Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 619 (23 June 1999)

Last Updated: 23 June 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 619

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20223 of 1995; 20592 of 1996

HEARING DATE{S): 3, 12, 22-26, 29, 30, 31 March 1999

12-16, 19-23, 27, 28, 29 April 1999

3, 4, 7, 10, 14, 17-19, 24-28, 31 May 1999

1 June 1999

JUDGMENT DATE: 23/06/1999

PARTIES:

JOHN MARSDEN

(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED

(Defendant)

JUDGMENT OF: Levine J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

I Barker Q.C.

G O'L Reynolds S.C.

R G McHugh

(Plaintiff)

W H Nicholas Q.C.

R R Stitt Q.C. (31 May &1 June 1999)

J S Wheelhouse

(Defendant)

SOLICITORS:

Phillips Fox

(Plaintiff)

Mallesons Stephen Jaques

(Defendant)

CATCHWORDS:

DEFAMATION - justification - late amendment application - principles - overreaching of plaintiff - supboena to produce documents - application to set aside - abuse of process

ACTS CITED:

Defamation Act 1974 (as amended)

Evidence Act 1995 (NSW)

Police Service Act 1990 (NSW)

Police Service Regulations 1990 (NSW)

Supreme Court Rules

DECISION:

See paragraph 531

JUDGMENT:

DLJT: 44

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DEFAMATION LIST

No. 20223 of 1995

No. 20592 of 1996

JUSTICE DAVID LEVINE

WEDNESDAY 23 JUNE 1999

JOHN MARSDEN

(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED

ACN 000 145 246

(Defendant)

JUDGMENT (Defendant's Application to Amend Defence of Justification & Plaintiff's Application to Set Aside Defendant's Subpoena to New South Wales Police Service)

1 By Notice of Motion, filed in Court on 22 March 1999, the defendant seeks leave to file a "Third Further Amended Defence" (MFI 1) to the "Third Further Amended Statement of Claim" in the 1995 action and a "Further Amended Defence" (MFI 2) to the "Second Further Amended Statement of Claim" in the 1996 action. The defendant further seeks leave to rely on the particulars of justification contained in paragraphs 5 to 21 of what is described as the "Second Consolidated Particulars of Truth" (Exhibit R) served on 12 March 1999 as amended by letters from the defendant's solicitors to the plaintiff's solicitors dated 17 March 1999 (Exhibit S).

2 On 25 February 1999 the jury found that the 1995 program ("Today Tonight") carried the following imputations defamatory of the plaintiff:

"1(a) The plaintiff has had sexual intercourse with boys who were under the age of 18 knowing them to be under the age of 18.

3(a) The plaintiff has had sexual intercourse with a 15 year old boy who was then under the influence of drugs which had been given to him by the plaintiff".

3 The jury found that the 1996 program ("Witness") carried the following imputations defamatory of the plaintiff:

"1(a) The plaintiff has had sexual intercourse with 15 year old boys, having deliberately refrained from asking those boys how old they were.

2(a) The plaintiff has had sexual intercourse with 15 year old male prostitutes having deliberately refrained from asking them how old they were".

4 By its proposed Third Further Amended Defence to the Third Further Amended Statement of Claim the defendant pleads defences pursuant to ss 15 and 16 of the Defamation Act, 1974. The contextual imputations are:

"7(1) ...

(A) the plaintiff engaged teenage boys who were under the age of 18 and were working as prostitutes for the purpose of having homosexual intercourse with them;

(B) the plaintiff has committed criminal offences by having sexual intercourse with boys who were under the age of 18, with reckless indifference as to whether they were under the age of 18;

(C) the plaintiff committed criminal offences by engaging in homosexual intercourse with teenage boys who were under the age of 18 years;

(D) the plaintiff has committed a criminal offence by having sexual intercourse with a male prostitute who was a 15 year old boy knowing him to be under the age of 18.

(E) the plaintiff has committed a criminal offence by having sexual intercourse with a male prostitute who was a 15 year old boy with reckless indifference as to whether he was under the age of 18.

(F) the plaintiff has committed a criminal offence by having sexual intercourse with a male prostitute who was a 15 year old boy".

5 By its proposed Further Amended Defence to the Second Further Amended Statement of Claim (MFI 2), the same defences are pleaded and the contextual imputations are:

"7(a) ...

(A) the plaintiff engaged teenage boys who were under the age of 18 and were working as prostitutes for the purpose of having homosexual intercourse with them;

(B) the plaintiff committed offences by engaging in homosexual intercourse with teenage boys who were under the age of 18 and who at the time were working as prostitutes;

(C) the plaintiff committed criminal offences by engaging in homosexual intercourse with teenage boys who were under the age of 18 years;

(D) the plaintiff has committed criminal offences by engaging in homosexual intercourse with boys who were under the age of 16, knowing them to be under the age of 16;

(E) the plaintiff has committed criminal offences by engaging in homosexual intercourse with boys who were under the age of 16, with reckless indifference as to whether they were under the age of 16;

(F) the plaintiff has committed criminal offences by engaging in homosexual intercourse with boys who were under the age of 16;

(G) the plaintiff has committed criminal offences by engaging in homosexual intercourse with male prostitutes who were 15 years of age, knowing them to be under the age of 16;

(H) the plaintiff has committed criminal offences by engaging in homosexual intercourse with male prostitutes who were 15 years of age, with reckless indifference as to whether they were 15 years of age;

(I) the plaintiff has committed criminal offences by engaging in homosexual intercourse with male prostitutes who were 15 years of age".

6 The Notice of Motion to Amend filed on 22 March superseded Notices of Motion filed in each action seeking similar relief on 12 February 1999. The last mentioned Notices of Motion filed for the defendant were concerned with leave to amend in respect of D13 to D16. The subject Notice of Motion deals with all amendments sought including D17 to D25.

7 Two Notices of Motion were filed by the plaintiff on 7 May 1999. These Motions seek to have disallowed what are described as "those amended particulars of truth which are underlined in a copy of the defendant's Particulars of Truth filed on 18 February 1999". These Notices of Motion were filed as a precautionary measure in the following circumstances: by judgments dated 9 February 1999 (DLJT: 2 & DJLT: 3) I ruled as to the availability of imputations to go to the jury. Consequently, in the 1995 action, the defendant filed a "Second Further Amended Defence" to a "Second Further Amended Statement of Claim" on 18 February appending the particulars the subject of the relevant Notice of Motion of 7 May. In the 1996 action, on 18 February 1999, the defendant filed an "Amended Defence" to a "Further Amended Statement of Claim" appending the particulars the subject of the relevant Notice of Motion of 7 May.

8 The focus of the defendant's present Application to Amend pursuant to the Notice of Motion filed on 22 March, shortly stated, is an entitlement to rely upon cases arising from D17 to D25. There are other amendments sought in respect of D1 to D16 the allowance of which will be embraced in any formal order granting leave.

9 The plaintiff's Notice of Motion to Set Aside the defendant's Subpoena of 18 January 1999 to the NSW Police Service was filed in Court on 12 March. The context is: the defendant's proposed amendments in relation to D17 to D25 are founded in documents produced by the Police Service purportedly in compliance with that subpoena of 18 January 1999.

10 The Amendment and the Subpoena Applications were heard together. The proceedings formally commenced on 22 March 1999 (T409) when Mr Nicholas Q.C. opened the defendant's case on its Application. I reserved my decision on both Motions on Tuesday 1 June. Extensive and detailed written submissions were delivered and oral submissions were heard over the period 17 May 1999 to 1 June 1999.

11 The defendant's application is pursuant to SCR Pt 20 rr 1(1) and (2): "(1) The Court may, at any stage of any proceedings, on application by any party of its own motion, order that any document in the proceedings be amened, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit. (2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings". It is clear that the power conferred has a remedial purpose for the attainment of justice.

12 The plaintiff advances 17 grounds in opposition. Several of them are connected to the subpoena issue. One ground, the plaintiff's psychiatric condition, has been elevated to the level whereat it is submitted that should the defendant otherwise be entitled to amend, leave should be refused by reason of that condition. Thus, I shall determine the question of leave to amend generally, then the psychiatric component and the subpoena component.

13 For the defendant it is contended that the principles recognised in The State of Queensland & Ors v J L Holdings Pty Limited [1997] HCA 1; (1997) 189 CLR 146 show that "justice" is the paramount consideration. Amendments which may be a complete answer should be allowed unless the result is irremediable injustice to the plaintiff. Furthermore, and importantly for the defendant, "injustice" is to be distinguished from "prejudice". Prejudice may be averted by appropriate orders and directions as to the future conduct of the matter. For this case to be tried on its merits the amendment should be allowed to enable the defendant to be afforded a fair hearing on its "full" case. The Court's power is to ensure that the real questions raised by the proceedings be fairly determined and the rights of the parties decided.

14 In J L Holdings (a case founded essentially upon its peculiar circumstances), the majority (Dawson, Gaudron and McHugh JJ) at 152, having referred to the applicant's explaining their delay in applying for leave to amend on the basis that the relevant material was only "recently discovered", cited the important passage from the judgment of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 701:

"Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace" (emphasis added).

15 As to "intended to overreach", it was submitted for the defendant that this means no more than that which was involved in the amendment demonstrates "mala fides". Some support for this proposition was said to be found in the dictionary definitions in the Macquarie Dictionary ("deceit") and the Oxford Dictionary ("cunning"). Mr Barker Q.C. produced from his library a dictionary by Dr Ogilvie (1879) with a definition: "to reach ... too far" (it also includes "cheating"). References to dictionaries all point to the word "overreach" having the central meaning of "reaching" or "straining excessively" and when used of another person mean "defeating that person by the straining", in which context, the meaning to be attributed to this second component of the disjunctive from Bowen LJ is "intending to obtain a result beyond what was legitimate to cause frustration of the suit". The conduct described as a "overreaching" must be "intentional". The critical issue is whether that which constitutes the proposed amendment amounts to "overreaching" in the sense described.

16 The majority in J L Holdings in analysing the decision of the Full Federal Court referred to that Court's reference to Clough & Rogers v Frog (1974) 48 ALJR 481 and to the decision of the High Court in Sali v SPC Limited [1993] HCA 47; (1993) 67 ALJR 841 at 849 stating with respect to the latter (at 154):

"It may be said at once that in the passage which we have cited from Sali v SPC Ltd Toohey and Gaudron JJ are not to be taken as sanctioning any departure from the principles established in Cropper v Smith and accepted in Clough & Rogers v Frog. Sali v SPC Ltd was a case concerning the refusal of an adjournment in relation to which the proper principles of case management may have a particular relevance. However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim" (emphasis added).

17 Their Honours, in the context of the amendments being considered by the primary judge in J L Holdings went on to state (at 154-155):

"The purpose of the amendment was, according to the applicants, merely to avoid taking JLH by surprise. But if the amendment sought does raise a new defence and not merely a matter which JLH is required to prove in any event, it constitutes a substantial, if not complete, answer to JLH's claim. If it is arguable, the applicants should be permitted to argue it, provided that any prejudice to JLH might be compensated by costs. No doubt prejudice to JLH may also be averted, as Carr J in dissent in the court below pointed out, by appropriate orders expediting such procedures as the parties might seek to employ as a result of the amendment.

The majority in the Full Court considered that costs are not these days considered the "healing medicine" they once were. They referred to the speech of Lord Griffiths in Ketteman v Hansel Properties Limited (1987) 1 AC 189 and the decision of this Court in The Commonwealth v Verwayen (1990) 170 CLR 394. In Ketteman Lord Griffiths said:

"justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes ..." (emphasis added).

In this case, which is of a commercial nature, the litigants are on the one side a developer and on the other side government, and there is nothing which would indicate any personal strain which would justify the conclusion that costs are not an adequate remedy for prejudice caused by the amendment sought to the pleadings...

Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties".

18 Particular emphasis was placed upon the exception in respect of "extreme circumstances" referred to in the first extract above. The circumstances of the present application, the defendant contends, cannot be considered "extreme".

19 Much of what was said by Kirby J in J L Holdings was cited by counsel for the defendant particularly the passages (at 161-3):

"In dissent, Carr J agreed that refusal of the amendment would cause serious injustice to the applicants. He invoked the remark of Griffith CJ in Rowe v Australian United Steam Navigation Co Ltd:

`[T]he right of every man to a fair hearing before he is condemned lies at the root of the tree of justice.'

Carr J referred to the broad language and remedial purpose of the power of amendment expressed in O 13 r 2 of the Federal Court Rules. He insisted that case management was but a means to the end of the attainment of justice. Taking efficiency into account did not oblige a court to give "decisive weight" to that factor. What was decisive remained the assessment of where justice lay in the particular case. This abiding requirement had survived the consideration of efficiency and public interest as, indeed, Lord Griffiths had acknowledged in Ketteman when he said:

`Whether an amendment should be granted is a matter for the discretion of the trial judge and he should be guided in the exercise of the discretion by his assessment of where justice lies. Many and diverse factors will bear upon the exercise of this discretion.'"

20 Counsel referred to Kirby J's statement of relevant considerations in the approach to pleading amendments commencing at 167, particularly paragraphs 5 to 7 at 169-172:

"5. Amongst considerations which may tend to favour the extension of an indulgence to a party applying for it are the following: that this is the only way in which the true issues and the real merits, factual and legal, can be litigated and artificiality avoided; that the oversight which occurred is adequately explained as, for example, that it arose out of sudden and unexpected events; that the proposed amendment is of considerable importance to the rights of a party, particularly where it provides a complete answer to a claim; that any fault is that of the party's legal representatives; that the oversight was wholly accidental; that it was simply the product of unavoidable human error or, possibly, the outcome of the application to the case of fresh legal minds who perceived an important new point; that cost orders or the imposition of other conditions could adequately rebalance the competing claims to justice; and that the hearing date is sufficiently in the future to permit a party to meet the amendment, taking into account any consequences for the gathering of fresh evidence, the conduct of discovery or like pre-trial procedures and the loss of assigned hearing dates...

6. Considerations which tend to argue against the grant of an indulgence include many which are the counterparts of the foregoing. Thus, the failure of a party to offer anything by way of explanation for a late application has been held relevant. So has the blamelessness of the resisting party and the extent to which the applicant is at fault in its breach of clear directions. Courts now take into account the strain which litigation may place upon those involved and the natural desire of most litigants to be freed, as quickly as possible, from the anxiety, distraction and disruption which litigation causes. In my view this is not a consideration limited to litigation by natural persons or involving private citizens. Because justice cannot be measured solely in monetary terms, costs orders are not necessarily an adequate balm to the other party. Thus, the proximity of the hearing is clearly a most important consideration. An opposing party is entitled to have taken into account the consequences of an indulgence, especially where it would cause disarray at the last minute to its preparation of the trial. Similarly, the length of time that the proceedings have been pending before the application is made will often be a relevant consideration. The longer the time, the more reasonable it may be to expect that the parties, or their lawyers, should have earlier appreciated, and raised, the point in issue. If a consequence of the indulgence is truly a necessity to postpone a trial date, this will be a most important consideration. Its importance increases with the congestion of court lists and the difficulty, particularly in the case of a lengthy trial, of securing early replacement dates. The extent to which a new issue would give rise to a substantial and new case in reply is also relevant. So may be the nature of the litigation and whether it has been assigned to a special list designed to cater for the peculiarities and special needs of commercial cases, long trials and the like. Writers on effective case management repeatedly stress the importance of adhering to a "firm, credible ... trial date" as an important element in securing the serious attention to a dispute which may help to promote its resolution. They call attention to the risks of "litigation abuse" by which some litigants seek, at all costs, to avoid firm hearing times Courts are entitled to react unfavourably to repeated default on the part of a litigant whose conduct has the effect of frustrating a proper timetable fixed for the trial. Justice will not necessarily require that a party should have multiple opportunities to plead and present its case. A court must accord justice to the particular litigant. But it must also maintain its responsible use of scarce public resources and consider, in a general way, the impact which its orders have on other litigants and on the public generally.

7. Whilst taking all of the considerations relevant to the circumstances of the case into account, the judge must always be careful to retain that flexibility which is the hallmark of justice. New considerations for the exercise of judicial discretion in such cases have been identified in recent years. But the abiding judicial duty remains the same. A judge who ignores the modern imperatives of the efficient conduct of litigation may unconsciously work an injustice on one of the parties, or litigants generally, and on the public. But a judge who applies case management rules too rigidly may ignore the fallible world in which legal disputes arise and in which they must be resolved" (emphasis added).

21 Of particular importance in the defendant's submissions was the public interest in the outcome of the proceedings and the undoubted flexibility attending their conduct now permitted by the amendments made in 1994 to the Defamation Act, 1974 limiting the role of the jury.

22 It is fundamental to the defendant's position, but vigorously contested by the plaintiff, that there has been nothing to suggest fraud or improper concealment of the defence on the part of Channel 7. Indeed, the factual material to which I will refer below, the defendant contends, exposes that upon the information coming into its hands, not only with promptitude but with care, were the particulars of the amendment sought notified to the plaintiff (cf. Clough at 482).

23 The application of the principles was exemplified in the following cases cited by Mr Nicholas Q.C.: Assaf & Anor v Skalkos & Anor (Levine J, unreported, 5 February 1998) pp 9-10; Tedeschi v Franklins Limited (Levine J, unreported, 23 September 1994) pp 2-3; Meekosha & Anor v Special Broadcasting Corporation & Anor (Levine J, unreported, 18 September 1998); Commonwealth of Australia v McLean (1996) 41 NSWLR 389 at 397.

