Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 28

Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 28

Although the Court had power under s 85(2) of the Supreme Court Act 1970 and SCR Pt 31 r 2 to order separate trial of issues, the proposed separation would invert or pervert the ordinary structure of a civil defamation action and prejudice the defendant. The justification case had been pleaded and particularised, and existing trial discretions to control cross-examination and allow rebuttal evidence were sufficient to protect the plaintiff from surprise or unfairness. Nothing in the structure of the case warranted departure from the normal conduct of the defamation action.

Jurisdiction
Australia
Judgment Date
09 February 1999
Procedural Posture
Defamation Action / Plaintiff's Application for Separate Trial of Defences Before Damages
Outcome
Plaintiff's motion dismissed.
Legal Topics
['separate Trial of Issues' 'justification' 'contextual Justification' 'qualified Privilege' 'damages' 'function of Judge and Jury in Defamation Proceedings']
['defamation' 'civil Procedure'] ['separate Trial of Issues' 'justification' 'contextual Justification' 'qualified Privilege' 'damages' 'function of Judge and Jury in Defamation Proceedings']

Case Brief

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Procedural Posture

Defamation Action / Plaintiff's Application for Separate Trial of Defences Before Damages

Legal Issues

  1. 1 ['Whether the Court should order that the defences of justification, contextual justification and qualified privilege be tried separately before any hearing on damages.' 'Whether the structure of s 7A of the Defamation Act 1974 required or supported separate consideration of defences and damages.' "Whether requiring the plaintiff to meet serious justification allegations before hearing the defendant's evidence would be unjust or reverse the onus of proof." "Whether available trial discretions could adequately protect the plaintiff from surprise or unfairness in relation to the defendant's evidence on justification."]

Ratio Decidendi

Although the Court had power under s 85(2) of the Supreme Court Act 1970 and SCR Pt 31 r 2 to order separate trial of issues, the proposed separation would invert or pervert the ordinary structure of a civil defamation action and prejudice the defendant. The justification case had been pleaded and particularised, and existing trial discretions to control cross-examination and allow rebuttal evidence were sufficient to protect the plaintiff from surprise or unfairness. Nothing in the structure of the case warranted departure from the normal conduct of the defamation action.

Court Disposition

Plaintiff's motion dismissed.

Orders

  • ['The Court declined to order, pursuant to s 85(2) of the Supreme Court Act or Pt 31 r 2 of the Supreme Court Rules, the separate trial of the defences of justification, contextual justification and qualified privilege with any consequential judgment thereon prior to the hearing of any case the plaintiff proposes to...