Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 752 | Case summary

5 It cannot be and it is not, as I understand it, in issue that I have power to grant the leave sought. There can be many circumstances in which, upon conclusion of the evidence in a trial, an occasion could arise for this step being taken. It may be consequent upon indeed a judgment that requires evidence in relation to, for example, the taking of accounts or the computation of damages. It may be that in a given case an original document has finally been located in someone's possession and a copy only of it has been received in evidence; a subpoena could be issued to have produced that original. Given the state of the trial it is clearly a matter for my discretion whether or not to grant the leave. 6 The application is based on certain submitted aspects of "The 7.30 Report". The first is said to be that the plaintiff can be understood as no longer looking to this court for the vindication of his reputation. He has entered the public domain and courted the public for sympathy and support thereby seeking to restore his reputation. 7 It is not necessary, nor indeed is it desirable, to expound my views as to what the program in fact indicates. In the context of that first basis it simply has to be acknowledged that the litigation embarked upon by the plaintiff is still on foot. He has not withdrawn it nor abandoned it. As far as this court is concerned he and the defendant will be bound by its resolution. 8 The second matter is that the material sought to be brought to court pursuant to the subpoena may well amount to "fresh" evidence. It was submitted, and correctly so in my view, that the present situation is different to that with which I dealt on 19 July refusing the defendant leave to re-open its case. (NSWSC 702: DLJT 200). The trigger for the application is "fresh" in the sense that the program was published after the conclusion of the case. To that aspect I will return. 9 The third matter raised by Mr Stitt was that during the course of the program the plaintiff made statements that were "incorrect factually" in the course of what is described as his plea ad miseracordiam and the material may therefore be relevant to his credit. Again it is not for me to judge whether the statements made by Mr Marsden were factually incorrect. 10 It is appropriate to observe that Mr Marsden's participation in the program as telecast could not be described as major. That his litigation was the subject of the telecast is unarguable. Whilst not having taken measurements, the time devoted in the course of the whole program to anything Mr Marsden said either directly to Mr Dempster or by the use of footage from what is in fact an exhibit in this trial (Exhibit 120) is really quite limited. 11 Another observation of course to be made about the program as telecast is of its very nature it contained edited material. It could hardly be disputed that the parts of the interview between Mr Marsden and Mr Dempster in fact telecast, on the probabilities, were part of a recorded interview which, in terms of duration or footage, would be far longer than that in fact used in the telecast. I am not persuaded by that proposition alone, namely the assertion that statements made by Mr Marsden were incorrect factually, would found the grant of leave. It would be undesirable to have to examine in detail what Mr Marsden said and then examine it against the backdrop of the whole trial to identify whether anything he said was a factual assertion and then to determine whether or not it was accurate. 12 The next matter was to the effect that the plaintiff on the program spoke of matters in respect of which he declined to give evidence in the witness box. That submission relates, as I understand it, to observations the plaintiff made on the program, for example, and I just repeat the record of his words: "It's probably totally ruined my life and my health. It certainly ruined me financially. I've lost a lot of friends. I live on medication. I go through horrendous dreams". 13 Another statement by Mr Marsden was to the effect that that it might have been better for him to have taken a far more dramatic course, "drowning himself in a sea of oblivion," rather than to prosecute his cause. But it is trite to say that whatever was said on this program is not evidence. 14 It is important to remark now that, with the aid of submissions from the legal representatives of the parties, I will decide this case in the light of my findings on the evidence, and only the evidence, and according to law. In other words, "by the book", uninfluenced by an event such as this or indeed a lot of others which, through the media and otherwise, have come to my attention. 15 One of the issues that will be so decided or will be the subject of findings is the question of damages. That will be decided on such evidence as there is on the issue, and on that alone, in the light of submissions. The damages component of this case, it can now be recognised, is one that has been affected by the structure of the conduct of the case. I say that in response to what Mr Hall seemed to be suggesting, that the defendant failed to take some forensic steps in relation to cross-examination of the plaintiff on the claim for psychiatric injury. The significance, if there be any, of that asserted failure must be considered in the light of this case's structure, the way the plaintiff ran it, and not ignoring the rulings that I gave on the several applications the plaintiff made in that regard. 16 Concern was expressed by Mr Stitt for the defendant that in the course of the program Mr Marsden was critical of the conduct by the defendant of the case, and in some way sought, in an exercise of "self-help", to obtain sympathy by reason of that asserted conduct of the defendant. Again, without forming any view of whether what was said in the program could amount to criticism, I merely note two things: the program shows Mr Marsden saying he embarked upon the litigation knowing the risks: "I thought it would be over in six weeks. I never thought that accidentally on purpose information would drop into Channel 7s hands by courtesy of police". 17 The other part in this context that I would simply remark upon is that which the program showed Mr Ackland saying: "Well the high stakes tactical manoeuvring really revolved around what witnesses could appear, and Channel 7 discovered the names of a lot of potential witnesses through the police by getting access to some police documents." 18 Later in the telecast Mr Marsden was shown as saying certain things about his perception of the status of witnesses and what he said in the program as to his rights in relation to them. I refer to these matters merely to place in some context the fourth basis, namely the concern the defendant has as to what was said by Mr Marsden as to its conduct as it affected him in the damages sense. The program of course contained comments by Mr O'Brien, Mr Dempster, Mr Ackland and the former Attorney General of New South Wales; comments relating to this litigation in the case of the first group, and then in the case of the last mentioned (Mr Shaw Q.C.), the substantive law of Defamation in this State. 