24 Particular reference was made to the decision of Badgery-Parker J in Jones & Anor v TCN Channel Nine Pty Limited (unreported, 10 April 1992) in which the defendant had from the beginning pleaded defences under ss 15 and 16 but upon the matter being called on for trial sought leave to amend its defence to particularise a thitherto unjustified imputation. The defendant was in possession then of evidence capable of establishing the truth of the imputation in question. His Honour said at 5: "Prima facie, a party who makes a bona fide application to amend to make a fresh cause of action or a new defence should be permitted to do so, if any prejudice to the other party can be avoided by an adjournment and/or adequately compensated by an order for costs or otherwise avoided or compensated". His Honour deplored the dilatoriness of the defendant in the preparation of the matter: the defendant submits that there is no available basis for a similar attitude here to be taken. His Honour accepted that the decision of the solicitors in that case not to conduct investigations in the Philippines was made in good faith, but went on to say that in the "specialised field of defamation when a professional media organisation is defendant, it cannot escape criticism for dilatoriness or inattention to preparation by hiding behind its solicitors. Had the application been an application to adjourn so that a possible additional defences as to which had information but not evidence might be explored, or so that witnesses could be got to support a defence already pleaded, I should have refused such application without hesitation" (pp 9 -10). (Again, the defendant argues that that finding would not be available on the evidence here.) After acknowledging that there will be many cases where any application for late amendment of defences requiring a plaintiff to deal with allegations not previously raised in justice being refused, his Honour said that there could be no arbitrary rule. His Honour ultimately found that "the situation in the present case appears to be that the defendant is able, primarily at least, to mount a case that the second plaintiff would not have or be entitled to the reputation she proposes to assert before the jury... it would, in my view, be an affront to any notion of justice that the plaintiff should be allowed to proceed to trial, denying that she is or was a prostitute while the defendant had, waiting to give evidence, witnesses to the contrary whom it was precluded from calling. There is a big difference between this case and one where a defendant is seeking time only to investigate a new allegation or locate new witnesses in support of an old one" (pp 10-11; cf. TCN Channel Nine Pty Limited v Antoniadis (1998) 44 NSWLR 682 at 691D, 695B).

25 Here it is the defendant's position that there has always been a plea of justification, that the plea has always been focused upon the area of the plaintiff's conduct in relation to underage boys. It should be permitted to litigate a "full case"; it is not open to the Court in all the circumstances to say, in effect, "well, you have D1 to D16, you really do not need D17 to D25". For the plaintiff, on the other hand, it is submitted, that this is the very type of case referred to in the last few sentences of the passage cited from the judgment of Badgery-Parker J: merely new allegations and new witnesses in support of old ones. The disallowance of the amendment, the plaintiff argues, is the more compelling when it is accepted that the plaintiff will be "overreached", will be psychologically damaged and, to state it very shortly, the information founding the application (the Police documents) were obtained improperly after service of the subpoena which the plaintiff seeks to set aside.

26 The defendant contends and rightly so in my view, that the public itself has an interest in the resolution of the merits of a case such as the present. As was stated in Associated Leisure Limited (Phonographic Equipment Co Limited) & Ors v Associated Newspapers Limited (1970) 2 QB 450 at 457D per Edmund Davies LJ: "these Courts are here to administer justice. The concept of justice is not confined to the interests of the particular litigants; it embraces and extends to the protection of the weal. The issues involved in this litigation have an importance of direct concern to the community," (see also the Court of Appeal in the instant case (unreported, 2 May 1996) at 1, 11).

27 Public interest is an essential element of the defences under ss15 and 16 of the Defamation Act, 1974. The defendant argues that refusal of the application would preclude the litigation of matters of legitimate concern to the public, would be contrary to the public interest and hence an "affront" to the administration of justice. As Lord Denning MR said in Associated Leisure at 455E: "I think that justice requires that the matters alleged in this amendment should be investigated in a Court of law. It would, I think, be very strange if this libel action were to be tried next month and damages awarded on the basis that there was nothing whatsoever to be said against the plaintiffs: and yet, in October, the Gaming Board were to refuse them a certificate on the grounds that they were not fit and proper persons to supply and sell gaming machines. It is in the interests of consistency and justice that the reputation of the plaintiffs should be properly considered in this action, provided always, as I have said, that any hardships to the plaintiffs can be compensated for in money. I think it can so be compensated. The defendants, in putting this plea of justification on the record, run a very grave risk. If it fails, the damages which might otherwise have been modest, would be colossal," (see also Atkinson v Fitzwalter & Anor (1987) 1 WLR 201 at 210E, 222H).

28 It is fundamental to the plaintiff's opposition to the amendment application that any "usual" order as to costs or adjournment will never compensate the plaintiff for the "injustice" that allowance of the amendment would bring about in terms of the "overreaching" of the plaintiff in his vulnerable, psychiatric state.

29 The defendant submits that the evidence establishes that Superintendent Woodhouse put allegations, including D17 to D25, to the plaintiff on 29 January 1999 and submitted a report to the DPP in March. What remains an open question is whether prosecution is recommended and, if so, which of the allegations are relevant. It would be an affront to justice if refusal of the application precluded the defendant from defending the claim for damages and the plaintiff was subsequently found guilty of conduct which the defendant seeks to raise and prove to be true. In this context, it is important to keep in mind the "public" element of every libel action. The plaintiff institutes proceedings to recover damages to vindicate his reputation and the sum ultimately awarded signals to the public the vindication of the plaintiff's good name: "he gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done" (Uren v John Fairfax & Sons Limited [1966] HCA 40; (1966) 117 CLR 118 per Windeyer J at 157). Hence it is vital to ensure that any verdict obtained by the plaintiff is the outcome of a trial on the merits. Conformably with the remarks of Lord Denning MR in Associate Leisure it would be wrong if, after a trial, the plaintiff could be put before the public with his award as vindication when it was obtained in circumstances where the defendant had been precluded from litigating its full defence.

30 It must be borne in mind that the defendant has always justified in the sense to which I have referred. Its amendments relate to what are said to be incidents additional to those already particularised. If established at the trial one, or several in combination, may constitute a complete answer to the plaintiff's causes of action.

31 By reason of the timing of the defendant's notification to the plaintiff of the additional particulars, there has been no delay, no procrastination, no default on the part of the defendant which requires "indulgence", it is submitted. The particulars relating to D15 were sent on 6 January 1999; those relating to D13 and D14 were sent on 7 January 1999; those relating to D16 to D23 and Messrs Pollard and Brinkworth were contained in the document "Consolidated Particulars of Truth" delivered on 18 February 1999 and the particulars relating to D24 and D25 were contained in the further version of the "Consolidated Particulars of Truth" delivered on 26 February 1999.

32 It is also of significance, the defendant says, that the application to amend by adding particulars in relation to D13 to D16 was opposed from 6 January until 3 March on which day consent was indicated subject to the resolution of appropriate conditions. In relation to these components of the amendment, no prejudice to the plaintiff is asserted.

33 As to D17, the application is opposed, however on 21 April the plaintiff informed the Court that the plaintiff would not be prejudiced if the amendment was allowed and would be able to meet the allegations. As to D1, D2and D6 the absence of any real or any challenge at all to the amendments virtually eliminates them from consideration in the overall outcome of the application.

34 It is said that the evidence of Mr Angus (partner at Mallesons Stephen Jaques) establishes that he and others on behalf of the defendant were ignorant of the matters in the Police statements of D17-25 until 11 February when access was gained to them and other material produced on subpoena by the Police. These particulars were notified to the plaintiff's solicitors on 18 February in respect of D17 to D23 and on 26 February in respect of D24 and D25. Care has been taken in respect of those additional issues both prior to drafting the particulars and recently (T541.20, T929) and there has been no delay.

35 In his affidavit of 18 February, Mr Angus deposes as to the subpoena being issued to the Police Service on 18 January in response to which documents were produced to the Court on 1, 4, 9, 10 and 12 February. It was amongst the material produced on 10 February that the statements of D17 to D25 and those of Messrs Pollard and Brinkworth were located: these are Exhibit F (formerly IRA 1). Until access was granted on 11 February Mr Angus was ignorant of the identity of these people and of the allegations made (paragraphs 19-21).

36 In his affidavit of 26 February Mr Angus deposes that on the 5th of that month Mr Quail had obtained the names of twelve persons and made a handwritten list of them. That list included D19, D20, D21 and D23; later that day Mr Quail showed the list to Mr Bates (a partner at Mallesons Stephen Jaques) who caused investigations to be made as to the whereabouts of those named persons. Prior to that day neither Messrs Quail, Bates nor anyone of behalf of the defendant knew of those persons. It is Mr Angus' evidence that he does not recall seeing or reading the list which was thrown away on the 5th or 6th of February by Mr Quail (T553). The uncontested evidence of Mr Angus, it is submitted, is that neither the list nor the information on it played any part in the formulation of the particulars (T929.5).

37 I interpolate here that I accept this evidence. I accept that in the whole scheme of things Mr Quail's involvement, as described by Mr Nicholas, is a "red herring". No Jones v Dunkel inference is available from the fact of Mr Quail not being called.

38 In his affidavit of 5 March 1999 concerning D24 and D25, Mr Angus swears that their identity was unknown to anyone until 11 February and those names were not even on the list prepared by Mr Quail and showed by him to Mr Bates on 5 February. On 24 February each of D24 and D25 provided to the solicitors for the defendant a signed statement in relation to the matters in the Police statements; thus it came about that on 26 February the particulars were amended to include their allegations.

39 In his affidavit of 23 March relating to D6 and the amendments to existing particulars of his allegations it appears that on 16 March D6 and his solicitors attended a conference with the defendant's solicitors and counsel and gave information giving rise to amendments. That was the first occasion on which there was direct communication between the solicitors for the defendant and D6 (T932); this evidence was unchallenged.

40 In his oral evidence Mr Angus stated that it was after he swore his affidavit of 18 February that Mr Bates told him of the Quail list (T508.30) and that a Mr Price in the employ of the defendant's solicitors copied the names on or about 5 February (Exhibit 6). It was not until about mid-March (T511.45) that Mr Angus saw the list; he did not know the names or the allegations on 5 February (T834.5). The production of the statements of D17 to D25 were a surprise to him (T520.40) and as soon as the material was produced it was used to found the amended particulars (T528.25).

41 It was not until early January 1999 that pursuant to instructions and counsel's advice he issued the subpoena on the 18th. The matter had been expedited in May 1998 and fixed for hearing in September 1998. As at the latter date a substantial number of interlocutory procedures still required completion (supply of particulars, the filing of a Reply and particulars, discovery and administration of interrogatories): it was for that reason that he did not turn his mind to the issue of a comprehensive subpoena until completion of those interlocutory steps (T535.10).

42 To characterise the application to amend as occurring extremely late or made at the trial at the "eleventh hour" as the plaintiff asserts, is unwarranted, the defendant submits. The matter was expedited on 5 May 1998. In September of 1998 the matters were fixed for trial to commence on 8 February 1999 (four days being allowed by me from 1 February 1999 to tidy up loose ends!). At May 1998 and notwithstanding that the defendant did not oppose the application for expedition, the Statement of Claim was not in its final form, the Defence was not in its final form, no Reply had been filed, no interrogatories had been administered, no discovery had taken place and no subpoenas, of course, had been issued.

43 By September the position was little different from May in that the Statement of Claim and the imputations were not in final form, nor was the Defence, there had been no discovery and interrogatories had not been administered. As a consequence of the matter being listed in September before the interlocutory steps were complete the usual pre-trial matters "collided" so that by the nominated trial date (8 February 1999), there still remained complex residual interlocutory matters before the trial could proceed. Indeed in the week commencing 1st of February there was still outstanding questions as to the form of the imputations, the ambit of the Defence, the completeness of discovery and the adequacy of answers to interrogatories. The situation is in marked contrast to what is asserted to be the "normal" situation when a trial date is fixed after an acknowledgment by both parties that all interlocutory steps have been completed to their satisfaction. In this context, the "lateness" of the application for leave to amend must be viewed and if viewed appropriately in the light of the evidence, can be understood as one, nonetheless in accordance with principles, which must be allowed.

44 Mr Angus saw the need for additional particulars as being one to ensure that the best possible and all available evidence in support of the truth of the imputations was before the Court (T538.20). The particulars as drafted were based on signed statements to the Police (T542.35) and were sent, as I have said, after scrutiny by the solicitor for the defendant and senior and junior counsel. Further, since 18 February each person except D23 has confirmed the particulars in interview with the defendant's solicitors (T931.40).

45 As to D1 and D2 there was no cross-examination of Mr Angus as to the proposed amendments which are not seriously challenged. The changes such as they are (and these are set out in the most useful analysis prepared by Mr Barker Q.C.), were made after conferences with each in late January and early February 1999 and after reference to documents produced on subpoena (T932).

46 It is submitted that from the evidence of Superintendent Woodhouse it can be found that the Police material (including the statements upon which the particulars for D17 to D25 were based) would not have been produced before an interview with the plaintiff had been conducted at which the allegations were put to him. That interview ultimately took place on 29 January 1999. The material became accessible to the solicitors for the defendant for the first time on 11 February, it was not available before then, and Mr Woodhouse was not cross-examined to the effect that the documents would have been produced (that is, those that were in existence) earlier had the defendant issued its subpoena before 18 January.

47 The affidavit evidence of Mr Woodhouse can be summarised as follows. Most of the documents required by the plaintiff's subpoena which had been issued in October 1998, were the subject of a claim for public interest immunity. Mr Woodhouse's initial attitude to the defendant's subpoena of 18 January was that most of the documents attracted the same claim. On 27 January he attended a meeting with Messrs Bell and Howard of the Police Service solicitors and the Crown Solicitor's representative, Mr Singleton, and it was decided that documents including those relating to D17 to D25 should be produced after the interview arranged for 29 January, with the plaintiff had taken place. None of the material relating to D15 to D25 would have been produced until after Mr Woodhouse had interviewed the plaintiff and put to him the allegations from his investigations as head of Strike Force Cori in 1998.

48 In his affidavit of 14 April reference is made to a meeting on 1 February with the Crown Solicitor at which he advised that he would produce material including that of D15 to D25. The critical factor was that the interview with the plaintiff had taken place. Annexure D to his affidavit is the relevant policy log. Mr Woodhouse was then prepared to produce the material in response to the subpoenas issued by both the plaintiff and the defendant.

49 In oral evidence he stated that he instructed the Crown Solicitor on 20 January that he regarded the material concerning D15 and D16 and other complainants as subject to public interest immunity (T936.55). He was however, prepared to release other material (T937) relating to people not referred to in paragraph 25(c) of his affidavit of 2 March. The people referred to in that paragraph included D17, D18, D19, D20, D22, D24 and D25, D15 and D16, Messrs Pollard and Brinkworth and one other.

50 On 20 January in response to the defendant's subpoena, Mr Woodhouse decided that the majority of the material was subject to public interest immunity and contained matters to be put to the plaintiff and was part of an ongoing inquiry (T596.50).

51 On 27 January Mr Woodhouse attended a conference with Detective Senior Constable Halcro at the offices of the Crown Solicitor with Messrs Bell and Howard together with Detective Superintendent Inkster and another officer. The purpose of the meeting was to consider the subpoenas served on the Police Service by both the defendant and the plaintiff. On 27 January the position was as represented in annexure D to his affidavit of 14 April 1999, being the policy log paragraph 80. By 10 February (T966.50) the names I have referred to as having been set out in paragraph 25(c) of the first affidavit, were no longer the subject of ongoing investigation. With the interview of the plaintiff on 29 January the investigation by Detective Superintendent Woodhouse was effectively finished; all that remained was some further checking, to receive some information from Mr Lee (the solicitor acting for Mr Marsden in criminal matters), and to prepare and submit a report to the DPP (T982-3), which report was submitted in March (T944-5).

52 Thus, the submission is made for the defendant that it is quite plain that one is not dealing with a situation of delay in relation to steps that could have been taken which would have generated the production of the information that subsequently gave rise to the amended particulars. It would not and could not have been forthcoming, on the evidence, pursuant to a subpoena issued by either party prior to 10 February. In other words, circumstances entirely outside the control or interference of either the defendant or the plaintiff, if the plaintiff had so wished, were such that the delay is explicable, it warrants no consideration of "indulgence" and all other things being favourable, does not preclude the grant of leave. (In this regard, further reference was made to what Kirby J said at 170 in J L Holdings (supra) and to the Court of Appeal's judgment in Commonwealth v McLean at 397.)

53 The next component addressed by the defendant was the plaintiff's "situation" particularly with respect to the proposed amendments concerning D18-25. (It is to be remembered that the plaintiff's position in relation to D17 is that whilst the amendment is not consented to, subject to terms, the plaintiff would not be prejudiced by its allowance.)

54 It is contended for the defendant that the true position as regards Mr Marsden is unknown, the simple explanation being that he has chosen not to give evidence. All the evidence from those who represent him as solicitors has been given on information and belief, though none was challenged as to his/her non-acceptance as to what was said was their client's information conveyed to him.

55 Mr Potter was not informed by the plaintiff or indeed others as to relevant information obtained as to the allegations as to D13 to D25 either before or after 29 January. Mr Lee however in his evidence showed that the plaintiff had caused an analysis of the Police material to be undertaken to support the submissions to Mr Woodhouse for the interviews of 29 January and later, to demonstrate that there were errors of fact, inconsistencies and improbabilities in relation to those allegations. By 25 February the plaintiff was equipped, it is said, to support submissions to Mr Woodhouse as to his innocence and that the allegations were unreliable. It was left to Mr Potter however to assert prejudice in this application in circumstances where he did not know of the material with which Mr Lee was concerned or of the plaintiff's activities which generated it. Mr Potter's evidence as to the plaintiff's activities depended entirely on what the plaintiff told him and the defendant contends that the plaintiff has withheld information from Mr Potter.

