor) (Plaintiff) COUNSEL : W H Nicholas Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On interest claimed under s 94 of the Supreme Court Act 1970 - T9374 - entry of judgment LEGISLATION CITED : Supreme Court Act 1970 CASES CITED : Vilo v John Fairfax & Sons Ltd & Anor [2000] NSWSC 1206 DECISION : See paragraphs 5 & 6

DLJT: 206 (Ex Tempore - Revised) [2001] NSWSC 539

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

JUSTICE DAVID LEVINE

WEDNESDAY 27 JUNE 2001

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (On interest claimed under s 94 of the Supreme Court Act 1970 - T9374 - entry of judgment) 1 HIS HONOUR: Interest in each action has been claimed under section 94 of the Supreme Court Act. The concept of interest in defamation actions, the availability of it on an award of damages, was first, to my recollection, dealt with in a principled way by the Court of Appeal in John Fairfax & Sons Limited v Kelly (1987) 8 NSWLR 131, see particularly the judgment of McHugh JA at 143 to 144. 2 In paragraph 5266 of my reasons for judgment, I set out the factors, in summary form, that led to the computation of the awards actually made. I did not, as there was no requirement upon me, (as there would have been no requirement upon a jury), differentiate in quantification terms between the various components of the award to which I refer in that paragraph. 3 Entitlement to vindication as of the date of publication, of course, is quite clear and it is clear from what I have said in the written reasons and what I said orally this morning that that was a substantial component of the award. 4 I am of the view that the proper approach in a case such as this, the amount and quantum being entirely a matter for me, that it accords with principle as to the continuum over which the initial loss has been sustained, (as well as with avoiding the artificiality of trying, for the purposes of interest, to allocate sums of money to particular components), in that followed by Simpson J in Vilo in John Fairfax & Sons Limited [2000] NSWSC 1206; that two percent represents a fair and just outcome as the appropriate rate to be applied. 5 Accordingly, in action number 20223 of 1995, I will award interest at two percent from 13 March 1995 to 27 June 2001, 2267 days, a total of $34,160.25. There will be judgment for the plaintiff in the sum of $309,165.25. 6 In action number 20592 of 1996, for the period 7 May 1996 to 27 June 2001, 1876 days, interest will be awarded in the sum of $25,698.63 and I enter judgment for the plaintiff in the sum of $275,698.63. ***********