Marsden v Amalgamated Television Services Pty Limited

HIS HONOUR: A question has been asked of this witness to the effect of " What do you say as to the plaintiff's reputation after the broadcasts ?" On an earlier occasion in relation to another witness a similar question was asked, and notice given of a submission to be made that s 46A of the Defamation Act operates in such a way as to make admissible that kind of testimony.

Section 46A states that the Court in determining the amount of damages to be awarded in any proceedings for defamation, is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded.

Upon my reading of s 46A, nothing in it affects the ambit of relevant harm as it has been set out in s 46 of the Act. Section 46A is directed to how the Court goes about its task in the assessment of damages on the basis of evidence received during the course of a given trial. It does not, in my view, change the nature of relevant harm in such a way as to affect the normally applied rules as to admissibility of evidence as to relevant harm. That is still governed by the common law and, as the common law has been affected by s 46 of the Act. I reject the question.