56 Of critical importance, the defendant submits, is the following evidence as summarised. Mr Flynn, Barrister, gave evidence that on 24 September 1998 he visited D17 at the plaintiff's request and did so again in mid-October and gave advice to D17 on 30 October (T353-355). He and the plaintiff had lunch with D17 at a restaurant in Wollongong on or about January (T361-2). Mr Flynn arranged a meeting with D17 at Kirconnell Centre by fax on 18 January (Exhibit A) although the evidence is not clear that Mr Flynn was aware of the particulars in relation to D17 at that time. He also visited D17 on 19 January. Mr Flynn had been retained by Mr Potter since at least 17 November 1995 on behalf of the plaintiff to attend and take statements from all relevant witnesses in relation to the defamation litigation. Mr Flynn gave evidence on 12 March 1999 and it was only after that event that Mr Potter knew of the visits and lunch to which I have referred. Mr Flynn did not report to him on these occasions and Mr Potter was unaware of any steps being taken regarding D17 (T1154-5). The point being made is that Mr Potter might not have known, but the plaintiff certainly did, or so it clearly can be inferred.

57 Mr Lee (of Corrs Chambers Westgarth) sets out his activities in his affidavits of 1 March 1999 (Exhibit K) and 20 April 1999. The defendant's perception of his evidence is as follows: Mr Potter was not informed by Mr Lee of the existence of the documents which are set out in the affidavit of Mr Lee dated 1 March 1999 as annexure A (in connection with the privilege argument)(T1148-9). He was not aware of any of the documents having been provided to Mr Woodhouse until the time he prepared the affidavit (T1157.25). Although he did not know, Mr Potter presumed that Mr Lee and the plaintiff were investigating and gathering information as to the allegations after 29 January (T1188.5), though was ignorant of their activities in gathering material to refute the additional allegations (T1168.40). As at 10 February, the date of his affidavit, Mr Potter was ignorant of the extent of the exercise undertaken by Mr Lee under the plaintiff's instructions (T1171.15, T1203.5). As at 8 March he did not know of the documents to which Mr Lee referred in his affidavit of 20 April (T1189-90) or the information and asserted errors of fact, inconsistencies and improbabilities (T1190.15). The plaintiff did not tell Mr Potter that he had caused to be provided to Mr Lee material directed to the allegations put to him on 29 January or that he had caused Mr Lee to put a submission to Mr Woodhouse identifying errors of fact, inconsistencies and improbabilities (T1192.40). Mr Potter had not seen Mr Lee's folders of documents and was unaware of his annotations (T1193-4). For a more detailed discussion of the steps taken by Mr Lee see my judgment of 7 May (NSWSC 428: DLJT: 39). It was only very recently that Mr Potter became aware that in March Mr Lee had communicated with Mr Woodhouse concerning the allegations put at the interview (T1162); he was ignorant of the existence of any material put by Mr Lee to Mr Woodhouse on either 8 or 22 March (T1162).

58 The point made from such evidence, is that it is not open to the plaintiff with facility to assert, at the very least, discomfiture at the case the defendant proposes now to allege in relation particularly to D17 to D25. The plaintiff is Mr Marsden. The evidence discloses that the plaintiff certainly instructed Mr Lee in his capacity as Mr Marsden's solicitor for criminal matters on the one hand but kept Mr Potter in the dark on the other. The "reservoir of knowledge" as it was described in submissions was in Mr Marsden. He was giving different instructions to Mr Lee in relation to one component of his forensic business, namely the investigation by the Police Service, but there was no communication as to those matters vis-a-vis Mr Potter in relation to another component of his forensic business, namely the defamation action. That cannot be held against the defendant the more so when, in essence, the subject matter of Mr Marsden's dealings with Mr Lee coincides with substance of the proposed amendment.

59 The next consideration was the capacity of the plaintiff to meet the amendments.

60 It is submitted that continuously since December 1994 the plaintiff has investigated and gathered information as to allegations that he had sexual intercourse with teenage boys and frequented the establishment known as "Costellos". The information gathering has been conducted by the plaintiff himself, his firm, Mr Flynn and solicitors in both Corrs and Phillips Fox. Mr Flynn was retained from 13 March 1995 to assist the plaintiff in taking witnesses' statements to answer the allegations made in the first program and from November 1995 was retained by Phillips Fox to take statements for the purposes of the current proceedings. The work Mr Flynn did is set out in Exhibit K in this application, namely his affidavit of 1 March 1999. I have referred to the visits he made to D17 for the plaintiff from September 1998 to 19 February 1999.

61 Mr Whittaker from 2 December 1994 commenced acting in relation to what are described as the "Grusovin allegations" and in mid-March 1995 the plaintiff had instructed Phillips Fox in the defamation proceedings whilst Corrs continued to represent him in relation to the Police Service inquiries and the Royal Commission. In early 1995 the plaintiff retained lawyers employed by his firm Marsdens to gather and prepare material demonstrating his innocence of the Grusovin allegations and in anticipation of any proceedings arising therefrom. That is set out in Exhibit L, Mr Whittaker's affidavit of 1 March 1999.

62 Mr Lee has acted continuously since September 1998 in relation to investigations of the plaintiff by Strike Force Cori under Mr Woodhouse and in relation to anticipated criminal proceedings against him as is detailed in his affidavit of 1 March 1999, Exhibit K, his affidavit of 20 April and his evidence at T1254, T1299.

63 Mr Potter has acted continuously since March 1995 in relation to the defamation proceedings assisted by Ms Gillingham.

64 As to D13 to D16, as has been stated, opposition to these amendments was maintained to 3 March shortly before Mr Lee gave evidence in support of the plaintiff's claim to deny inspection of documents produced on subpoena from the Police. On 9 February senior counsel for the plaintiff submitted to the Court that refusal of the applications was justified. It was then put that there was a need to investigate a wide range of matters to enable the plaintiff to meet the allegations (that is, in relation to D13 to D16). Mr Potter's affidavit sworn on 10 February was to like effect. However the evidence in Exhibit K, Mr Lee's affidavit of 1 March 1999 and his affidavit of 20 April are important, particularly annexure B to the latter being a letter dated 14 October 1998 to Mr Woodhouse in response to a letter from him dated 25 September to the plaintiff, which refers particularly in its second paragraph to the provision by Mr Woodhouse of an opportunity to Mr Marsden of responding to issues which arose during the course of "fresh" allegations and previous allegations, a letter relating to D16 (or D15), and the preparation by Mr Lee of an extensive compendium of material relating to this particular complainant. Thus it is plainly established, it is said, that the plaintiff knew of the allegations long before the defendant did and was well able to meet them and had marshalled information to attack them. Certainly in early February 1999 he had material relevant to the credit of D15 and D16 (the defendant relies upon my judgment above cited in relation to precluding the defendant from inspecting material) to put to Mr Woodhouse (T1268 and paragraph 14 of Mr Lee's affidavit of 20 April); the vast bulk of material related to these (T1275.55).

65 The defendant urged upon me that it may be accepted that initial opposition to the application to amend was made by the legal representatives on instructions from the plaintiff who, in fact, had left them in ignorance of the true position. History casts doubt as to what is said to be the bona fides of the plaintiff in that his true situation has never been disclosed, by him, to the Court. Thus, the Court should scrutinise carefully the evidence relied upon for the plaintiff in support of a submission that unduly burdensome investigations would be required to enable a response to be made to the D18-D25 allegations.

66 After the allegations had been put on 29 January 199 the opportunity was given to the plaintiff to provide to Mr Woodhouse any material which the plaintiff believed would be of assistance to him in refuting them (see Mr Lee's affidavit of 20 April, paragraph 11). Mr Lee thought that if such material was not provided the report would be sent to the DPP not presenting a true picture in regard to the allegations (T1263). The purpose of providing the information was to dissuade Mr Woodhouse from recommending prosecution to the DPP (T1264) by demonstrating the weaknesses and errors in the Police material and that any prosecution was doomed to failure (T1296).

67 From early February the plaintiff actively undertook gathering material to put to Mr Woodhouse, instructing Mr Potter on 4 February to issue a subpoena for the criminal record of D20 (Exhibit N), having persuaded Mr Potter of its relevance to the defamation case (T1186-8); those records were produced on 11 February, copied and provided to him. Information was also obtained from the plaintiff's bank to address an assertion in D20's statement.

68 On 1, 5 and 11 February and 9 March Police material was produced, copied by Phillips Fox and provided to the plaintiff. The statements of D17 to D25 (being Exhibit F) were part of that material produced on 11 February (T1081-5; Ms Gillingham's affidavit 17 March and 10 April). This material was provided to the plaintiff by Phillips Fox (T1264; Mr Lee's affidavit of 20 April); about this time Mr Lee informed Mr Singleton of the Crown Solicitor's office of the plaintiff's anxiety to provide material to Mr Woodhouse. This material was also relevant to the defamation actions, particularly to the credit of D15, D16, D20 and D22 (T1267-9).

69 On 12 February the plaintiff caused a copy of the Police material to be delivered to Mr Lee who commenced work on it on 15 February and it included material about D19, D20 and D22 (T1267-8).

70 On 18 February Mr Potter received the defendant's additional particulars and the D17 - D25 statements. These he gave to the plaintiff and later, in conference, went through each statement with him (T1183). The plaintiff had told Mr Potter that all those statements had been put to him on 29 January (T1183-4). Mr Potter however did tell the plaintiff that when he provided the particulars to Mr Marsden he told him he would not be involved in investigations concerning them (T1194.20).

71 Exhibit L in the proceedings, the affidavit Mr Whittaker of 1 March 199, a solicitor employed by Corrs, also reinforces, it is submitted, the availability to the plaintiff of information to enable him to avail himself of the opportunity to meet the allegations in discussions with Mr Woodhouse.

72 At various times during February and March the plaintiff provided Mr Lee with material (T1275.10); he received instructions by correspondence; a very large number of telephone calls and consultations (T1274). Indeed, Mr Lee volunteered that the plaintiff did not need an invitation to provide material after 29 January 1999 (T1293.30). He had discussions with the plaintiff about the problems with the material and the plaintiff provided him with certain files relating to D22 in connection with the allegations that D22 had made in the statement being part of Exhibit F with the intention of exposing his unreliability (T1291). By 25 February Mr Lee had material ready to put to Mr Woodhouse and was in a position to speak to him about the allegations and arranged a meeting for 8 March (Mr Lee's affidavit of 20 April paragraphs 16 and 17).

73 The meetings of 18 and 22 March are described in Mr Lee's affidavit of 20 April. Mr Woodhouse gave evidence (T968.35) that Mr Lee put forward documents for his client and that Mr Woodhouse was given access to a large volume of material which included material produced on subpoena (T988-9). Mr Woodhouse said that the material, in effect, was the plaintiff's responses to the allegations put to him on 29 January 1999 (T990.5).

74 Thus, the defendant argues, that the plaintiff was aware of the issues in the D17 to D25 allegations of and from 29 January and acted promptly to collate evidence to demonstrate their falsity and to corroborate his denials. He was provided with copies of the Police materials including the particular allegations the subject of the amendment application. The plaintiff appreciated the importance of presenting to Mr Woodhouse through Mr Lee whatever information he could so as to persuade the former that the allegations were false and that a prosecution would fail. Equally it is clear that the plaintiff was active in obtaining through Messrs Phillips Fox and others and presenting through Messrs Corrs, material for Mr Lee to put to Mr Woodhouse. Both Mr Lee and Mr Potter established that the plaintiff himself undertook the work. It thus may be inferred that the plaintiff knew of the charges, evaluated them and took such steps as he considered necessary in each case to refute them. As a matter of chronology by 25 February a week after the defendant's intention to amend the particulars in respect of D16 to D23 was known, the plaintiff was in a position to put submissions to Mr Woodhouse. The defendant points out that the disclosure of these activities resulted from the evidence given by Messrs Lee, Whittaker and Flynn and that none of the affidavits filed by the plaintiff in respect of the Motion to amend refer to them. Mr Potter admitted (T1192.35) that Mr Marsden had not told him that he had caused to be provided to Mr Lee material directed to the allegations that had been put at the interview of 29 January.

75 By reason of the plaintiff himself not giving an explanation to the Court by way of evidence on this application, less weight, or indeed no weight, should be given to the evidence on information and belief deposed to in Mr Potter's affidavits of 14 and 19 April. This failure the defendant says is significant. It was a failure candidly to put before the Court the true situation of Mr Marsden in relation to this application, a failure which cannot be either overlooked or underestimated. Mr Marsden needed to demonstrate that his ground for opposition to the application should be accepted with the result that this becomes an exceptional case and the defendant's application be refused with the effect that in the end there is no trial on the merits.

76 The defendant submits that it may be inferred that the plaintiff has responded to the allegations which he deemed to require response. I should accept that Mr Marsden has addressed the errors and weaknesses in each of the allegations made by D17 to D25 in his submissions to Mr Woodhouse to the extent that he though it was in his interest to do so. There was no evidence at all that the plaintiff was unable to or did not put to Mr Woodhouse all that he wished to put.

77 Thus, it is submitted, that at least from September 1998, if not since 1995, the plaintiff has had information, including witnesses' statements, to enable him to deny with corroboration sex with underage boys; to deny with corroboration that he had ever been at Costellos and to establish the falsity of each imputation and to meet cross-examination on that issue. The additional particulars raise no matter of surprise or novelty.

78 This last proposition is correct in the sense that it is conformable with the substance of the allegations constituted by the imputations which the defendant hitherto has justified in any event.

79 There is no evidence, it is said, that the plaintiff is surprised by the allegations or is unable to investigate them (this is seriously in issue). The defendant also submits that its particulars have been in the plaintiff's hands since 18 February for a period that is over twelve weeks. The significance of this, it is said, is the failure of the plaintiff himself to give any evidence on matters that would preclude proper investigation, that witnesses have been lost to him (compare the situation at the time of the application for expedition), and thus bring the case within the "exceptional" category. What the defendant here submits is that there is nothing before the Court by way of material which would support a finding of injustice because there would be consequentially some deprivation of opportunity or entitlement as far as the plaintiff is concerned to meet any one or all of the additional particulars. When one looks at the whole of the plaintiff's position there is what one would describe as a "singular gap" which, in the ordinary course, the Court might expect to have been the subject of evidence to demonstrate that degree of injustice that would preclude the granting of the amendments.

80 Reliance is also placed upon my ruling (DLJT: 39) in terms of the material available to the plaintiff having forensic value. Such is its value that I precluded inspection at this stage so as not to compromise cross-examination of the defendant's witnesses (see paragraphs 53 to 56 of that judgment).

81 In the end, the plaintiff's position at its highest proves a desire for further time to enable him to improve upon what is said by the defendant to be an existing capacity in terms of information available and evidence ready to answer the new amendments. This is not a case of injustice nor one of prejudice that cannot be cured and accommodated by the Court, particularly in matters of management.

82 As to the time to be allowed to the plaintiff, this will be a matter for the Court to consider with regard to the information as to the particulars already in the plaintiff's hand and the plaintiff's activities between 29 January and 22 March and whether there are matters peculiar to any one or more components of the application which reasonably require further investigation. The defendant submits that the reality is that the plaintiff already knows the case he has to meet as to each of D17 to D25, has been interviewed about them, has material to challenge them, has responded to allegations made many weeks ago. The steps suggested by the plaintiff in an extremely lengthy memorandum appended to the plaintiff's submissions point to an ideal and perfect situation which the realities both of the case and justice can never accommodate. The plaintiff however will have need only to investigate and supplement his present state of readiness and build upon the already substantial body of material available to him for a long time.

83 On 21 April Mr Potter said that since 18 February 1999 he had caused no steps to be taken to investigate the matters raised in the particulars. All that had had happened was that he had arranged for the Police material to be filed relating to each complainant. He had only looked at Exhibit F containing the statements obtained by Mr Angus and said that he accepted that until such time as he dealt with the information at hand he could not assert with any degree of certainty the nature and scope of the inquiries left to be made (T1164 and T1167). He gave evidence as to particular matters which might be required to be done (see affidavit of 22 March and T1164-7).

84 On 27 April however, Mr Potter said that he had read all the Police material in relation to D18 to D25 and had made notes as to the specific investigations for each complainant (T1204.50). He had done this on 23 and 26 April and that was in respect of the same material as was contained in Exhibit G (T1209 and T1430-1469). Much of evidence (T1209-1242) goes to a desire to corroborate the plaintiff's denials as to Costellos and to the plaintiff's assertions as to his cars and the interior of his house at particular times. The defendant contends that much of the work referred to has been done. The plaintiff has the benefit of his own knowledge, of course, the work performed by Mr Lee, the material available from the extensive Police investigation into each allegation and other information produced on subpoena.

85 Exhibit G contains the material made available in relation to D17 to D25; it is voluminous and I do not propose to go through it in detail even to the extent that Mr Nicholas did (T1520-1524). By reference to the material in relation to D18 the submission is made that the plaintiff has a "flying start" or certainly his solicitors do. There are identified a range of persons who one would expect would be entirely independent and in positions of authority at the Regent Hotel who would have very recently responded to Police inquiries in to these matters thus, at the very least, facilitating such further inquiries as the plaintiff's solicitors say they have to make.

