Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 645

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 645 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 5 July 2000 JUDGMENT DATE : 6 July 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

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

B McClintock S.C. M R Hall (Plaintiff) COUNSEL : W H Nicholas Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Plaintiff's application to lead evidence from witnesses other than the plaintiff on question of damages DECISION : See paragraph 7

DLJT: 185 (Ex Tempore - Revised) [2000] NSWSC 645

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

JUSTICE DAVID LEVINE

THURSDAY 5 JULY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Plaintiff's application to lead evidence from witnesses other than the plaintiff on question of damages) 1 The plaintiff seeks leave to lead "fresh" evidence on the question of damages arising from events that have occurred after the close of the plaintiff's case. The evidence sought to be led is to be comprised of contemporaneous statements made by the plaintiff to the witness about the plaintiff's health, feelings and state of mind on the happening of the events in question and observations by the witness of the plaintiff's mood and demeanour, coupled with opinions the witness may express based upon what the witness saw, heard or otherwise perceived about Mr Marsden's reaction. 2 It is not proposed that Mr Marsden himself give evidence of these matters. The "events" in question can be exemplified by the service on the plaintiff of 25 January 2000 of the defendant's "Particulars of Truth (Admissions)" and the raising thereby of issues concerning the plaintiff's conduct in the context of alleged attempts to pervert the course of justice, a subject matter, which did not find its way into either of the programs sued upon, or otherwise in the plaintiff's case in chief (the plaintiff, it is to be remembered, electing not to give evidence). 3 Mr McClintock S.C. succinctly put his submissions in relation to these matters. Mr Nicholas Q.C. initially submitted that I would not entertain the application. I entertained the application, heard submissions in the end from both sides and indicated on 5 July 2000 that the application was dismissed. 4 I am not persuaded that any event occurring after the closure of the plaintiff's case (and ex hypothesi after publication of the matter complained of) which is said to cause hurt or harm is susceptible of the leading of evidence from third party witnesses on the question of ordinary compensatory damages. Neither Coyne v Citizen Finance Limited (1990-1991) 172 CLR 211 nor Clark v Ainsworth (1996) 40 NSWLR 463 constitutes authority for such a proposition. 5 Insofar as it is sought to lead such evidence on the issue of "aggravated" compensatory damages, the plaintiff is confronted by the following rulings: 9 February 1999 (NSWSC 28: DLJT 4), 26 October 1999 (NSWSC 1061: DLJT 48) and especially those of 14 December 1999 (NSWSC 1303: DLJT 73) and 6 June 2000 (NSWSC 517: DLJT 169) from which I am not prepared to depart and which hitherto have not been challenged. 6 I make the additional observations that material in the category of ordinary compensatory damages referred to above is of doubtful admissibility as part of the plaintiff's Case in Reply to the defendant's case. Insofar as the reopening of the plaintiff's case on damages would otherwise have to be sought, the above rulings, together with considerations of trial in progress management leading to finality would have to prevail, even if, as was suggested, the third party witness' additional testimony would not be unduly disruptive. 7 As stated on 5 July the plaintiff's application is dismissed. ***********