Marsden v Amalgamated Television Services Pty Limited

The following series of questions and answers were given by Mr Lyall in examination-in-chief: “Q. What impact did that have upon Mr Marsden’s reputation, amongst members of the legal profession? A. It is very hard to say generally but I think it had an impacts (sic) amongst the members of the profession. Q. What was that? A. They thought less of him”.

The plaintiff, it being expressly disavowed that the evidence was tendered on the basis of Readers Digest Services Pty Limited v Lamb ([1981-2] 150 CLR 500 at 507 per Brennan J), the question arises as to its admissibility in accordance with established principles in relation to reputation evidence.

For the defendant it was argued that the tendered testimony falls within none of the categories of admissible evidence in relation to the plaintiff post-publication as dealt with by Hunt J in Hughes v Mirror Newspapers (1985) 3 NSWLR 504 at 512-3.

It is clear from what Hunt J said at 513E-F that the admissibility of evidence of the kind with which I am concerned is not justifiable in relation to the plaintiff’s reputation “ after ” publication, if it goes only to the status of that reputation post-publication as opposed to the particular circumstances of evidence of third party utterances about the plaintiff.

By reason of the observations of Hunt J just referred to and their applicability to the questions and answers set out above, I am of the view that the evidence is inadmissible and the evidence tendered will be struck out.