New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 300 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 13 April 2000 JUDGMENT DATE : 13 April 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. R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Admissibility of evidence - malice - servant/agent of defendant - T5464 DECISION : See paragraph 8 DLJT: 137 (Ex Tempore - Revised) [2000] NSWSC 300 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE THURSDAY 13 APRIL 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Admissibility of evidence - malice - servant/agent of defendant - T5464) 1 HIS HONOUR: Exhibit AO which was admitted during the course of Mr Stals' evidence on 11 February is a video tape and transcript of an interview, the subject matter of which was an allegation of the plaintiff's involvement in a drug transaction of massive proportions. That that allegation was false has been already been acceded to by Mr Stals. 2 At present giving evidence is Mr O'Donnell, a producer at the relevant time with the defendant in relation to the "Witness" program, the subject of the second action. He has given evidence in relation to exhibit AO that the first time he saw that video tape was a month ago in the defendant's counsel's chambers. He has given other evidence that approximately 4 years ago, he was aware that Mr Quail had tapes. There is no evidence that, at any time prior to the event of a month ago, or going right back to February 1996, any tape in the possession of Mr O'Donnell was that which we now know as exhibit AO. 3 Mr O'Donnell has been asked a question, exhibit AO having been shown to him in court, that is directed to the subject matter of the effect AO would have had on the decision making process that led to the telecast of the "Witness" program. 4 In the light of the evidence as it presently stands, it is a question directed to a hypothetical situation and it is a question which particular 1.1 of the particulars of malice most recently delivered by the plaintiff to the defendant cannot accommodate. 5 The difficulty is that during the course of submissions I described as curiosity at least as to what connection, if any, existed between Mr Quail and the defendant at various points of time. It may be important to a case the plaintiff wishes to make either to answer an assertion of reasonableness until the section 22 defence or otherwise positively to assert malice in the defendant, to articulate something as to that curious or difficult area of the relationship of Mr Quail vis a vis Channel 7. 6 I do not know whether the situation in the end will be as simple as Channel 7 employed Mr A and Mr B in connection with the programme and Mr B withheld from Mr A vital information that could affect the opinion making process. If it was as simple as that, the position of the defendant would be interesting on the subject of both reasonableness and malice. 7 The situation in the end again is unknown to me and might well be that the relationship between Mr A and Mr B and the defendant was such that the defendant could not in any way be responsible for anything Mr B did by failing to give information to Mr A. (After amendment of the particulars and further submissions) 8 I am not presently persuaded, in the light of the amended particular, which reads: "The defendant through its employee or agent or servant Greg Quail deliberately or recklessly withheld evidence in its possession from those of its employees/servants/agents who produced the 'Witness' program which would have put those persons on notice that there were serious doubts about the honesty and truthfulness of Edward Stals who made allegations of underage sex in the 'Witness' program against the plaintiff" 9 that on the present state of all the evidence the question that gave rise to the dispute, if pressed, would elicit an answer evidencing a relevant state of mind in Mr O'Donnell as a servant or agent responsible for the telecast of the "Witness" program. 10 I disallow the question. 11 I propose to disallow the question because the structure of the case on malice or to meet the section 22 defence has not been raised in a way that would embrace what would otherwise be a hypothetical question. It may well be the plaintiff can particularise something. There might be information available that would enable it to do so; but particular 1.1 vis a vis Mr O'Donnell does not permit the asking of the question and I will disallow it. *********** 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. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.