19 Finally, in relation to that cluster of bases that point to the plaintiff embarking upon an exercise in self-help, a plea for sympathy, and not seeking vindication from this court but doing it himself in the public domain, I can do no more than note that Mr Marsden was telecast as saying, in relation to the allegations from the various witnesses - "that part of the evidence has destroyed my reputation forever and that will never come back." 20 That statement might lend support to the proposition that what Mr Marsden did was to seek sympathy, but might not lend itself to support the proposition that he was embarking upon an exercise to vindicate his reputation which he said was "destroyed forever". 21 The fifth basis is the one I have adverted to already. On its face the interview can be understood as not containing everything that Mr Marsden might have said in the course of a recorded interview with Mr Dempster. There may be material edited out or "on the cutting room floor", as it was said. 22 The defendant is applying for leave to issue the subpoena to have access to, or to have brought to court, with a view to having access to the material set out in the schedule "1. All documents, including but not limited to files, correspondence, notes, memoranda, audio tapes, video-tapes, statements, drafts, computer print-outs and computer disks used or created in preparing the segment concerning John Marsden broadcast during the program entitled '7.30 Report' on 20 July 2000. 2. Film or video-tape recording of the program '7.30 Report' broadcast on 20 July 2000. 3. All documents, including but not limited to files, correspondence, notes, memoranda, audio-tapes, video-tapes, statements, drafts, computer print-outs and computer disks used or created in preparing the segment concerning John Marsden broadcast during the program entitled 'Lateline' on 20 July 2000. 4. Film or video-tape recording of the program 'Lateline' broadcast on 20 July 2000". 23 Nothing was mentioned or suggested as to the contents of 'Lateline". 24 It is the defendant's position, candidly stated, that this exercise has been embarked upon with a view to examining any such material to determine whether, then, an application would be made to re-open its case. As Mr Stitt remarked, it might well be that in the event of leave being granted, the subpoena being served and the material being produced, no step will be taken. Equally, presumably, it might well be that, if those events occur, that step could well be taken. 25 Mr Hall rightly acknowledged that whether or not leave is granted in the circumstances of this application is a matter as between the defendant and myself. He sought, however, to assist by making submissions as to the apparent lack of forensic purpose involved in this exercise. That is, on the one hand, it will be too late for the defendant in due course to re-open on the issue of damages in the light of any material disclosed by what is sought; yet on the other, to suggest that if that situation arose the plaintiff might have some rights himself then to re-open on that issue. As I have said at this stage the issue of damages is well and truly joined and has been affected by the course the plaintiff took in the conduct of the trial. 26 It was also submitted that when one looks at the subpoena it is no more than a "fishing expedition". With the last proposition, I do not agree that it is a fishing expedition in the usual sense of the words. The starting point as to the material is identified by "The 7.30 Report", the content of which is also pointed to by that report. 27 However, the subpoena in respect of which leave is sought is directed to a third party. It is directed to a third party that is a media organisation. It is directed to a third party media organisation in respect to the production and telecast of a current affairs program. Whilst notice was given to the ABC of this application it has not appeared, and nothing turns on that. What cannot be ignored, however, is the possibility that that third party, upon receipt of the subpoena, might comply with but make claims for confidentiality or in some way assert the "newspaper rule" or something cognate with it. It could lead to complexities and the extension of time before the substantive matter of any application to re-open. 28 I make no comment on whether the fact that Mr Marsden conducted the interview with Mr Dempster was well advised or ill advised. A litigant, just like any other person, subject to two fundamental potential impediments, namely the law of contempt of court and defamation, is perfectly free to comment upon the conduct or history of the case in which that litigant has been involved. The fact that he has done so is irrelevant. What he has said is irrelevant. But more to the point, what was disclosed as having been said by him on the program in my view, taking into account the five points raised by Mr Stitt, does not warrant the grant of leave. 29 The state of the trial about which I remarked at length in my judgment on 19 July is such that the time has come to bring it to an end in evidentiary terms. That pronouncement of course is made, always bearing in mind the right of either party to apply and the obligation of the court to entertain any such application unless its frivolity is patent. I do not say that this application is patently frivolous. What might fairly be regarded as the unusual event of the participation by the litigant in an interview post-conclusion of trial and statements made by him in relation to matters that have been the subjects of evidence, provide an explanation for the unusual course the defendant has chosen to adopt. 30 Post-trial statements, of the kind made by Mr Marsden in the course of this program, are insufficient if all that is relied upon is that they might, by reason of their having been made, in some way go to his credibility. 31 Statements of the kind made by Mr Marsden in relation to his personal circumstances must be viewed, on the damages component of this case, in the light of the fairly clearly drawn lines of the structure of the presentation of the issues on that component. 32 Statements as to the conduct of the defendant, if there were such statements, for the purposes of this application, must be viewed within the context of the issues relating to the defendant's conduct in this trial themselves being constrained by fairly strict lines in the way this trial has been run. In other words, the question of aggravated damages falls within, it will no doubt be argued, very constrained and limited areas. By that I am not to be taken as making any finding or expressing any concluded view one way or the other. I am juxtaposing a perception of the conduct of the trial on the bases advanced for leave to issue of the subpoena. 33 Finally, as I have said, it is directed to a third party media organisation which may well create problems of its own in the event of leave being granted. 34 The combination of these factors lead me to the conclusion that the bases sought for leave do not give rise to a situation that can bear a proper proportion to the whole of the conduct of this trial. The interests of justice in the finality of the hearing, the interests of justice in terms of determination on the merits as I discussed it in my judgment of 19 July, will be served more by declining the application than by its being granted. 35 The appropriate costs order is that the costs be the plaintiff's costs in the cause. ***********

Marsden v Amalgamated Television Services Pty Limited

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