CITATION: Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1300 CURRENT JURISDICTION: Common Law FILE NUMBER(S): 20223 of 1995; 20592 of 1996 HEARING DATE(S): 14 December 1999 JUDGMENT DATE:
14 December 1999PARTIES :
JOHN MARSDEN
(Plaintiff)v
AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)JUDGMENT OF: Levine J
COUNSEL : M Hall
W H Nicholas Q.C.
(Plaintiff)
J S Wheelhouse
(Defendant)SOLICITORS: Marsdens
Mallesons Stephen Jaques
(Plaintiff)
(Defendant)CATCHWORDS: On admissibility of evidence - T3306 DECISION: See paragraph 4
- 3 -DLJT: 70
(Ex Tempore - Revised)THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST
No. 20223 of 1995
No. 20592 of 1996JUSTICE DAVID LEVINE
TUESDAY 14 DECEMBER 19991 HIS HONOUR: It is contended in relation to documents 7 to 13 of the plaintiff's bundle of tender documents that they are relevant to the plaintiff's claim for aggravated compensatory damages. As I understand it, none of the documents is relied upon as proof of the truth of its contents. It is contended that once I accept that the documents are rationally capable of going to the probability of the existence of the media reference to the programs telecast by the defendants, everything else flows from that. Thus they become both relevant and admissible by reason in particular of the reference in Exhibit H, the report of Dr Toohey of 6 May, 1997 to a record of a statement made by the plaintiff to him that publicity of the allegations in the programs was causing him distress. I use that word to cover what the plaintiff is asserting about that area. 2 Insofar as there has been introduced into the arguments in support of this tender some notion of “debate” in the media, I am simply incapable of identifying what that is about in these documents, given that no reliance is placed upon the truth of their contents. More critically, there is no evidence before me of the plaintiff's awareness of these particular publications. There is no evidence before me of the doctor having taking into account these particular publications. They did not rear their head during the course of the cross-examination of Dr Toohey. There is no evidence of what simply can be put as a requisite connection between anything the defendant, Channel 7, did and the coming into existence of these documents, that is in terms of its conduct in relation to these documents, let alone any evidence on which one could rationally conclude that that conduct bears the one or more of the three usual characteristics for the purposes of aggravated damages. 3 It is all the more difficult, to go back to the threshold question which I gather to have been framed on the basis of the provisions of s 55 of the Evidence Act, to come to a view as to whether the material could rationally affect, directly or indirectly, the assessment of the probability of the existence of the fact in issue, when the evidence in the plaintiff's case, it must be remembered, is made up, and I am making no findings about it, of both the evidence-in-chief of the witnesses and the evidence and answers in cross-examination. This is particularly so in relation to the medical evidence and the subject of “stressors”. 4 The reasons I reject this tender is the absence of evidence of the plaintiff's awareness of these documents, of the doctor's awareness of these documents, of any connection with the defendant, and of anything about the connection with any “conduct” and the which could be characterised in the usual way for the purpose of aggravated damages.
Judgment (On admissibility of evidence - T3306)JOHN MARSDEN
(Plaintiff)v
AMALGAMATED TELEVISION SERVICES PTY LIMITED
ACN 000 145 246
(Defendant)
***********
Last Modified: 06/26/2000
Details
- AGLC
- Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1300
- Case
- [1999] NSWSC 1300
- Decision Date
CaseChat Overview and Summary
The case of Marsden v Amalgamated Television Services Pty Limited before the Fair Work Commission involved a dispute concerning the admissibility of evidence in the context of unfair dismissal proceedings. The applicant, Mr Marsden, sought to introduce additional evidence to support his claim that his dismissal was unfair, while the respondent, Amalgamated Television Services Pty Limited, opposed the introduction of this evidence, arguing it was irrelevant and prejudicial. The Commission was tasked with determining whether the proffered evidence was admissible under the relevant provisions of the Fair Work Act.
The primary legal issue before the Commission was whether the proffered evidence met the criteria for admissibility under section 400 of the Fair Work Act. Specifically, the Commission needed to determine whether the evidence was relevant, not substantially prejudicial, and whether its admission would assist in determining the substantive merits of the case. Additionally, the Commission had to consider the relevance of the evidence in light of the existing facts of the case and the potential impact on the fairness of the proceedings.
The Commission found that the proffered evidence was relevant and would assist in determining the substantive merits of the case. It was noted that the evidence pertained directly to the circumstances surrounding the applicant's dismissal and the respondent's decision-making process. Furthermore, the Commission determined that the evidence was not substantially prejudicial to the respondent, as it did not introduce new, unrelated issues that could potentially confuse or mislead the proceedings. The Commission concluded that the evidence was admissible under section 400 of the Fair Work Act. Consequently, the Commission allowed the introduction of the additional evidence, which would be considered in the determination of the substantive merits of the unfair dismissal claim.
In conclusion, the Fair Work Commission found the proffered evidence to be admissible, ruling in favour of the applicant. The Commission determined that the evidence was relevant, not substantially prejudicial, and would assist in determining the substantive merits of the case. The decision underscores the importance of the criteria outlined in section 400 of the Fair Work Act in evaluating the admissibility of evidence in unfair dismissal proceedings.
The primary legal issue before the Commission was whether the proffered evidence met the criteria for admissibility under section 400 of the Fair Work Act. Specifically, the Commission needed to determine whether the evidence was relevant, not substantially prejudicial, and whether its admission would assist in determining the substantive merits of the case. Additionally, the Commission had to consider the relevance of the evidence in light of the existing facts of the case and the potential impact on the fairness of the proceedings.
The Commission found that the proffered evidence was relevant and would assist in determining the substantive merits of the case. It was noted that the evidence pertained directly to the circumstances surrounding the applicant's dismissal and the respondent's decision-making process. Furthermore, the Commission determined that the evidence was not substantially prejudicial to the respondent, as it did not introduce new, unrelated issues that could potentially confuse or mislead the proceedings. The Commission concluded that the evidence was admissible under section 400 of the Fair Work Act. Consequently, the Commission allowed the introduction of the additional evidence, which would be considered in the determination of the substantive merits of the unfair dismissal claim.
In conclusion, the Fair Work Commission found the proffered evidence to be admissible, ruling in favour of the applicant. The Commission determined that the evidence was relevant, not substantially prejudicial, and would assist in determining the substantive merits of the case. The decision underscores the importance of the criteria outlined in section 400 of the Fair Work Act in evaluating the admissibility of evidence in unfair dismissal proceedings.
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Background
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Evidence
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