86 In weighing the factors relevant to the exercise of discretion in an application of this kind, it is not a reasonable requirement, the defendant submits, that time be given for the plaintiff to undertake an investigation which leaves "no stone unturned" - an expression which originated in myself. Any litigant in any case may wish for such an opportunity however the evidence in the application does not prove that an investigation of such a kind is necessary or indeed, essential for the plaintiff to enable him to meet the additional particulars. It is submitted, in the light of the material already available to him and the steps he took, particularly in the context of the interview of 29 January and its consequences that he is already in a sound position. Mr Potter's evidence does not fix the extent of further investigations. I interpose it hardly can. Mr Potter rightly refers to investigations leading to further investigations. On the evidence however Mr Potter is simply unable to state with any degree of certainty the nature and scope of the inquiries left to be made and he can only speak in general terms.

87 The defendant accepts that the plaintiff should be afforded reasonable time. Mr Potter gave evidence in relation to the Hyde Park Plaza Hotel (D25) that it would be six months before any inquiry into that component would be complete. I do not understand that it would take six months of activity exclusively devoted to the Hyde Park Plaza before that component would be attended to. Six months is the period within which the inquiries would be completed in the context of inquiries on other matters also taking place.

88 One must identify the circumstances and determine what would be "reasonable" in the light of such findings. In reality the plaintiff should be provided with a reasonable opportunity to explore and investigate to determine whether there can be generated on a reasonably possible basis material which would assist (not determinatively resolve) the issues in his favour, in meeting of the defendant's case (compare Regina v Alexandroaia (1995) 81 A Crim R 286 at 289). In this context, it is to be borne in mind, the defendant submits, the evidence from Mr Woodhouse, Mr Potter and Mr Lee indicates that at least for the period 29 January to 22 March the matters the subject of the contentious additional particulars certainly have been addressed by the plaintiff. Thus, the point is reached in examination of the defendant's submissions that leaving to one side the resolution of the psychiatric evidence and the impact, if any, of the plaintiff's application in respect of the subpoena, the application of principle to the evidence would inevitably lead to the conclusion that the defendant is not seeking an indulgence but the rightful exercise of a discretion and a principled one to allow amendments in circumstances where the plaintiff should be afforded a reasonable time to meet them and can be compensated in the usual way. The conduct of the defendant in terms of delay cannot be impugned in the light of the chronology; the defendant very importantly has maintained a plea of justification from the initiation of proceedings and the material the subject of the amendment is not novel in its substance though is new in its detail. Notwithstanding that the plaintiff has had information in relation to it, he has the resources available to conduct reasonable further investigation and the whole issue can be resolved on a case management basis, the more so in a defamation action governed by the Defamation Act as amended in 1994.

89 The plaintiff perceives the application to amend by the defendant as one wholly to transform its defence of justification in the middle of the trial.

90 He identifies the proposed amendments as falling essentially into five classes: (a) variations in the dates and places in the particulars relating to D1, D2 and D6 "after the defendant realised that the allegations were false and unsustainable; (b) various scurrilous and irrelevant allegations which could not sustain a defence of justification; (c) allegations in relation to D13 to D16 (not in issue but subject to conditions); (d) fresh allegations relating to D18 to D25 made as a result of new material produced by the Police after the trial began in answer to the subpoena of 18 January 1999; (e) fresh allegations relating to D17".

91 On the question of principle to be applied it is submitted that in essence the discretion is exercised by taking into account various considerations which militate either in favour of or against the amendment: J L Holdings at 169-171 per Kirby J.

92 Particular reference is made to the speech of Lord Griffiths in Ketteman at 220E "justice cannot always be measured in terms of money and in my view, a judge is entitled to weigh in the balance the strains the litigation imposes on litigants particularly if they are personal litigants rather than business corporations, the anxieties occasioned by raising new issues, the raising of false hopes and the legitimate expectation that the trial will determine the issues one way or the other ...." His Lordship added that another "factor" that a judge must weigh in the balance is the pressure on the Courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted "efficiently". The principles above referred to were applied by the High Court in The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 where (at 464) Toohey J noted "it should not be lightly assumed that the `healing medicine' ... of costs has always been a sufficient cure for the disadvantage to the other side". His Honour thereafter (at 465) cited with approval the passage of Lord Griffiths in Ketteman (see also Gaudron J at 482 and Deane J at 448). The important passage in J L Holdings relied upon is that at 155.3 where Dawson, Gaudron and McHugh JJ said "in this case, which is of a commercial nature, the litigants are on the one side a developer and on the other side government, and there is nothing which would indicate any personal strain which would justify the conclusion that costs are not an adequate remedy for prejudice caused by the amendment sought to the pleadings" (emphasis added).

93 The plaintiff contends that this application represents the very epitome of a case where the personal strain which would be caused him if the amendment were granted, requires that the application be refused. Seventeen factors are relied upon in opposition to the application.

94 The first factor is that the amendments are sought to be made at trial in which regard reference is made to the comment of the learned editors of the ninth edition of Gatley at 703.1 to the effect that the "Court has shown itself reluctant to grant a defendant leave to amend his defence where the application is made late in the day, either at, or close to, the trial". Reliance was placed upon a statement of Upjohn LJ in Plummer v Charman (1962) 1 WLR 1469 at 1473 where his Lordship stated "... a proposed amendment made at the eleventh hour must be looked at with great particularity". Whilst as a general proposition his Lordship's statement cannot be categorised as wrong, bearing in mind the context in which his Lordship made it, (an application to amend to add a dubious defence of qualified privilege which would have completely altered the scope of the action) there is nothing, with respect, particularly significant in his Lordship's observation.

95 As Kirby J said in J L Holdings at 170-171 "the proximity of the hearing is clearly a most important consideration". It certainly was an important consideration in J L Holdings given the peculiar circumstances where an amendment was refused six months prior to the commencement of the hearing. In the instant case the application was made after the commencement of the hearing, namely at trial and, of course (even the defendant would not gainsay this), that factor is one which must be taken into account. The plaintiff contends that there is a public interest in parties readying themselves completely well before the hearing date. That is so, but it is to be borne in mind that the foundation of the defendant's application is the late acquisition of the information giving rise to the amendment application, notwithstanding what might otherwise be said about the state of the defendant's or indeed, the plaintiff's readiness (noting in particular the plaintiff's amendment of the imputations). It is further submitted that if leave to amend is given readily at a trial then this not only causes problems with Court administration, but also makes parties less likely to attend to the preparation of their case at an earlier date. As to the former component that is stating the obvious; J L Holdings is certainly authority for the proposition that questions of "Court administration" or "case management" are not to predominate at the expense of the interests of justice. As to the latter part of the proposition, if that risk is realised then that is an indictment on the conduct of litigation in this State and litigants who are parties to it will pay an inevitable price.

96 The plaintiff further submits that there is an inevitable large wastage of costs which is far more severe for the party of less financial strength. On several occasions during the course of the hearing to date statements were made about the comparative means of the litigants. There is simply no evidence on this issue. The Court, of course, is not blind to the corporate status of the defendant as the licensee of Channel 7 nor is it blind to the status of Mr Marsden as a successful solicitor. But there the matter must rest. In the context of an application to amend by the defendant in which the plaintiff vigorously asserts that he is being "overreached", the defendant's complaint that there is a complete absence of evidence in relation to the resources, and particularly the financial resources of the plaintiff, is not without justification.

97 It is further suggested in the plaintiff's written submissions that these features make litigation even "more risky for parties who are taking on large corporations; if the large corporations know that they can pressurise the other party by making late amendments this is inimical to the administration of justice". Without evidence this is mere rhetoric and I reject the submission.

98 The submission that the application is made extremely late does state the obvious, but ignores the context to which I have referred in the course of outlining the defendant's submissions. The matter was expedited on 5 May 1998 without opposition from the defendant in circumstances where there were outstanding interlocutory matters to be attended to. The matter was fixed for trial on 8 February 1999 in September 1998. I accept the submissions for the defendant that, in the end, in the light of the development of this amendment application and the history of this litigation the hearing date of 8 February 1999 has, in effect, become academic. By "academic" I do not mean that it is to be ignored in the whole scheme of things attending the defendant's application, but reality demands that it not be treated as some "focal point" or "benchmark" against which all questions of merit of the defendant's application are to be judged

99 On the other hand, I accept the submissions for the plaintiff that this is an expedited matter. Whatever happens, Mr Marsden's action against Channel 7 will not lose its status as an expedited matter. If the merits overall bring it about that the defendant is entitled to amend, that entitlement will be granted in the context of this case having been expedited and appropriate management mechanisms will be put in place and directions given to ensure that that status, as far as reasonably and humanly possible, will not be lost to the plaintiff.

100 The second factor is the lengthy adjournment that is required. It is said that prior to 29 January 1999 Mr Marsden had never heard of D18, D19, D21, D23, D24 and D25 or Steven Brinkworth (see Mr Potter's affidavit of 14 April, paragraph 2).

101 It is said that he has conducted no investigations at all in relation to the allegations involving D18 to D25, Mr Pollard or Mr Brinkworth except for a number of matters referred to in Mr Potter's affidavit of 14 and 19 April and that of Mr Lee of 27 April. (Apparently the plaintiff has received an unsolicited statutory declaration from D17 and an anonymous telephone call in relation to D20 and another statutory declaration in relation to D17 and, D22, of course, was a former client of the plaintiff and Mr Pollard was a former driver.) Mr Potter specifically asked Mr Marsden what investigations he had made in relation to the new allegations and was told that the only investigation Mr Marsden has conducted were those specified in Mr Potter's affidavit. With this proposition the defendant's dealt at length in chief and in reply, particular emphasis being placed on Mr Lee's activities for Mr Marsden in relation to the subject matter of the allegations in the context of the interview of 29 January and the subsequent provision of material to Mr Woodhouse.

102 The investigations and preparations which for the plaintiff, it is submitted, would have to be undertaken in relation to each of D18 to D25 are set out in an appendix to the plaintiff's written submissions. The appendix is a 34 page document in great detail identifying what is asserted to be the steps to be taken in relation to each of the new complainants founded in the evidence given during the course of the application. I am, of course, in no position to determine whether or not in the light of the particularisation of the new allegations each and every step referred to in the appendix is necessary to ensure the preparation of the plaintiff's case in response. That the plaintiff would have to make further inquiries is not in dispute as far as the defendant is concerned: the question is what reasonable time should be allowed for that purpose.

103 There are advanced for the plaintiff a number of reasons why an adjournment of at least six months would be required: the allegations are of some antiquity being allegations relating to events occurring between ten and twenty five years ago. The proof or disproof relating to such matters involves the difficulty occasioned by the frailty of human recollection, the difficulty in tracing documents and witnesses and the like; given that the allegations relate to sexual relations between persons in private these difficulties are made even more acute, it is said, because in that situation the plaintiff can only rebut the allegations by his denial and by resorting to proof of a variety of circumstantial matters in order to give the lie to the evidence put against him. There are difficulties in attending to the gathering of circumstantial evidence on such matters.

104 The plaintiff has not undertaken any preparation at all in relation to D17 - D25 (T1163.30) and, the plaintiff submits, there is a large amount of time which needs to be devoted to the investigations relating to D13 - D16. Although the plaintiff has agreed to the amendments involving D13 - D16, it is stressed that the plaintiff did not come to the trial prepared to meet those allegations.

105 The investigation into the City Plaza Hotel allegations (D25) are the ones that will take at least six months in the circumstances to which I have referred. Important investigations need to be conducted, it is said: whether it existed, whether it was a child brothel, out all the factual statements made by the various witnesses in relation to the Motel are to be checked (T1241.25, T1454.30), as are the people in charge and who owned the operation.

106 Even taking into account the plaintiff's position of denial of ever having attended Costello's, the extension of the allegations to prior to 1974, it is said, gives rise to a requirement in the plaintiff to conduct further extensive inquiries (T1434). In many instances, of course, the plaintiff is involved in proving a negative and this is one of them (that is, his non-attendance at Costello's), and Mr Potter has been confined in his investigations to the period 1974 to 1980. Counsel remarked that given that Costello's and the City Plaza Hotels are apparently brothels, eye witnesses are naturally unlikely to be cooperative.

107 Subpoenas and Notices to Produce will have to be issued and Mr Potter said that that more information that is received the more extensive the investigations are likely to become (T1164).

108 Investigations have not been made into Mr Marsden's house except insofar as they relate to allegations by D1 - D6 (T1215.35) and it will be necessary to make further investigations in the light of the various descriptions and matters raised by D18 - D25 in their statements (T1435). This will require what Mr Potter says to be the most difficult thing, namely to rebuild separate chronologies in relation to each allegation involving interviewing as many people as possible who knew Mr Marsden during the relevant period and finding those people. There is a need to obtain photographs of the house for the relevant periods and details of the work carried out during the period and to seek corroboration as to those matters (T1436).

109 As far as all the new complainants are concerned it is necessary to check out all the facts in each statement to test whether the witness is telling the truth; to corroborate whatever evidence the plaintiff leads on any issue, a task not easy to carry out in order to rebuild exactly what happened specifically twenty or thirty years ago. Included in this exercise is tracing Mr Marsden's motor vehicle ownership. The advice of counsel will have to be followed up by Mr Potter. Thus, it is concluded that the Court really has no alternative than to adjourn the proceedings sine die. By reference to what Kirby J said in J L Holdings at 171, the fact that a lengthy unspecified adjournment is required is a very strong reason why the amendments in relation to D17 to D25 should not be permitted.

110 The defendant points to the material in Exhibit G and by way of example, the material available in relation to D18 which includes the Police running sheets, two statements of D18 of 14 September and 11 November 1998, the statements of D23 of 23 December 1998 and statements of Messrs Guarna, Rubbo, Brinkworth, Clifton, Larson and Burlin in relation to the Regent Hotel.

111 The plaintiff already has carried out investigations as to the configuration of his house and ownership of his motor vehicles and the complaint on behalf of the plaintiff as to the extensive nature of inquiries in relation, at least, into these two areas, if not generally, is exaggerated taking into account first these matters are within the plaintiff's own knowledge, and, secondly, the abundance of material, it is said, already available.

112 Further, in relation to Costello's, the plaintiff has already had the advantage of communications with Messrs Shenkwin and Moran, former doormen at Costello's (T1235-7).

113 The third factor is the expedition of the proceedings. With this I have already dealt and propose to add nothing further. I merely note that there has been no evidence since the time of the application for expedition that any witnesses have died, in relation to, at least, the defendant's case on D1 to D16, or otherwise.

114 The fourth factor that militates, it is said, against the grant of the application is personal stress and the fifth factor is the plaintiff's psychiatric condition. As to the former, of course personal strain, on the authorities, is a relevant consideration. It will be weighed in the scales. With this I have already dealt in the context of J L Holdings, Ketteman and Verwayen. The psychiatric factor will be dealt with separately.

115 The sixth factor, the plaintiff submits, is the fault of the defendant in the late issue of the subpoena. Reliance is placed upon what was said by Lord Denning MR in Associated Leisure at 456: "but when the defendant seeks to plead justification at a late stage, his conduct will be closely inquired into. The Court will expect him to have shown due diligence in making his inquiries and investigations. The Court may well refuse his application if he has been guilty of delay or not made proper inquiries earlier".

116 In context it was almost inevitable that his Lordship would make such a remark. One critical distinction between Associated Leisure and this case is that here the defendant has always pleaded justification. The amendment is concerned only with the addition of particulars of the case that has ever existed on the record. This is not to say that the Court would excuse delay in the sense to which his Lordship is referring. But the passage cited and relied upon by the plaintiff cannot be elevated to an authoritative pronouncement that the Court will refuse an application by reason merely of delay or failure to make proper inquiries even in the context where a plea has always been on the record.

117 It is argued for the plaintiff that after a hearing date was obtained on 18 September 1998 an application to issue a subpoena to the Police could and should have been made. In this context reference is made to Practice Note 51 which does not apply to defamation actions. Guidance however is given as to the procedure for the issue of subpoenas in defamation actions in Murphy v Nationwide News Limited & Anor (Hunt J, unreported, 26 October 1984).

118 Fundamental to the plaintiff's position is an assertion that the defendant knew that the Police were investigating allegations other than those relating to D2, D3, D5 and D6. There were frequent communications between the agents for the defendant and the Police capable of indicating that the Police told the defendant that allegations other than those pleaded were being investigated.

119 The defendant's position is that except as to D15 and D16 there is no evidence that the Police were investigating allegations other than those relating to D1 and D6.

120 In support of his position the plaintiff relies upon annexure B to Mr Potter's affidavit of 2 March 1999 which is a running sheet of Mr Woodhouse dated 2 October 1998 recording a meeting between Mr Woodhouse and Mr Quail. The defendant says on its face this document does not establish that the defendant knew that the Police were investigating allegations other than D1 to D6. On its face this document discloses otherwise because of the specific reference to those complainants now identified as D15 and D16 and Mr Woodhouse calling a halt to discussions of this matter.

121 The plaintiff also relies upon annexure M to Mr Angus' affidavit of 13 April 1999 being a file note recording a telephone conversation between him and Mr Woodhouse. In this regard it is clear that Mr Woodhouse made the point that he was unable to provide any information he has obtained in his investigations to the defendant for use in the defamation proceedings. It was obvious that he had information but was not at liberty to give that out. I do not read this document as doing anything more than state what I have just recited.

122 The plaintiff also relies upon the document behind tab 5 of Exhibit 11; in relation to this I accept the defendant's contention that on its face that whilst pointing to knowledge in Mr Quail, the servant or agent of the defendant as to investigations by the Police, and whilst it does refer to D1, D3 and D5 nothing in it (as at 7 September 1998) points to the defendant having knowledge of investigations into other persons. It is to be noted that Mr Woodhouse advised Mr Quail that he did not think it would be possible whilst criminal investigations were in progress and indeed, that it would be improper, to indicate the nature of any additional evidence the Police may have discovered. Tab 12 of Exhibit 11 is a diary note of Mr Woodhouse of a telephone conversation advising that he would speak only on the record to the lawyers for Channel 7 and would only release information if it was proper to do so.

