AMALGAMATED TELEVISION SERVICES PTY. LTD. v. MARSDEN (NO. 2) [2003] NSWCA 186

Reported Decision : 57 NSWLR 338

New South Wales Court of Appeal

CITATION : AMALGAMATED TELEVISION SERVICES PTY. LTD. v. MARSDEN (NO. 2) [2003] NSWCA 186 revised - 9/07/2003 HEARING DATE(S) : 08/04/03 JUDGMENT DATE : 9 July 2003

JUDGMENT OF : Beazley JA; Giles JA; Santow JA DECISION : 1. Set aside the order as to the rate of interest, the verdicts for $309,165.25 and $275,698.63 and the orders for costs made on 27 June 2001; 2. Order that there be new trials as to damages; 3. Appeal and cross-appeal otherwise dismissed; 4. Order that the new trials be expedited; 5. Order that the testimony of any witness examined at the trial before Levine J may be read from the notes of the testimony instead of the witness being again examined on that testimony, unless the judge conducting the new trials otherwise orders; 6. Order that the appellant pay 90 per cent of the respondent's costs of the appeal and cross-appeal, with liberty to apply within 28 days of judgment on the new trials for an order that the costs be on an indemnity basis; 7. Order that the appellant pay the respondent's costs of the trial as to liability and that the costs of the trial as to quantum be as ordered by the judge conducting the new trials, with liberty to apply in the Common Law Division within 28 days of judgment in the new trials for an order that the costs as to liability and quantum be on an indemnity basis; 8. So far as leave is necessary, grant leave to the respondent to proceed forthwith to assessment of the costs of the appeal and cross-appeal and the costs of the trial as to liability the suject of the preceding orders.

CATCHWORDS : Damages - compensatory damages - aggravated compensatory damages - exemplary damages - - Whether new trial necessary - which judge would hear new trial - Whether Court can re-open matter - Costs Supreme Court Rules, Pt 52 r 24, Pt 51 r23 LEGISLATION CITED : District Courts Act 1912, s145(3) Supreme Court Act, s101, s40, s51, s75A, s110K, s39 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 De L v The Director-General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207 Broome v Cassell & Co (1972) AC 1027 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Rookes v Barnard [1964] AC 1129 John v MGN Ltd [1996] 2 All ER 35 Hill v Church of Scientology of Toronto (1995) 126 DLR (4th) Whiten v Pilot Insurance Co (2002) 209 DLR (4th) 257 Performance Industries Ltd v Sylvan Lake Golf & Tennis Club Ltd (2002) SCC 19 Taylor v Beere [1982] 1 NZLR 81 Television New Zealand Ltd v Quinn [1996] 3 NZLR 24 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 CASES CITED : Harris v Digital Pulse Pty Ltd [2003] NSWCA 10 Backwell v "AAA" (1997) 1 VR 182 Musca v Astle Corp Pty Ltd (1988) 80 ALR 251 The Trustees of the Roman Catholic Church v Hogan (2001) 53 NSWLR 343 Holden v Wyong Shire Council (CA, 9 June 1988, unreported) Lockyear v Macready (1965) 66 SR (NSW) 369 Minister for Immigration and Multi-Cultural Affairs v Wang [2003] HCA 11 Rajski v Wood (1989) 18 NSWLR 512 at 520 Escobar v Spindaleri (1986) 7 NSWLR 50 Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 Steedman v Baulkham Hills Shire Council (1993) 31 NSWLR 562 Smith v New South Wales Bar Association (1992) 176 CLR 256 Idoport v National Australia Bank Limited [2000] NSWSC 1141 PARTIES : Amalgamated Television Services Pty. Ltd. (Appellant) John Robert Marsden (Respondent) FILE NUMBER(S) : CA 40499/01 COUNSEL : T.E.F. Hughes QC/K Rees (Appellant) B.W. Walker SC/M.B.J. Lee (Respondent) SOLICITORS : Malleson Stephen Jaques (Appellant) Marsdens Law Group (Respondent)