Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 121 (19 February 1999)

Last Updated: 26 February 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 121

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20223 of 1995

20592 of 1996

HEARING DATE{S): 19 February 1999

JUDGMENT DATE: 19/02/1999

PARTIES:

JOHN MARSDEN

(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED

(Defendant)

JUDGMENT OF: Levine J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

I Barker Q.C.

G O'L Reynolds S.C.

R G McHugh

(Plaintiff)

W H Nicholas Q.C.

J S Wheelhouse

R Titterton

(Defendant)

SOLICITORS:

Phillips Fox

(Plaintiff)

Mallesons Stephen Jacques

(Defendant)

CATCHWORDS:

On order of addresses

SCR Pt 34 r 6

ACTS CITED:

Defamation Act 1974 (as amended)

Supreme Court Rules

DECISION:

See paragraph 15

JUDGMENT:

- 4 -

DLJT: 12

(Ex Tempore - Revised)

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DEFAMATION LIST

No. 20223 of 1995

No. 20592 of 1996

JUSTICE DAVID LEVINE

FRIDAY 19 FEBRUARY 1999

JOHN MARSDEN

(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED

ACN 000 145 246

(Defendant)

JUDGMENT (On Order of Addresses - SCR Pt 34 r 6)

1 HIS HONOUR: The plaintiff seeks a direction under SCR Pt 34 r 6(1) as to the order of address.

2 The context in the present case is that pursuant to s.7A of the Defamation Act 1974, (as amended), the jury will decide whether the programs carried imputations and whether they are defamatory ("the defamatory imputations").

3 The further context is that the plaintiff will tender the two videotapes, to the tender of which no objection will be taken by the defendant; that will be the evidence upon which the jury questions will be decided.

4 The terms of the directions sought were articulated on 17 February by Mr Reynolds, of Senior Counsel for the Plaintiff as follows:

"Mr Barker's suggestion is this: for the plaintiff to go first and we are assuming this, that there are no evidentiary difficulties, everything is nutted out by agreement, to open the case and for that to merge into an address and during that process the tape or tapes would go into evidence. The defendant responds to that and finally allows the plaintiff a right of reply which is a true right of reply, that is, counsel is confined, as he would be in the Court of Appeal, to matters of reply and not to reopening and having another bite on the issues generally" (T 240.46).

5 The basis for seeking such a direction, in my view, can be stated as that the plaintiff will, if the usual procedure is followed, be disadvantaged forensically in that the defendant in this new, artificial and discrete trial by jury within the trial of the actions, not having gone into evidence, will have the last address to the jury on the s 7A questions.

6 In a pre-1995 defamation action in which the jury decided whether defamatory imputations were conveyed by the relevant matters complained of and other issues left to it at the end of the trial, the defendant, having gone into evidence, would not have the right of the last address.

7 In a pre-1995 defamation trial, but after the judgments in Radio 2UE Sydney Pty Limited v Parker (1992) 29 NSWLR 448 and TCN Channel 9 Pty Limited v Mahoney (1993) 32 NSWLR 397 where on the issues of defamatory imputations the defendant has not gone into evidence, the practice has been (as exemplified in RZ Mines (Newcastle) Pty Limited & Anor v Newcastle Newspapers Pty Limited & Anor (Hunt CJ at CL, unreported, 16 November 1994), and Harris v Perkins 10735 of 1991), and in the absence of any application for specific directions, for the order of addresses to follow the usual course.

8 Here we are concerned with, first, a post-1995 defamation action, and, second, a situation where an application has been made.

9 Whilst the proposed direction limits the sought right of reply to be one in the strict sense, no basis other than mere forensic advantage or disadvantage has in my opinion been advanced which persuades me to depart from the usual order of addresses as is referred to in Pt 34 r 6(5).

10 The reference in the course of submissions to pre-1995 and pre-Parker and Mahoney cases is of no assistance because, first, the legislature has intervened to create the new separate trial, artificial as it may well be described. Discrete, in fact, it is.

11 Secondly, that separate trial is conducted before a separate forum, namely the jury. Thus in the context of this case, the old scheme, as I will describe it, as relied upon as a basis for the directions sought, vis-a-vis the forum constituted by the jury, cannot apply. But, of course, it may still apply to the forum constituted by the trial judge.

12 Further, and of critical importance, is that the role of the trial judge and his summing up to the s.7A jury cannot be overlooked.

13 It will be open to the plaintiff's counsel, at the end of the address by counsel for the defendant, to seek any directions considered appropriate and required in the interests of justice in the light of such address.

14 Equally, of course, it is the duty of the trial judge fairly to present to the jury the issues, the law, and each side's case.

15 Nothing has persuaded me to make the directions sought under Pt 34 r 6(1) and I decline to do so.

LAST UPDATED: 26/02/1999