123 Tab 15 of the same exhibit, being a running sheet dated 8 December 1998 refers to there having been contact between Mr Quail and D15. Tab 16 of the same exhibit is a letter dated 8 December to Mr Angus referring to D15 and D16 and his advice to those complainants not to speak to the defendant's solicitor. The best that can be said from this material is that as at early December the defendant was certainly aware of investigations by the Police into D1 to D6 and D15 and D16, that the Police had equally made it clear that they were not prepared to provide information otherwise than on a proper basis.

124 I ignore the submissions made on behalf of the plaintiff in relation to the comparative resources between the parties. I have already commented on the irrelevance of this.

125 In cross-examination Mr Angus was not able, it is said, to provide any explanation for not issuing the subpoena before 18 January other than he "did not think of it" (T518.54). This is asserted for the plaintiff "not to be good enough". However, at T535 Mr Angus explained that it was not until 18 January 1999 that he issued the subpoena in terms of the effect of the expedition order in May 1998 and the subsequent fixing of the hearing date for trial at a time when a substantial number of interlocutory proceedings still had to be completed. He did not turn his mind to the issue of a comprehensive subpoena until those procedures had been completed. Mr Angus was not cross-examined as to whether the defendant's case on D1, D2, D6, D13-16 had been properly prepared in advance and proper investigations conducted and that the position was that the defendant was simply not ready to proceed when the matter was set down for hearing and the matters the subject of the amendment were simply made to give extra time to investigate the allegations originally made before the trial. Insofar as it was otherwise suggested (T894.35, T931-2) Mr Angus's rejection was firm and credible.

126 I do not find Mr Angus to have "delayed" the issue of the subpoena. I do find that as a matter of fact a subpoena could have been issued between 18 September 1998 and 18 January 1999 but the delay, in my view, is not culpable; I accept Mr Angus' explanation, it is feasible and makes sense. To embark upon a consideration of what would have happened had a subpoena been issued conformable with the defendant's knowledge that there were continuing investigations particularly in relation to D15 and D16, the attitude of the Police, and particularly in the light of the information the defendant apparently had as to the existence of these people as complainants, would be embarking on speculation, in hindsight founded upon, amongst other things, the fate that befell the plaintiff's subpoena issued before Christmas which was met with a successful claim for public interest immunity (Ireland J, 24 December 1998).

127 The seventh factor relied upon by the plaintiff in opposition to the defendant's application is that the plaintiff himself is blameless.

128 Blamelessness of the resisting party (here the plaintiff), is a factor referred to by Kirby J in J L Holdings at 170. In the defendant's case in chief on the amendment there was no suggestion that the plaintiff was in any way to blame for the late amendment. I do not propose to set out the submissions for the parties on this issue.

129 I have held Mr Angus to be without fault in terms of the lateness of the issuing of the subpoena, though I have also held that the defendant knew about D1 to D6 and D15 and D16 by December 1998. That, one would think, would be the end of the matter. I hold that the plaintiff is blameless. This issue is of minimalist importance in my view. There are far more important issues determinative of the defendant's application.

130 The eighth factor is that the defendant has stated in evidence that it was unaware of the fresh allegations not only at the time of the broadcast but also up until 11 February when it inspected the documents produced by the Police. It is stated for the plaintiff that the authorities indicate that a relevant matter to be taken into account by the Court on an amendment application to plead truth at the last minute (which is not the case here: the defendant has always justified - this is an application to amend its case on truth), is the defendant being unaware of the fresh allegations at the time of the initial publication.

131 There is cited on behalf of the plaintiff a statement made by Stocker LJ in Atkinson v Fitzwalter at 221D "... it behoves a defendant to be in possession of all the relevant facts in support of a contention before he makes the defamatory statement and he cannot be allowed to amend on the basis that his statement was unsupported by evidence known to him at that time". It is suggested that that "principle" applies the more so in the light of the imputations the jury have found, the defendant having stated in terms in both broadcasts that the imputations are true, the defendant having repeated the imputations in a second program and having admitted that it intended to convey the imputations (presumably in interrogatories).

132 This is an extraordinary position for the plaintiff to take: it can be of no relevance to the issue of whether or not the defendant should be granted leave to amend its defence of justification. The defence of justification is not limited to the facts known to the publisher at the time of publication (Maisel v Financial Times (1915) LT 953). The substance of the imputations has always been the subject of a plea of justification. The defendant is seeking to amend its case on that issue. I have accepted the defendant's position that the delay (of three months) in the issuing of the subpoena was without fault in the circumstances. I indicate now that I am persuaded that the defendant cannot be criticised for want of promptitude in seeking leave. I am persuaded that the evidence fails to expose a reasonable basis for asserting that the information was or would have been available to Channel 7 before 11 February 1999. I reject this eighth basis advanced for the plaintiff.

133 The ninth factor is the defendant maintaining it still has a viable defence of justification. This is clear from Mr Angus' evidence. The present application does not involve a situation where the defendant will be wholly prevented from mounting a defence which might have led to a successful result for it in the proceedings, so it is submitted. It might be one thing if the defendant had never mounted a defence of justification prior to the trial and had discovered at the last minute that the allegations it had made were true. Even then the Court would be reluctant to grant the amendment, so it is argued.

134 The plaintiff submits that in the present case the defendant said in both broadcasts that the allegations were true and that it was in possession of sufficient facts to justify the imputations clearly conveyed. It is said that the defendant has D1, D2, D3, D5, D6, D13, D15 and D16 with which to run a complete defence of justification. For that reason alone the amendments should not be granted. The defendant is not being prevented from running a defence. It has had a defence of justification and has had one for years. If, on the other hand, it has no faith in its defence as previously pleaded it should not be permitted to "throw mud" at the plaintiff.

135 The defendant contends, as I have indicated, its entitlement to run a "full" defence in accordance with authorities and principles that ensure that the public interest is served in a fair hearing in which it is afforded the opportunity to present a case in full (cf. TCN Channel Nine Pty Limited v Antoniadis (supra) at 691D, 694C, 695C - E). It is to be borne in mind however that relevant to the Court of Appeal's consideration in Antoniadis was the fact that the defendant did not rely on any new facts in support of the proposed defences and there was no suggestion that allowance of the amendment would have caused an adjournment (this is why the Court of Appeal held that my discretion had miscarried). It is said for the plaintiff that in the present case there is a myriad of new facts which will be used to support the new "defences" and these new facts and allegations will cause an adjournment in mid-trial for at least six months.

136 Leaving to one side the determination, in the event that it arises, of the length of any adjournment, I am of the view that the defendant is perfectly entitled to take the position subject to all relevant considerations founded in principle that it must be able to present its full case. It is no answer to say "well, you've got D1 to D16, what more do you need?" The defendant is entitled, in my view, as a matter of principle to seek to present its full case. If the defendant is otherwise entitled to amend, it would be an extraordinary state of affairs for it to be confined to all that was perceived to be "needed" rather than to be in a position to advance all in support of a defence, (cf . Lord Denning MR in Associated Leisure), thereby being deprived of the opportunity to litigate matters that might have ensured that there was a complete answer to the plaintiff's claim. I see no merit in this component of the plaintiff's opposition.

137 The tenth factor raised is the risk of the plaintiff's witnesses dying. There is simply no evidence in advance of the position that was placed before the Court on the expedition proceedings.

138 The eleventh factor is case management principles in the Defamation List.

139 It is stated that as noted by Dawson, Gaudron and McHugh JJ in J L Holdings at 155, "case management, involving as it does the efficiency of the procedures of the Court was in this case a relevant consideration". In J L Holdings a relevant issue focussed upon by the trial judge was the loss of the hearing date and the High Court held that in the circumstances there was no real likelihood of this. The plaintiff submits that in the present case the loss of the hearing date is a relevant consideration.

140 If the defendant's application succeeds and terms are imposed, the hearing date has not been lost but the continuation of the hearing rather will be adjourned. As I have remarked earlier, the continuation of the hearing of this case will be the continuation of the hearing of Mr Marsden's matter with the benefit of its status as an expedited one and that factor will be taken into account in the event of the allowance of the amendment and management being required.

141 The submissions otherwise advanced for the plaintiff under this heading are rhetorical. They really amount to an assertion that a case having gone through the Directions procedure of the Defamation List and being allocated a hearing date will enjoy a status whereby a defendant simply should not be permitted to amend or in some way will undergo closer scrutiny than the application of the usual principles commands. I do not agree. It is unwise, in my respectful view, to make sweeping statements about the conduct of media defendants in invidious comparison to any other litigants in the List in relation to their litigious behaviour vis-a-vis plaintiffs. Equally it is unwise to make broad statements of policy that will apply inflexibly merely because the matter is a defamation matter and has gone through the List.

142 Case management, in my view, should not prevail over the justice of the particular application. Insofar as the plaintiff was trenchant in his criticism of the defendant as an exemplar of media organisations one could, with facility, be critical of the plaintiff for embarking upon the amendment of its imputations. If, as is submitted, late amendments by defendants to justify are the "bane" of the Defamation List, that charge also can be levelled at the tiresome frequency with which plaintiffs amend their imputations at or shortly before trial. An amendment of the imputations, viewed objectively is really a fundamentally more serious step: the plaintiff is seeking to change the very causes of action on which that plaintiff is suing. Any change made as a result of a legitimate application to amend has immense flow-on effects not the least reason for which is that the imputation is the starting point. I do not consider it appropriate to descend into the arena on this issue as I do not consider it appropriate to make "policy" statements in the conduct of the Defamation List as opposed to procedural directions.

143 The amendments to the Defamation Act 1974 in 1994 permit a degree of flexibility. A jury comes and performs its function and it goes: all other issues are left to the trial judge. The Court is therefore not faced with the practical problem of having present a jury whilst contentious matters of law are dealt with. The mere availability of such flexibility however, should not be understood as permitting "open slather" by either plaintiffs or defendants in terms of seeking amendments. The feature of the flexibility is in the management of cases generally but in particular in those trials where amendment applications are legitimately made and granted.

144 In the instant litigation it has been made clear to the parties that it is the desire of the Court, that is of the Common Law Division, that the trial of this action be completed as soon as possible. In the "early days" that desire was expressed in terms that it is the hope of the Court that the trial of this action will finish in 1999. At the end of six months the only component of the "trial" has been the finding by the jury that the publications conveyed defamatory imputations (after a hearing that is measured in mere days).

145 In the context of "case management" and in the event of the amendment being allowed, that factor together with the fact that the case is an expedited one will be accommodated in directions as to the further management of the "hearing" of the trial.

146 The observations I have made above about the non-desirability about making statements of "policy", I have made in full knowledge of the announcement by Hunt J (as he then was) on 14 October 1988 which was cited by Badgery-Parker J in Jones v TCN Channel Nine at 9. His Honour's announcement cannot constitute binding authority and I do not consider that it purports to do so. His Honour was stating general principles of particular concern in the operation of the Defamation List.

147 The plaintiff contends that if the Court allows the defendant to amend its defence in this case there will be almost no situation in which an amendment of this kind will be refused. I do not accept this proposition: it smacks of a "floodgates" argument. If the defendant succeeds in this application it will be on the basis that it has made out a case for amendment on the evidence in accordance with the principles that apply. If it fails it will be for reasons to similar effect. The principles will apply to any application for amendment, the outcome will depend upon the factual material and the application of those principles to the found facts.

148 The twelfth factor is said to be the prejudice to the plaintiff which cannot be compensated by costs. It is, of course, in the discretion of the judge to make an order for costs appropriate to the circumstances of the amendment. These may include an order for costs in relation to the application for leave to amend itself; the costs arising from or occasioned by the amendment or costs thrown away by the amendment, including any adjournment. It will be open to the judge to make an order that the costs be subject to assessment forthwith.

149 Insofar as it is alleged that a costs order will not compensate the plaintiff for any personal stress he endures as a result of the amendment and any adjournment, it is to be borne in mind that the stress and anxiety the plaintiff undergoes in the course of the litigation as a whole is a factor that can be taken into account in the assessment of general damages.

150 I am not persuaded that the plaintiff's submissions elevate this component to the level indicated. It is a matter that is taken into account generally in an application of this kind and is one amenable to appropriate orders of the Court upon its disposition.

151 The thirteenth factor is the defendant's intention to overreach.

152 In J L Holdings, at 153, Dawson, Gaudron & McHugh JJ quoted with approval the statement, cited above, by Bowen LJ in Cropper v Smith where his Lordship said that the Court would not allow an amendment if it formed the view that the amendment was "intended to overreach" the other party. The plaintiff submits the present amendment application is made with such an intention. The plaintiff's submits that if the Court forms the view that the defendant is deliberately attempting to strain the plaintiff's emotional and financial resources for tactical reasons the Court will disallow the amendments.

153 It is not in dispute that the defendant has been in possession of most of the plaintiff's psychiatric evidence and it is asserted that the defendant has been aware of what the plaintiff asserts to be his dire psychiatric state. Any tactics adopted by the defendant must be viewed in the light of its knowledge of the plaintiff's vulnerability in this regard.

154 The plaintiff further contends that the defendant also knows that the longer the case goes on, and the greater the time spent in preparation, the less likely it is the plaintiff will be left with any money in his hand at the end of the case even if he wins. This will arise because there is a clear differential, it is said, between the costs incurred by a plaintiff and those which are obtained upon assessment.

155 The purpose in bringing defamation proceedings is to attain a solatium for hurt to feelings and compensation for the fact that the plaintiff's reputation has been damaged. It is important that such proceedings be resolved quickly; the risk being that if they are drawn out the purpose of bringing them is defeated. The plaintiff submits that if one starts from the premise that if the Court formed the view that the reason for the large number of complaints was to pressurise the plaintiff it would decline the amendments. That premise is critical.

156 The plaintiff submits that various matters show that the defendant's intention in pursuing the amendments is to overreach rather than to raise allegations which the defendant believes are likely to succeed.

157 It is contended that there has been no full investigation by the defendant of the allegations relating to D17 to D25. It is further put that the defendant has not attempted to "sift" or to select a number of the allegations from D1 to D6, D13 to D16 and D17 to D25 on the basis that it cannot be that all of these complaints are of equal merit. There is no reason why the defendant should not be put in a position where it has to elect which allegations to press and which to forego. If the defendant does maintain that all the allegations are likely to succeed, it is no doubt content, so it is asserted, for a special costs order to be made in relation to the costs occasioned by any particular of truth which is rejected (and on the basis that this order will be made come-what-may). This is disputed by the defendant.

158 It is said that the evidence shows that Mr Angus deliberately held off notifying the plaintiff in relation to the new amendments respecting D13 to D16. He no doubt knew, it is submitted, that the plaintiff would want time to investigate these matters and yet deliberately put him in the position where he either had to seek an adjournment of the proceedings or else proceed with the case without proper investigation of the particulars relating to D13-D16. (See Exhibit 11 tabs 18 and 25; affidavit of Mr Angus dated 4 February 1999).

159 The defendant submits that that submission is not open and indeed, is not supported by the evidence and that such evidence as there is to the contrary (T541.15-30). The proposition itself was not put to Mr Angus in cross-examination. In any event the evidence is that the plaintiff has extensively investigated the allegations made by D15 and D16. In the context of overreaching, the defendant's submissions in relation to D13 to D16 to the effect that the evidence clearly establishes that the plaintiff knew of the allegations long before the defendant did and was well able to meet them and had marshalled information to attack them for the purposes of putting material before Mr Woodhouse, must be taken into account.

160 The plaintiff asserts the defendant is aware that the allegations involve matters of antiquity, that the investigation and preparation of such a case involves extra preparation and cost, and that the increase in the length of the case by reason of the fresh allegations will greatly distort the difference between the costs which are payable on assessment and those which are actually incurred. This is disputed by the defendant: no evidence being offered in support by the plaintiff.

161 Further, it is submitted, that the defendant is well aware of the weakness of many of its allegations made in its particulars of truth.

162 The plaintiff suggests that the Court will form the view that there has been absolutely no attempt by the defendant to abbreviate this amendment application and again, the differential between the costs which are payable on assessment and those which are payable between solicitor and client are here relevant.

163 Many of the allegations made in the particulars are "scurrilous" and I will deal the submissions in that regard in due course.

164 Further, reliance is placed upon what is asserted to be the "holding off" of issuing a subpoena to the Police until just before the trial (as to which see my findings above).

165 The defendant has made late amendments to the particulars in relation to D1, D2 and D6 and in particular, the amendments show that there has never been any proper preparation of this component of the case.

166 In the light of these matters, if accepted, the Court may infer that the defendant is using the amendment application as part of the general tactic to try to overreach the plaintiff. If the Court concludes that this is the case, the amendment application should be declined.

167 The defendant maintains its position as to what is meant by intended to overreach in that it is submitted that for the purposes of an application to amend the relevant consideration is whether or not the evidence establishes the application is made mala fides (cf. Douglas v John Fairfax & Sons Pty Limited (1983) 3 NSWLR 126 at 135C and Jones (supra) at 5). It is the general submission of the defendant that there is no evidence that the defendant or its representatives have acted otherwise than bona fides in relation to this application.

168 Further, although it was put to Mr Angus in cross-examination that he delayed in issuing the subpoena to disrupt and delay the proceedings (T857.1, T534.35), he denied that he knew at the time when he issued the subpoena it had the potential to interrupt the proceedings by causing extensive delay. It was not put to Mr Angus that he had not given truthful answers in cross-examination and thus his denial should be accepted.

