New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 377 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 8 May 2000 JUDGMENT DATE : 8 May 2000 JOHN MARSDEN (Plaintiff) PARTIES : v AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J at 1 I Barker Q.C. M R Hall (Plaintiff) COUNSEL : W H Nicholas Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On plaintiff's application to amend his particulars in relation to malice - T5861 DECISION : See paragraph 16 DLJT: 142 (Ex Tempore - Revised) [2000] NSWSC 377 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE MONDAY 8 MAY 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On plaintiff's application to amend his particulars in relation to malice - T5861) 1 HIS HONOUR: The formulation of the plaintiff's case on malice has undergone some changes between 7 April and today, 8 May. 2 On 5 May, in each action, a document headed "Particulars of Malice" was handed up to me and delivered to the defendant. Those documents have been further clarified by the events of this morning by reference to the Particulars of Malice in the first action. 3 The following matters are important to be kept in mind. First, the plaintiff is not seeking to amend his Reply in a substantive way. The plaintiff is seeking only to amend his case on malice in support of the substantive pleas in defeasance of the defences. Second, what I will describe as the "new material," refers to post publication events as evidencing, as at the time of the publication of the matters complained of, malice in the defendants, to be understood, at least, as an improper motive, namely to injure the plaintiff. 4 As was discussed on Friday, as a matter of principle, there is no reason at all why a plaintiff cannot rely upon post publication events in support of a case of malice to defeat privilege defences. Ultimately, of course, it will be a matter for the Court to be persuaded whether any post publication event, assuming it to be established as an objective fact, is rationally capable of proving anything directly, or by way of inference, as to the state of mind of the publisher at the time of the publication of the matter complained of. 5 That clear position is complicated in cases where the publisher is a corporation. A plaintiff is required to point to a servant or agent of the corporate defendant who relevantly is connected in terms of responsibility with the act of publication for which the defendant corporation is being sued. 6 The proposed particular D (a) on page 7 of the 8 May document identifies servants or agents of the defendant, particularly Mr Quail, who is still in-chief, and after subsequent clarification identifies the withholding, for a period of four years, of the material now known as exhibit AO from the police, material which it is said would have put the police on notice that there were serious doubts about the honesty and truthfulness of Mr Stals. 7 It is said that that conduct in withholding that material over that period was deliberate or reckless. Upon it being established it could go to prove something about the state of mind of the defendant through Mr Quail (or Mr Angus, being the other identified servant or agent) at the time of the publication of the relevant program. 8 In the end, I am satisfied that the plaintiff should be granted leave to make that amendment with that clarification. It will ultimately be a matter of submission, assuming certain things to have been proved, as to whether what I have described as that rational relationship between the post publication events and the state of mind of the servant or agent of the publisher, in fact, on the balance of probabilities, has been established. 9 Similar observations could be made in respect of subparagraphs (b) and (c) of paragraph D, and it seems to me, on considering their content now, that it will be a matter for submission. 10 Subparagraphs (d) and (e) are not without difficulty. In terms neither identifies any relevant servant or agent of the defendant at the time of either or both of the publications complained of in respect of whose state of mind the matters set out in subparagraphs (d) and (e) might be related back. 11 The conduct, being post publication conduct referred to in subparagraphs (d) and (e), of its very nature, would seem to point to forensic conduct this itself gives rise to a difficulty for a plaintiff in identifying that relevant servant or agent. Assuming, for the moment, that subparagraphs (d) and (e) are allowed to remain, it could hardly be said against the defendant, at the close of all the evidence, that through its legal advisers it had failed to adduce, from any relevant servant or agent, any matter that might have touched upon subparagraphs (d) and (e). That I understood to be a concern expressed by Mr Nicholas. 12 The position of the defendant that, even if no forensic disadvantage could be levelled against it by the absence of an identified servant or agent in these particulars, in my view, cannot be seen to be otherwise in danger of compromise to the point where the amendment should be refused. 13 As was remarked by Mr Nicholas, subparagraphs (d) and (e) might or might not, depending on how things progress, lend themselves to another component of a case the plaintiff might seek to make (aggravated damages). That is not part of a case in defeasance of the defence of privilege. 14 In the end, subparagraphs (d) and (e) I am not prepared to hold are futile. But it clearly must be recognised, the defendant having been protected in the terms that I have outlined, namely that the plaintiff will not be able to argue that the defendant did not deal with the matter in evidence absent the identification of its servants or agents, that there will be a substantial issue, in the end, as to whether subparagraphs (d) and (e) rationally establish that connection to which I referred. 15 The amendments set out in paragraph A on page 4 have been dealt with in evidence and the defendant cannot be, and does not say it is, prejudiced by them. 16 I will grant leave to the plaintiff to file in Court the Particulars of Malice in each action. 17 It is desirable that a separate, consolidated "Particulars of malice" in the 1996 action be handed up sometime during the course of the day. *********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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