Marsden v Amalgamated Television Services Pty Limited

HIS HONOUR: These documents relate to the conduct of the defendant after the publication of both matters complained of, in aggravation of damages, but that component of the conduct or the defendant that goes to the plaintiff's reputation.

The material is made up of internal memoranda, document 49 being a press release. By its sworn answer, the defendant admits having issued it to the news media organisations. No material has been tendered evidencing any re-publication by those media organisations.

What is said for the plaintiff is that this conduct was improper, unjustifiable and lacking in bona fides by the defendant “ standing by” the program, being the second matter complained of.

It may well turn out that it will not have been proved to have been improper, unjustifiable and lacking in good faith on about 22 August 1996 for the defendant to have further have published its re-affirmation of the “ Witness” program. It may turn out that that element of the case will be proved by the circumstances which the plaintiff confidently asserts and is yet to occur, namely the failure of the defence of justification in circumstances where that fate indicates that the defendant's raising and persisting in it was lacking in good faith, unjustifiable or improper.

It was sought to be argued for the defendant that a tender on that basis was contingent on something happening later in the trial. I do not agree with that proposition.

As Mr Hall remarked, in a hurt feelings aggravated damages case in which a plaintiff does give testimony to the effect: “ I was dreadfully hurt by what the defendant said, by putting on its plea of justification; that these things said about me were true” , that claim will, in the end, only become established and amenable to an award of damages if, at the end of the trial, all of those things happened in relation to the plea and the plaintiff had given evidence as to his feelings.

I will admit documents 47, 48 and 49, and I include in that the interrogatory 31 (a) and (b), as delivered in the judgment by me in respect of the second action, as Exhibit P.