169 With respect to the submission made by the plaintiff that the present amendments are made with the intention to overreach the plaintiff the defendant responds that it is not open to the plaintiff to so submit. It was not put to Mr Angus that the defendant's purpose in applying to add particulars to its defence was mala fides. It was not suggested to Mr Angus that he was not of the honest belief that the application to amend was for the legitimate purpose of the defendant resisting the plaintiff's claim for damages.

170 The defendant, of course, does not accept that the claim made that the plaintiff is suffering a "major depressive episode" of such magnitude that he is disabled from prosecuting the litigation.

171 The submission that the defendant knows that the longer the case goes on for the less likely it is the plaintiff will be left with any money is met with the proposition that such a submission is not open to the plaintiff. It was not put directly to Mr Angus that his manner of conducting this litigation on behalf of the defendant was to deliberately financially exhaust the plaintiff or that he had adopted an illegitimate tactic for the purpose of causing the plaintiff to incur unnecessary expenditure. The defendant submits there is no evidence upon which the Court could make a finding that if the plaintiff was successful and obtained a costs order in his favour he will not adequately be compensated for costs.

172 The importance of having a rapid resolution of the litigation should not prevail over the need to ensure that resolution is of all matters in issue at the trial on the merits, so submits the defendant. There is no evidence upon which the Court could come to a finding that the reason why the defendant particularised several complainants was to "pressurise" the plaintiff. The evidence is to the contrary (T542-543). The defendant carefully chose which complainants to particularise (T931). Further, it appears Mr Woodhouse's report to the DPP does contain a complainant not in fact particularised by the defendant.

173 As to the suggestion by the plaintiff that various matters point to the defendant's intention to overreach him, Mr Angus denied that he did not have sufficient material to plead and maintain a plea of justification, asserted that the he did exercise caution (T541.34-542.40; T892.39-893.57; T894.35-894.38; T895.32-895.36; T896.54-897.20; T897.30-897.32).

174 I have considered the evidence generally and specifically. Mr Angus was thoroughly cross-examined, was firm and candid in his responses and I accept his testimony. These matters of intended withholding, delay and intentional conduct I find not to have been made out.

175 At the time an application to amend is made there is no way of evaluating the evidence which may subsequently be called to support the case of which particulars are given. The quality of the evidence is always for determination at the trial: Tedeschi (supra) at 12. In a defamation case the plaintiff may ask that a defendant's conduct be taken into account only if it demonstrates a lack of good faith or is improper or unjustifiable. However, "the vigorous persistence in a legitimate defence cannot be used to aggravated the damages. The manifest unfairness of any contrary view is obvious": Steele v Mirror Newspapers Limited (1974) 2 NSWLR 348 at 379D per Samuels JA.

176 As to the allegations as to deliberating withholding the issue of the subpoena this has been dealt with above and I have made my findings.

177 With respect to the late amendments made to D1, D2 and D6 Mr Angus gave an explanation therefor at T932 on which he was not cross-examined. I accept his testimony.

178 In response the plaintiff identifies his central submission as that the defendant in the amendment application is "attempting" to overreach him. I presume the plaintiff is being consistent here. The plaintiff hitherto has asserted the defendant is "intending" to overreach. I take this expression in the written submissions to mean no more than the defendant is intending to overreach or intending to attempt to overreach. The key point, the plaintiff says, is that the Court is not dealing with the situation where a dozen potential complainants were provided by the Police and where the defendant has carefully looked at each one and decided to plead (say) three complainants which it asserts are credible. Instead, the defendant has simply thrown every allegation that it can at the plaintiff. Many of the allegations are obviously flawed, it is said; however, the defendant submits that it is entitled to force the plaintiff to "spend many tens of thousands of dollars investigating these complaints, adjourn the hearing of this case and face up to a trial which will probably be three times longer by reason of these additional allegations". I find this somewhat rhetorical and question-begging: the defendant has the right to seek leave to amend to present a case or in the instant application, an additional or expanded case in support of the plea of justification which has always been on the record. The defendant can take the view and take the view at its peril, that each and every one of the proposed new allegations is viable and credible.

179 In any event the plaintiff persists in asserting that the matters just referred to come on top of a variety of other circumstances which add to the "pressure" put on Mr Marsden. These matters include his fragile psychiatric condition (which will be dealt with later); the difference between actual costs and costs on assessment which differential increases the longer the period of preparation and hearing (there is no evidence in this regard and in any event, an order for costs can, in my view, ultimately accommodate this problem if it exists).

180 A further matter on top of everything else is asserted to be that the very "amendment application itself has been stated to be approximately four weeks longer than most defamation trials". It is certainly the longest interlocutory amendment application in my experience. It has certainly, in its duration, exceeded defamation trials over which I have presided. The length of the application can be viewed as no more than a fact of life during the course of this hostile and vigorously contested litigation; the defendant proposed to amend, sought leave to amend, the application has been vigorously contested and as it so happens took about eight weeks. There, that aspect can rest.

181 The plaintiff submitted that the defendant should be invited to nominate which of the allegations from D13 to D15 it believes are most likely to succeed (a suggested invitation, it is to be noted, made in the context where no opposition is advanced to the amendments incorporating D13 to D16). If the defendant, it is said, is not in a position to say which ones are most likely to succeed, that is an additional ground for refusing the amendment application. If on the other hand, the defendant is able to indicate which allegations have a strong likelihood of success, it should be invited to rely upon those allegations and those alone in the particulars which it seeks leave to add. It is the defendant's refusal to "prune" its case which is most indicative of the defendant's intention to overreach. What reason, it is asked, can the defendant have for pressing all of these allegations in this situation other than the stringing out of the plaintiff?

182 The short answer, as I have already indicated, is the defendant's belief that it is entitled to present its full case, it is aware of the perils of presenting a weak case but it should not be shut out, all other things being equal, from presenting that case in its possession to meet the plaintiff's claim for damages. If the leave amendment application is successful, the quality of the evidence will be determined at the trial, the outcome of which determination might have a profound effect on the ultimate outcome of the litigation. I reject therefore the plaintiff's submission as to the defendant failing to "prune" its proposed case.

183 The plaintiff urges upon the Court the need to be astute to prevent large media companies from engaging in tactics which render the whole purpose of proceedings futile. I agree. When I say "I agree" I say no more than that the Court should be astute to ensure that no defendant (or indeed, plaintiff) engage in tactics which render the whole purpose of proceedings futile. As I have made clear above, I am not prepared to make sweeping statements in the course of a judgment as to the conduct of media corporations in defamation actions.

184 In relation to the question of costs the plaintiff relies upon the failure of the defendant to suggest that it is prepared to submit to such a costs order. The defendant, in my view, is entitled to abide the outcome of the application.

185 It is further submitted by the plaintiff that the defendant's submissions that Mr Angus did not deliberately hold off anything in notification of the plaintiff with respect to D13-D16 is without foundation. It is positively asserted by the plaintiff that Mr Angus did hold off. The evidence, it is said, discloses that the defendant through Mr Quail was investigating allegations concerning D13 and D15 prior to 2 October (Mr Woodhouse affidavit 2 March 1999 annexure E). The same evidence discloses that on that day the defendant through Mr Quail learnt that both D15 and D16 were "police witnesses" against the plaintiff. The defendant made contact with D13 and D15 no later than 10 and 11 November 1998 (Mr Angus' affidavit 4 February 1999 paragraphs 3 and 13), and took their signed statements on 9 and 11 December 1998 (Mr Angus (supra) paragraphs 7 and 14). The particulars concerning D15 were notified to the plaintiff on 6 January. When the plaintiff finally got a copy of the 11 December statement provided by D15 on which the 6 January particulars were based (Exhibit 11, tab 18), it became clear that Mr Angus's statement that the particulars based on the statement were provided as soon as possible was false: the proposition advanced by the plaintiff is simply that the particulars could have been drafted by anyone in five minutes. There is some ingenuousness, I respectfully suggest, in this proposition advanced for the plaintiff. When one views the chronology realistically, the submissions is without merit.

186 The remaining factors out of the original seventeen are fourteen - subpoena to the Police was an abuse of process; fifteen - documents obtained as a result of an agreement to abuse the process of the Court; and sixteen - breach by the Police of their duty to notify the plaintiff of the subpoena and the proposed agreement. It is appropriate that these matters be dealt with on the question of the subpoena.

187 There is the additional ground namely, seventeen which has already been referred to, namely the antiquity of the allegations and the difficulty of investigations.

188 It is said the fresh allegations involve matters going back to the 1970s. This is apparently the case on an overview of all the particulars. In that situation the plaintiff submits the words of May LJ in Atkinson v Fitzwalter at 210 are apposite: "it must be remembered that fraud is a very serious allegation to make against a person, as for instance, would be an allegation of criminal offence and may, if not raised at the outset, be difficult, if not impossible, properly to investigate at a later stage in the proceedings".

189 In relation to this seventeenth factor the plaintiff says that he has had enough difficulties in trying to investigate the allegations made against him in the four years since the proceedings were first commenced. It is simply not fair to him to postpone the hearing indefinitely so that Channel 7 can see if they can put together a case that they have already had four years to investigate and which involve allegations which stretch back ten to twenty five years.

190 This reverts to the "premise". As by now should be clear I do not find the defendant intentionally to be overreaching the plaintiff (even taking into account some of the scurrilous particulars to which I refer below). The fundamental reality as I find it on the evidence is that the information came to the defendant late; it was not otherwise available earlier. Such information, for example, relating to D15-D16, was not deliberately withheld from the plaintiff who, in any event, could not have been surprised thereby. It is not a case of the defendant "seeing if it can put together a case". It is, as I see it, in context, a bona fide application for leave to expand an existing case of justification which it is free to make.

191 The amendments concerning D17 are not consented to. Although the plaintiff still has much to do, it is said, to prepare to meet a case involving D17, it is not asserted that this prejudice is the reason why this amendment should be disallowed. Thus, of the seventeen factors relied upon in relation to the other amendments, all factors are relied upon except the need for a lengthy adjournment. There is one caveat: if amendments are made other than in relation to D1, D2, D6, D13-D16 then a lengthy adjournment will be required. In substance therefore, D17 is in the same category as D18-D25.

192 The allegations in relation to D1, D2 and D6 are the subject of the plaintiff's Motions filed on 7 May 1999 to disallow certain amendments purportedly made by leave but which were not in fact "consequential". Further amendments were proposed in relation to D6 in the First Consolidated Particulars of Truth of 18 February and then by letter dated 17 March. These allegations have all been changed which changes are "presumptively prejudicial" and time consuming. For example, in relation to D1, the allegation is now dated at mid-1976 were as it was formerly dated January 1975. As to D2, by way of further example, this was formerly 1979 which was then changed to 1975 and then May 1975 (with a change of birth date from 1965 to 1961). As to D6, the allegation originally related to an unidentified place at some time between 1982 and 1988; then Easter in 1984 at Noosa; then Easter in 1983 at Noosa; it is now 1982 at some unspecified place.

193 It is contended that these variations represent an irresponsible approach on the part of the defendant and are indicative of a failure properly to check dates or otherwise to make proper inquiry. The evidence is (T932) that the defendant's solicitors had no contact with D6 until February 1999. It is submitted that if a basic check had been made as to D6's age it would have been realised that the allegations in the original particulars even if proved to be true could not prove the truth of the imputations because D6 was 18 at the relevant time. Thus, it is argued that the amendment should be disallowed or alternatively, taken as evidence that the defendant is trying to overreach the plaintiff. I reject both submissions. The plaintiff has consented to these amendments. The "changes" no doubt will be matters which will confront the defendant at trial.

194 The defendant's response is that as to D1, D2 and D6 Mr Angus was not cross-examined upon the evidence he gave at T932. As to D13 and D16 in circumstances where the plaintiff had had ample opportunity to investigate these allegations, no condition should be attached to the amendment as sought by the plaintiff. In this regard see the letter of 14 October being annexure B to Mr Lee's affidavit of 28 April 1999 and the letter of 20 September 1998 being annexure C to Mr Woodhouse's affidavit of 2 March 1999. I accept the defendant's contentions in this regard.

195 The plaintiff also contends that the amendment should be disallowed by reason of scurrilous allegations in the particulars and they themselves represent an intention on the part of the defendant to overreach the plaintiff.

196 It is to be borne in mind that the plaintiff's imputations set out at the beginning of this judgment are concerned with sexual intercourse and the defendant's contextual imputations are concerned, as to the first program, both "homosexual intercourse" and "sexual intercourse" and, in relation to the second program, with "homosexual intercourse".

197 The Second Consolidated Particulars open with a preamble which purports to define "homosexual intercourse" to include anal penetration, fellatio, the continuation of either of those forms of intercourse, mutual masturbation and the striking of a male person by another male person during sexual intercourse or as part of foreplay to sexual intercourse. The plaintiff is prepared to accept that the ordinary meaning of intercourse in the context of any of the imputations can only be anal intercourse or fellatio or the continuation of either. Recourse to the Oxford Dictionary and the Macquarie Dictionary to elicit some definition that speaks merely of "sexual gratification" does not satisfy me. I have no difficulty at all in coming to the conclusion that where "homosexual intercourse" or "sexual intercourse" is referred to in the imputations, according to its ordinary meaning, it has only one of the first three "connotations". "Mutual masturbation" and "striking" cannot be "intercourse" but evidence thereof may be admissible in respect of activity constituting the first three "connotations".

198 Indeed, I will go so far as to say they are the only meanings the imputations can have as arising from the programs telecast by the defendant. They are the only meanings the imputations do have. There is absolutely no room for manoeuvre as far as questioning the meaning of the imputations.

199 As was stated in TCN Channel Nine v Antoniadis (1998) 44 NSWLR 682 at 7202F "the proper function of particulars is to limit the issues under the pleadings and inform the opposite party of the case he has to meet. In general a party providing particulars need not disclose the evidence on which he relies but particulars may have this effect". Their Honours then went on to cite with approval the statement of Isaacs J in The Queen v Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738 at 740-741. This statement of principle also conforms with the statement in Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664.

200 Mr Stitt Q.C. who argued this aspect of the application for the defendant placed reliance upon what Hunt J said in Sims v Wran (1984) 1 NSWLR 317 at 321G: "there is often a fine line between giving particulars of the case which a party proposes to make and disclosing the evidence by which that case is proposed to be proved. It all depends on what is necessary to guard the other party against surprise. If the other party cannot be otherwise so guarded, it may sometimes be necessary for a party to disclose his evidence, or at least a broad outline of it. The starting point is what is necessary to guard the other party against surprise; the starting point is not what can be said without disclosing the evidence to be lead. It is however important to emphasise that, ordinarily speaking, particulars are concerned with the nature of the case to be made by way of evidence; ..."

201 That is, the case to be made by way of evidence on the particular issue. There must be some logical connection between a fact, matter or circumstance particularised and, if it is proved, the issue to which the proof of such fact, matter or circumstance goes to establish. To shortly state an example: if it is particularised that on day X the plaintiff had anal intercourse with person Y at place Z and those facts are proved, their proof will logically be connected with the substantial truth of one of the imputations. At the other extreme, as exemplified by Mr Reynolds in argument, a particular that whilst in London in 1975 the plaintiff shot a brown dog would obviously have no rational connection at all with that ultimate issue to be proved.

202 I have already remarked upon the obvious meaning of sexual intercourse involved in the considerations of the imputations and contextual imputations. One component of many of the particulars attacked by the plaintiff is the reference to "sexual activity". To state that "sexual activity" took place between the plaintiff and X is a totally insufficient particularisation of a case in support of the substantial truth of the relevant imputations.

203 A further component of this segment of the argument on the amendment application is what clearly appears to be an attempt by the defendant to rely upon "tendency" evidence.

204 Mr Stitt argued that Part 3.6 of the Evidence Act 1995 (NSW) has no application in the instant litigation because character, reputation, conduct or tendency are facts in issue. There is thus no requirement that the notices referred to in s 97(1) will be required. Regulation 6(2) requires that the notice must state the substance of the evidence of the kind referred to in the subsection and if that evidence consists of or includes evidence of the conduct of a person particulars of the date, time, place and circumstances at or in which the conduct occurred and the names and addresses of each person who saw, heard or otherwise perceived the conduct so far as they are known to the notifying party. Even if Mr Stitt is correct in asserting the non-application of Part 3.6 of the Evidence Act 1995 (NSW) to the circumstances of this case, (which I presently do not decide) the requirements of the notice just referred to pretty well indicate the kind of particulars that the defendant is obliged to give.

205 The first component of the Second Consolidated Particulars attacked by the plaintiff was item 20. Mr Stitt Q.C. for the defendant conceded that standing by itself this set of "particulars" would not "stand a snowball's hope in hell". It has the same level of hope, in my view, even included with the other particulars and cannot be saved by seeking to convert it into some form of "summary" or "conclusion" based upon that which precedes it. I do not propose to repeat the terms of paragraph 20. I merely note that it covers but twenty four years, does not discriminate between ages of boys let alone when. I accept the plaintiff's submission as to item 20 as a set of scurrilous particulars. Item 20 will be "struck out".

206 Paragraph 19 of the particulars purports to particularise the defendant's case in relation to D25. Nowhere in those particulars is there any allegation of sexual conduct as between the plaintiff and D25. Indeed, from internal material, D25 did not meet the plaintiff until 1992 when he was 26 years of age. After that there are the most generalised allegations not about the plaintiff, but about a place called the City Plaza Hotel and what went on there. In what conceivable way can the plaintiff view the contents of paragraph 19 as either directly or indirectly "limiting the issues" or informing him of the "case" he has to meet, that is, of a case that bears a rational relationship with the proof of the substantial truth of the imputation? I would rank the particulars under paragraph 19 in the same category as those under 20. They will be "struck out". The defendant will not be granted leave in respect of D25.

207 The next paragraph the subject of criticism is paragraph 16 relating to one Trevor Michael Pollard. The same observations relate to paragraph 16; they will be "struck out".

208 As to paragraph 15, it makes no allegation directly or indirectly against the plaintiff in respect of the plaintiff's conduct with a young boy in a sexual sense. Indeed, in sub-paragraph 5 of paragraph 15 wherein Mr Brinkworth purports to remember merely the plaintiff arriving at the hotel with a "young scruffy looking teenager", it does not coincide with any other particular especially that set out in paragraph 10 where an event is described as having taken place at The Regent Hotel.

209 Paragraph 15 without more is a, generalised recitation that fails to specify any particular matter rationally capable of going to the substantial truth of the relevant imputation. It will be "struck out".

210 For similar reasons I would not allow that which is purported to be particularised in paragraph 9(4), (12) and (14).

211 Paragraph 8 of the particulars deals with D16 and at great length. I will not allow paragraph 8(26). What the defendant has failed to do is to specify with precision what acts took place. For example, in sub-paragraph (18) what I understand to be arrangements for meetings that are alleged to have culminated in homosexual intercourse went on until 1994 or 1995 when D16 was aged 23 or 24. Whilst I do not propose to "strike out" these paragraphs the defendant will be confronted with the situation where the greatest of care will have to be taken by it in leading evidence from this complainant and in leading the "relevant" evidence, and by relevant I mean relevant to the proof of the substantial truth of the imputations. In relation to D16 I consider sub-paragraph 8(23) to be an irrelevant assertion.

212 With respect to paragraph 7 dealing with D15, clearly sub-paragraph (20) must go. It is an irrelevant assertion. One possible explanation for it remaining in the Second Consolidated Particulars is some indirect relevance to what have become known as the "Anita Cobby imputations". It is argued by Mr Stitt that this goes to the "gravity" of the conduct. It does not. The gravity is contained in the imputation which if proved to be true will make clear to the world how serious the conduct of the plaintiff was. What is asserted in paragraph (20) cannot on any rational basis go to prove the truth of any imputation.

213 No argument was addressed to sub-paragraph (19) the relevance of which escapes me, however I will make no order in regard to it.

214 Otherwise, complaint is made about the use such expressions as "sexual contact" or "encounter". I see no necessity to conduct a strip and burn operation in relation to the particulars concerning D15 to cure these defects. The defendant again will have to exercise caution in the presentation of its case in chief in relation to this complainant.

215 Whilst the plaintiff has to some extent succeeded on the cause of scurrilous particulars, I do not find that outcome to evidence intentional overreaching. The plaintiff can seek his remedy for the defendant's conduct in this regard in the area of aggravated damages - if a case therefor is made out at the relevant time.

216 The point thus has been reached where what is said to be the penultimate bar to amendment is to be considered.

217 I turn now the psychiatric component. On 23 March 1999 it was asserted on behalf of the plaintiff that he would suffer an extreme psychiatric reaction from an adjournment occasioned by any amendment. This was put in response to a question from myself to the effect that if the defendant was otherwise entitled to a grant of leave, should it be refused because of the plaintiff's "extreme psychiatric state" because of which the consequence of the grant leave in terms of adjournment and delay will cause him grievous injury?

218 On 1 March 1999 the plaintiff consulted Dr Dent whose diagnosis was that he was suffering from such a degree of depression as to amount to a very serious illness.

219 Dr White was qualified by the defendant to interview the plaintiff on 23 March 1999, in order to determine whether the plaintiff had developed a psychiatric disorder which would put his life in danger if the Court hearing was prolonged or whether he was suffering understandable distress from the lengthy and highly personalised proceedings.

220 Shortly stated, it is submitted for the defendant that Dr Dent's evidence was that his view is that it is in the plaintiff's best interests to continue with the litigation to its end for as long as it takes under his supervision with appropriate medication because he is able to cope (T684). There is no requirement for hospital treatment nor for referral to a mood disorder specialist; the likelihood is that he will recover (T685) and it is Dr Dent's hope and goal to manage the plaintiff through the litigation and it is his expectation that this will be achieved. He will do his best to support and help the plaintiff to cope through any period of interruption or postponement of the trial (T695).

221 Except for an occasion of 20 January 1999 (as to which there is no report nor indeed, any need for medication), the plaintiff had not consulted Dr Dent between 4 September 1998 and 1 March 1999 (T693). Dr Dent's report of 8 September 1998 (annexure A to Mr Potter's affidavit of 14 September 1998) reports on the consultation which took place on 4 September 1998. His view was that Mr Marsden was then suffering from a mood change rather than an illness as a result of an event at Mascot airport. Medication was prescribed in the form of Nortab and the plaintiff was then able to cope.

222 Dr Dent had first seen the plaintiff on 21 April 1998 (report dated 18 May 1999); his then view was that the plaintiff had recovered from an episode of severe depression and no medication was prescribed (T688-9).

223 Dr White on the other hand saw the plaintiff on 23 March. His conclusion was that the plaintiff suffers understandable "existential distress and perhaps existential despair about this case (and probably the unresolved Police proceedings). He does not fulfil the criteria for mental illness and the Court case is neither necessary nor sufficient cause for mental illness in any reasonable person. From Mr Marsden's point of view, the Court case is proceedings in an unsatisfactory manner so he is suffering understandable emotional distress which he will not decompensate into a mental disorder regardless of how the case proceeds". Dr White also expresses the opinion that "because the capacity for a psychological stressor to precipitate or perpetuate psychiatric disorder dissipates with the passage of time ... it will be safe, although, distressing for Mr Marsden to proceed with the matter. Furthermore, I believe that he has the psychological resources to deal with the variations in the proceedings".

224 Dr White's observations as to the plaintiff's condition were as follows: the plaintiff's presentation during the interview was not consistent with psychological symptoms; he did not suffer and has never suffered from mental illness, he suffered from distress; the symptoms described by the plaintiff pointed to depression, the symptom, not major depression being a mental illness; the plaintiff's symptoms were not consistent with major depression but pointed to reactive emotional distress. The various symptoms put to Dr White in cross-examination as symptoms of major depression, Dr White said might be due to alcohol abuse. The activities engaged in by the plaintiff including organising the case and continuing as a partner of a law firm, would not be possible for someone who has an incapacitating mental illness. Importantly, the plaintiff's global clinical impression was not of a person suffering mental illness.

225 It was submitted for the plaintiff that the essential difference between Dr Dent and Dr White is that Dr Dent says that the plaintiff is suffering mental illness whereas Dr White says he is not. Dr Dent has said that the plaintiff is suffering a "major depressive episode" (report dated 1 March 1999) and that his illness of depression has been exacerbated with the prolongation of the litigation (T676). He is of the opinion that it is in the plaintiff's best interest to see the litigation through, no matter how long it takes, and with the benefit of his treatment and medication, the plaintiff can continue with the litigation without risk to his physical and mental health. Dr Dent says that the plaintiff can be managed through the litigation and that the plaintiff will able to cope through any period of interruption or postponement as long as he is managed by Dr Dent.

226 Dr White is of the opinion that the plaintiff is not suffering from major depression or mental illness but distress and that it is safe, although distressing, for the plaintiff to proceed with the matter and that the plaintiff has the psychological resources to do so.

227 For the defendant it is contended that Dr White's views should be preferred by reason of Dr Dent not having carried out a full mental status examination which, on Dr White's evidence, was critical for a proper assessment of an individual suffering from mental illness (T714); indeed, Dr Dent's report did not fulfil the minimum criteria for a medico-legal report. There was no history of symptoms, there was no mental status examination and there was no assessment of the plaintiff's substance abuse and alternative stressors. Dr Dent carried out no investigation of the plaintiff's alcohol and marijuana intake. It is suggested that Dr Dent's comments are inconsistent with his treatment responses: in a brief "corridor" consultation which led to a note (being part of Exhibit J), Dr Dent notes he was extremely concerned about the plaintiff but did not recommend any hospitalisation (T671). Dr Dent (T671) recalls that the plaintiff was concerned about the pressures on him over the two weeks prior to the consultation on 1 March. He cannot recall what the pressures were and did not take any notes. In this regard it does appear that Dr Dent was unaware of the Police investigation and of the fact that the plaintiff had been interviewed by the Police on 29 January. Dr Dent made no inquiry of any general practitioner in relation to any medication which had been prescribed for the plaintiff nor did he, in his diagnosis of 1 March 1999, refer to or take notice of the plaintiff's sleep apnoea. Indeed, Dr Dent did not ascertain if the plaintiff was consulting anybody else.

228 In relation to the report made on 8 September 1998 Dr Dent found that the plaintiff was suffering from depression and diagnosed "mental illness" but provided no treatment nor did he refer the plaintiff to any specialist. In short, Dr Dent, the defendant contends, did not explore with his patient beyond the matters subjectively conveyed to him by Mr Marsden.

229 Dr White on the other hand carried out a mental status examination (Exhibit H), made and recorded relevant clinical observations, questioned the plaintiff about his alcohol and drug abuse and unlike Dr Dent did not make a positive diagnosis of mental illness and therefore would not be expected to seek corroborative data to positively exclude substance abuse.

230 In conclusion for the defendant it is submitted that accepting Dr Dent's at his highest, he establishes the plaintiff to be able to proceed with the litigation, it is in his interests to do so and under the supervision of Dr Dent and his present regime, the plaintiff should proceed to the conclusion of the litigation however long it may take. There is no evidence to support the proposition that the plaintiff is presently in an extreme psychiatric state such that a grant of leave resulting in an adjournment and delay will cause him grievous injury or alternatively, that the plaintiff would experience an extreme psychiatric reaction from an adjournment occasioned by the amendment. Thus, it is submitted, that the plaintiff's condition is not a factor either of itself or in combination with others which would prevail over the injustice of shutting the defendant out from raising the additional particulars.

231 For the plaintiff it is submitted that a review of the evidence establishes that Mr Marsden already suffers from a severe form of psychiatric illness; that illness may best be characterised as major depression; that illness has already been greatly exacerbated by the events that have occurred in this litigation since the proceedings were commenced in 1995; any delay in the resolution of the truth of the allegations would result in the further exacerbation of plaintiff's psychiatric condition. It is possible that the granting of the amendments and the consequential adjournment would result in the plaintiff committing suicide as a result of the exacerbation of his psychiatric condition. This last mentioned component was never elevated beyond a "possibility" as I understand the plaintiff's position.

232 In addition to the exhibits tendered and the oral evidence from the two psychiatrists and oral submissions from counsel, I have had the benefit and have had regard to the twelve pages of written submissions lodged by the defendant and the fifteen pages of written submissions lodged by the plaintiff.

233 Dr White was trenchantly criticised in submissions and embarrassed in the course of his evidence by reason of his report containing proforma material from his computer that had absolutely nothing to do with the case. Furthermore, Dr White was rightly attacked for his statement in his report of 25 November 1998 relating to the plaintiff's vocational, non-vocational, interpersonal and sexual functioning not suggesting psychiatric disorder on the one hand, whereas he had history in relation to each of those four components that was to the contrary.

234 In the end, given the high level to which the psychiatric condition was elevated for the purposes of the determination of the amendment application, after considering the evidence and the impression made upon me by the testimony of both psychiatrists and what I read in their reports and the submissions made by counsel both orally and in writing, I am not persuaded either that the plaintiff has a psychiatric illness or that he has a psychiatric or emotional condition such as to preclude the granting of leave to amend if it is otherwise available to the defendant. I find, notwithstanding the litany of faults in his report, Dr White to have been the more objective examiner of the plaintiff. I conclude on the probabilities that Mr Marsden suffers this existential despair, is of course subject to great distress, but is not so ill as to require hospitalisation and importantly, on Dr Dent's own testimony, with Dr Dent's assistance is able to cope.

235 There remains the plaintiff's Motion to set aside the subpoena. Leaving that to one side for the moment, I can say that the defendant has succeeded in persuading me to exercise my discretion to grant leave to amend. As I have said I am not satisfied on the evidence that there has been a want of good faith in the defendant, that there has been culpable delay, that there has been no or no proper consideration of the amendments themselves, that there has been an intention to overreach. I am satisfied that the plaintiff will be able to cope, in the psychiatric context and has the legal representational resources and an existing reservoir of knowledge to minimise the impact of the grant of leave. The amendment will not be to the full extent sought. Appropriate terms and trial management processes will be available to accommodate the parties needs and the interests of justice.

236 I turn to the plaintiff's Motion to set aside the defendant's subpoena dated 18 January 1999 to the New South Wales Police Service. The text of the Schedule to the subpoena is appended hereto.

Submissions for the Plaintiff

237 The application is bought pursuant to SCR Pt 37 r 8 which provides: "The court may, of its own motion or on the motion of any person having a sufficient interest, set aside the subpoena wholly or in part".

238 The test of "a sufficient interest" depends upon "an examination of the connection, if any, between the documents sought to be required to be produced by the subpoenas in question on the one hand, and the [moving party] on the other": Compsyd Pty Ltd v Streamline Travel Service Pty Ltd (1987) 10 NSWLR 648, at 649G per McClelland J.

239 It is submitted that the plaintiff has a "sufficient interest" for at least five reasons:

(a) he is a party to the proceedings; Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98, at 102;

(b) the documents contain information which is confidential to the plaintiff: the material sought to be obtained from the Police is material which is obtained by them in the exercise of their statutory powers (see Police Service Act, 1990 (NSW)). It must therefore be treated as confidential regardless of whether or not the information is itself of a confidential nature: Johns v ASC [1993] HCA 56; (1993) 178 CLR 408, at 424 per Brennan J (see also pp.435, 458 and 467). In any event, regs 55 and 56 of the Police Service Regulation 1990 show that the information is confidential (see Supt. Woodhouse under cross-examination at T967.10-13);

(c) disclosure of the material the subject of the subpoena would affect the plaintiff's reputation: it is well established that if a particular decision would affect the reputation of an individual he has a right to be heard before the making of that decision: Johns v ASC [1993] HCA 56; (1992-3) 178 CLR 408 at 437, 470-471; see also Ainsworth v CJC [1992] HCA 10; (1992) 175 CLR 564, at 592. Disclosure of the documents would have an obvious impact on the reputation of the plaintiff and this would on its own be sufficient to ground standing;

(d) production under the subpoena would affect the economic interests of the plaintiff: Batemans Bay Land Council v Aboriginal Fund [1998] HCA 49; (1998) 72 ALJR 1270 shows that indirect economic effect is sufficient to amount to a sufficient interest under the general law. Here the impact upon the plaintiff's economic interests (viz damages in these two actions) by the disclosure of the material is a direct economic effect;

(e) principles of natural justice require the Police to notify a person under investigation of the right to be heard before a decision to disclose Police investigation documents is taken where that disclosure would be prejudicial to his interests: Johns v ASC at 431; Marcel v Commissioner of Police of the Metropolis [1992] Ch 225; Morris v Director of the Serious Fraud Office [1993] Ch 372; see also Johns at 437, 458 and 472.

240 In any event, it is clear that the court may set aside a subpoena of its own motion. If this happens, the court will obviously entertain submissions from any party who is prepared to provide such submissions: see Compsyd, at 649G.

241 The plaintiff submits that the subpoena should be set aside for the following reasons: (a) it is a fishing subpoena; (b) the documents sought have not been sought for a legitimate forensic purpose; (c) the documents sought are of no conceivable relevance to the proceedings; (d) the subpoena amounts to discovery against a third party; (e) the subpoena is oppressive; (f) the subpoena is unintelligible in its form.

242 Each of these defects renders the subpoena an abuse of process: see Powell J in Botany Bay at 100-101.

Fishing

243 In Commissioner for Railways v Small (1938) 38 SR(NSW) 564 at 575 Jordan CJ quoted Lord Esher MR in Hennessy v Wright [No. 2] (1890) 24 QBD 445 at 448 who referred to paragraphs drafted "in order that [a party] may find out something of which he knows nothing now, which might enable him to make a case of which he has no knowledge at present". The relevant paragraphs of the subpoena were drafted in order to find out whether the Police had any further allegations of under age sex against the plaintiff and to use them to mount an amendment application. They were also drafted to fish for any "dirt" which the Police had on Mr Marsden, it is submitted.

244 In Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250, at 254, Owen J (with whom Street CJ and Herron J agreed) noted: "It is true, as counsel for the appellant has argued, that a defendant in a libel action who has pleaded justification is not to be allowed to go on a mere 'fishing expedition' into the plaintiff's records in the hope of finding there something which may supply him with the evidence necessary to support this plea. But whether a particular expedition is a mere 'fishing expedition' depends upon the meaning of that phrase. A 'fishing expedition' in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not". His Honour added: "A defendant who has pleaded justification in libel is certainly not to be permitted to range at large through the plaintiff's records merely because he hopes to find there matters which will enable him to justify the libel." These propositions, it is submitted, apply a fortiori to the position of the Police who are not a party to these proceedings.

245 The terms of the paragraphs in the subpoena show that the defendant was not simply trying to add to the evidence in the case as pleaded but rather to find new complainants and to gather dirt on the plaintiff.

246 This is clear from the face of the subpoena but, if it is relevant, various items of circumstantial evidence point to "fishing" as the motivation of the defendant for the subpoena. This is a case on truth: the defendant and its solicitors must have been occupied primarily on this task since the publication of both matters complained of; and that this was their focus throughout the latter half of 1998 and the beginning of 1999. The "agreement" which was entered into with the Police in January 1999 shows that the defendant was prepared to sacrifice everything in the subpoena provided the 12 new names were provided. Immediately the names were provided the defendant sought to amend its pleading to add new particulars of justification. In Ms Barnett's file note of 21 January 1999 it is noted (in italics) that the defendant would "discover 12 new complainants which we have not previously been aware of". In the circumstances, Mr Angus' denial that the subpoena was a fishing expedition is not credible, it is said.

No Legitimate Forensic Purpose

247 It is submitted that the defendant has been unable to demonstrate any legitimate forensic purposes for the subpoena. If the subpoena is a fishing expedition there will be no legitimate forensic purpose. Under cross-examination Mr Angus suggested that there were two legitimate forensic purposes for the subpoena: to corroborate allegations of truth which are already in the pleadings; and to cross-examine the plaintiff.

248 As to corroboration, any material which would truly corroborate a particular complaint which was already in the particulars would have been caught by a paragraph drafted so as to be confined to that particular. Alternatively, if some specific form of corroboration were sought (eg. sex with an under-age boy in a cubicle at Costellos) this would have been caught by a subpoena drafted so as to pick up that particular form of corroboration. The same comments would apply to material relating to cross-examination on the issues directly raised by the justification case in the pleadings.

249 The defendant's real purpose was to try to "fish" for material which would lead to new particulars of truth or alternatively throw up by its broad terms some "dirt" which could be used to cross-examine the plaintiff on his credit generally. The defendant should not be permitted to fish for such "dirt" any more than it should be able to "fish" for new particulars.

Lack of Relevance

250 Because it is in such wide terms, the subpoena will pick up not only material relating to the allegations in the pleadings but also a huge amount of totally irrelevant "dirt" which the Police would have on Mr Marsden. In this respect the following paragraphs are cited:

(a) allegations that Marsden had engaged in criminal and other activities which were in conflict with his role as a member of the NSW Police Board (para A3);

(b) allegations that Marsden had engaged in homosexual intercourse with Michael Boda (para A14);

(c) allegations made about Marsden's sexual conduct by Ronald Dunbier (para A19);

(d) allegations made about Marsden by Daryl Tasker (para A22).

251 Each of these categories travels well beyond allegations of under age sex, let alone under age sex with D1, D2, D3, D5 or D6. Indeed, similar submissions may be made about all of the paragraphs in the subpoena. For example, of what relevance are the paragraphs concerning homosexual intercourse between Marsden and persons (whether or not under-age) who are not named in the particulars? See paras A11-A17. Further, of what relevance are allegations (generally) made about Marsden by Daryl Tasker (para A22)? It could not possibly be said, the plaintiff submits, that the material caught by these extremely wide paragraphs could in any way be relevant to the proceedings as they were constituted on 18 January 1999.

Discovery Against a Third Party

252 In Small at 573 Jordan CJ said: "A subpoena duces tecum ought not be issued to [a stranger] requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery."

253 It is clear that all the paragraphs of the subpoena relate to all such documents as relate to a particular subject matter. Further, it is submitted that many of the paragraphs in the subpoena require judgments to be formed as to what is relevant to certain issues.

254 For example, paragraph A3 requires material relating to allegations that the plaintiff had engaged in criminal and other activities which were in conflict with his role as a member of the NSW Police Board. This would obviously require a judgment to be made which was quite impossible for the Police to make. (See also paragraphs A1, A2, A4, A5-A23, D and E.)

Subpoena Oppressive

255 In the judgment of 2 March 1999 (DLJT: 18) at paragraph 32 I noted that the subpoena was "extraordinarily wide". The subpoena would require the Police to search every Police station in New South Wales to determine whether any of the very broad categories of documents listed in the 27 paragraphs are within the possession, custody or control of any police officer. The Police objected to this subpoena on the ground that it was oppressive. The defendant did not dispute this. This is one of the reasons why the subpoena was purportedly narrowed "by agreement" so as to be confined to material known to Detectives Inkster and Woodhouse.

256 The Rules do not permit such a reading down by agreement: SCR Pt 37 r 11. The reading down would not prevent the subpoena from being oppressive. The only reason the Police were prepared to produce documents was because they were given a broad discretion under the "agreement" not to produce anything over which they wanted to assert a claim for public interest immunity. Because the "claim" would cover any document in their possession, this effectively avoided the oppressiveness from their point of view. This too was an impermissible exercise, it is submitted.

Defects of Form

257 There are various references in the paragraphs of the subpoena which show that the paragraphs are unclear, ambiguous, uncertain and nonsensical.

258 In paragraph A1 there is reference to "allegations of paedophilia or pederasty against Marsden"; in the judgment of 30 November 1995 (at 6-7), I held that a contextual imputation involving "pederasty" should be struck out as uncertain; for the same reasons a paragraph of a subpoena referring to paedophilia or pederasty is similarly unclear and embarrassing (and therefore oppressive). Paragraph A2 refers to allegations that the plaintiff "engaged male prostitutes" who were under the age of 18; this is clearly ambiguous; it is not clear what the nature of the engagement is; (this is a proposition I find difficult to accept). Paragraph A3 refers to material relating to allegations that the plaintiff "had engaged in criminal and other activities which were in conflict with his role as a member of the NSW Police Board". The evidence shows that the Police were unable to deal with this particular paragraph, otherwise it is dealt with above.

259 Paragraph C did not refer to documents or records of any kind; the paragraph refers to "investigations [etc] into allegations that Marsden had committed criminal offences [etc]". This I find to be clearly a typographical error.

260 Paragraph A4 refers to records relating to any association Marsden had with Colin John Fisk; this is clearly "absurd" and unclear. (See also paragraphs A18, A19, A20, A21, A22, A23, D and E.)

261 It is contended that in the light of the matters set out above, I might infer that the defendant is using the amendment application as part of a "general tactic" to try to overreach the plaintiff. As I have already held with respect to matters other than the subpoena, the defendant does not have that intention. The submissions above are relied upon by the plaintiff in support of the fourteenth factor - abuse of process.

262 The fifteenth factor is that the proposed amendment is the fruit of that abuse of process.

263 The plaintiff submits that a further independent discretionary reason for refusing the proposed amendments is that they are the fruit of three "gross" abuses of process to which the defendant was a party, being (a) the procurement by the defendant of the issue on 18 January 1999 of a subpoena which was a gross abuse of process; (b) the agreement between the Police and the defendant entered into in late January 1999 whereby the Police and the defendant "agreed" that the Police would transfer (at their discretion) any "dirt" which they had on Mr Marsden under the cover of the subpoena dated 18 January; (c) transferring the documents in accordance with the agreement by using the procedures of the Supreme Court.

264 It is submitted that the court should not "reward" these abuses of process by allowing the defendant to amend using the products of those abuses. The proposed amendment is founded solely on the documents produced by the Police. The defendant does not assert any other source of information for the material on which the amendment is based.

265 The Police are bound, it is said, by obligations of confidence and impartiality (the sixteenth factor). The Police duties of confidentiality in relation to investigative material derive from two sources: the Police Service Regulations 1990 (NSW) and the Police Service Act 1990 (NSW).

266 Regulation 55 provides as follows (under the heading "Confidential Information"):

"A police officer must treat all information which comes to the officer's knowledge in his or her official capacity as strictly confidential, and on no account without proper authority divulge to anyone."

267 Regulation 56 (headed "Secrecy in Official Matters") provides:

"Without affecting the generality of clause 55, a police officer must observe the strictest secrecy in regard to police service business, and is forbidden to communicate without proper authority in any way whatever to any person outside the police service any information in regard to police or other official public business connected with his or her duties, or which may come to his or her knowledge in the performance of them."

268 The Police Service Act requires that any information obtained in the exercise of the police's powers of investigation must be treated as confidential whether or not the information obtained is otherwise of a confidential nature. That was made clear by Brennan J in Johns at 424:

"A statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which the information when obtained can be used or disclosed. The statute imposes on the person who obtains information in exercise of the power a duty not to disclose the information obtained except for that purpose. If it were otherwise, the definition of the particular purpose would impose no limit on the use or disclosure of the information. The person obtaining information in exercise of such a statutory power must therefore treat the information obtained as confidential whether or not the information is otherwise of a confidential nature". (See also Dawson J at 435, Gaudron J at 458 and McHugh J at 467.)

269 It is submitted that before such confidential investigative material is disclosed by the Police, the Police have an obligation to disclose to the person whose interests may be prejudiced by the disclosure that a decision to disclose may be made. This is in order to allow the person whose interest may be prejudiced a right to be heard before disclosure occurs: see Johns at 431 per Brennan J citing Marcel and Morris. As Dillon LJ observed in Marcel at 259B: "Even where a subpoena has been served, the police should not disclose seized documents to the advisers of a party to civil proceedings in advance of the attendance at court required by the subpoena, unless at the least the police have first given to the true owner of the documents notice of the service of the subpoena and of the wish of the police to produce the documents in advance of the attendance at court required by the subpoena, and have given the true owner a reasonable opportunity to state his objections, if any, to that course." (See also the statement of Nolan J at 261D).

270 It follows, it is said, that the Police were under the strictest obligations of confidentiality in relation to any investigative material in their possession and were only permitted to disclose the material if it was caught by a valid subpoena and Mr Marsden had been given a proper opportunity to object to the subpoena or production of documents under it. It was certainly not open to the Police to use an "extraordinarily wide" subpoena as the basis for entering into an "agreement" under which confidential material could be transferred from the hands of the Police to the defendant by the procedures of the court for production of subpoenaed documents.

271 With these asserted obligations of confidentiality in mind, attention is given to what is said to be the evidence of the "agreement" between the Police and the defendant. (Exhibit 11, especially tabs 29, 32, 35, 36, 31, 32, 37, the affidavits of Mr Angus, Mr Woodhouse and the cross-examination of those witnesses.) More particular references to the evidence are given in the chronology which follows:

272 The basic chronology of these matters is as follows:

1998 Quail aware through Woodhouse that the Police were investigating further complainants

18/1/99 Defendant's Police subpoena

20/1/99 Meeting between Singleton and Woodhouse: Woodhouse affidavit 14/4/99, "A"

20/1/99 Singleton calls MSJ to propose "secret" meeting: Exhibit 11, tab 29

29/1/99 "Secret" meeting at MSJ: Exhibit 11, tabs 31 and 32

25/1/99 Exchange of letters: offer and acceptance: Exhibit 11, tabs 35 and 36

27/1/99 Meeting of Crown Solicitor and Woodhouse: Exhibit 11, tabs 37

29/1/99 Plaintiff interviewed by Woodhouse

1/2/99 First production by the Police. Plaintiff seeks first access which registrar denies: Exhibit 11, tab 41: Gillingham affidavit 17/3/99, para 9

2/2/99 Singleton tells Barnett that production of the documents will cost thousands of dollars: Exhibit 11, tab 42

5/2/99 Quail receives "list of 12" names: Exhibit 11, tab 48; Angus affidavit 26/2/99, para 3

11/2/99 Inspection granted of the documents which included the statements in IRA-1 and IRA-2: Angus affidavit 18/2/99 (1995), paras 19 and 20; Angus affidavit 5/3/99, paras 3 and 4

12/2/99 Mr Price seeks contact details of new "names": Exhibit 11, tab 50

15/2/99 Mr Price seeks contact details D17 to D25: Exhibit 11, tab 52

18/2/99 Defendant delivers first "Consolidated Particulars of Truth" in relation to D17 to D23, Brinkworth and Pollard: Angus affidavit 18/2/99, Exhibit IRA-1

26/2/99 Defendant delivers amended "Consolidated Particulars of Truth" re D24 and D25; Angus affidavit 5/3/99, para 10; Exhibit IRA-2.

273 The relevant terms of the agreement are said to be as follows:

(a) that the Commissioner of Police produce, without objection to access, all documents caught by the subpoena which were known to Detective Superintendent Michael Woodhouse or Detective Acting Superintendent Bob Inkster and which were not the subject of an assertion by the Police of public interest immunity (see Crown Solicitor's letter dated 25 January 1998 (it should be 1999) and MSJ letter dated 25 January 1999: Exhibit 11, tabs 35 and 36);

(b) that these documents include "12 new complainants" (Mr Angus' handwritten note of the meeting with Mr Singleton of 21 January 1999 and Ms Barnett's typed file note of that same meeting: Exhibit 11, tabs 31 and 32);

(c) that the defendant had a "right to withdraw if there were less names than proposed (10)": see Crown Solicitor's file note of meeting with Mr Woodhouse on 27 January 1999: Exhibit 11, tab 37;

(d) that the documents be produced "without fanfare" in the Registry (Ms Barnett's file note of 21 January 1999: Exhibit 11, tab 32);

(e) that the agreement not be disclosed to Phillips Fox: see Ms Barnett's file note of the telephone call from Mr Singleton of 20 January 1999 and Ms Barnett's file note of 21 January 1999: Exhibit 11, tabs 29 and 32;

(f) that the defendant "waive further compliance with the subpoena": see the letters of 25 January 1999 being Exhibit 11, tabs 35 and 36.

274 Several aspects of this "agreement" are said to be notable:

(a) although the subpoena is an abuse of process there was no attempt by the Police to have it set aside although they knew it was an abuse of process and made their views clear to the defendant;

(b) the material caught by the subpoena was clearly the subject of a claim for public interest immunity based on current investigations and material relating to informers;

(c) both in the "agreement" and in the way it was executed it was left to the Police to determine whether documents were the subject of public interest immunity rather than the court; claims for public interest immunity are the responsibility of the judicial branch of government, not the executive branch: see Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, at 58-60. It is not open to the Police as part of the executive government to aggregate to themselves the judicial function of determining what documents are to be subject to public interest immunity. Because, at least prima facie, all of the documents caught by the subpoena in the agreement would be the subject of public interest immunity, this effectively gave the Police a complete discretion to produce whatever material they wanted.

(d) no subpoena could validly have been issued in terms of the agreement;

(e) the effect of the agreement was to enable the Police to produce any "dirt" which they had on Mr Marsden which was known to Superintendent Woodhouse or Superintendent Inkster, the Police having a complete discretion as to what documents were to be produced.

275 In addition, the evidence, it is said, demonstrates the following:

276 First, that the defendant entered the agreement for the improper purpose of obtaining 12 new complainants on which to base an amendment.

277 The issue of the truth of the imputations has always been the primary issue in this case and the defendant has known that ever since the first broadcast. There is no issue, it is said, between the parties that the defendant has spent the last four years trying to find evidence of the truth of the imputations. In the period at the end of 1998 and the beginning of 1999 the defendant was working "furiously" to find fresh allegations which were not in the particulars in order to incorporate them in this case (see D13-D16). So concerned was the defendant to obtain details of these fresh allegations investigated by the Police that Mr Angus and Mr Quail were in contact with Mr Woodhouse to try to bring this about. The subpoena in its terms is a "fishing" subpoena designed to catch new complainants in the possession of the Police. When the Police pointed out the problems with this subpoena the defendant was prepared to ditch the whole of the subpoena provided that it got "12 new complainants". The evidence demonstrates that the primary interest of the defendant and the solicitors acting for it was the presence of 12 new complainants in the subpoenaed material (see the italicised portion of Ms Barnett's file note of 21 January 1999 (Exhibit 11, tab 32); see also Exhibit 11, tab 50 and 52). As soon as the "12 new complainants" were received by the defendant there was immediately an application to amend. The evidence also establishes that if the 12 names were not provided the defendant was prepared to issue a fresh subpoena; this indicates that if the 12 new names were provided, the defendant was satisfied, which indicates that its purpose in entering the agreement was solely to obtain those 12 new names. In the circumstances, it is clear that the defendant's only intention in entering into this agreement was to obtain the names of 12 new complainants for the purposes of making an amendment application. This means that the agreement was entered into wholly for the purpose of engaging in a fishing expedition.

278 Secondly, the evidence shows that the Police entered into the agreement for the sole improper purpose of obtaining an adjournment of the civil proceedings.

279 There was a desire on the part of the Police (especially Superintendent Woodhouse) to obtain an adjournment of the civil proceedings, it is submitted. This was no minor matter to the Police but rather a view on their part that if there was no adjournment this would prejudice the whole of the criminal proceedings because, in their view, the criminal proceedings could not go ahead if the civil proceedings were heard first. So great was the desire of the Police to obtain an adjournment or stay of the civil proceedings that a decision was made to seek advice from the Solicitor-General: Woodhouse affidavit 2 March 1999: annexure G. The advice received was that no adjournment of the civil proceedings could be obtained on the application of the Police: Woodhouse 2 March 1999, paragraph 26(a). The Police were thus thwarted in their desires and intentions and were otherwise unable to find any means of delaying the civil proceedings.

280 At about this time in January 1999 (soon after the advice was received) the subpoena from the defendant dated 18 January 1999 arrived. Immediately the subpoena was received "negotiations" were commenced with the defendant to provide the new names, notwithstanding that the Police knew that the subpoena was invalid and an abuse of process. The "agreement" was entered into notwithstanding that the Police had previously claimed public interest immunity when the plaintiff had sought such material and when the Police knew that the material sought by the defendant was also subject to a claim for public interest immunity. The Police did not obtain the consent of any of the informers for the production of the material to the defendant. There is no other means available to the Police to obtain an adjournment of the civil proceedings. "Any fool" would know that if 12 new complainants were dropped into a civil case there would necessarily be an adjournment of great length.

281 Notwithstanding their duties of confidentiality and impartiality the Police not only failed to notify the plaintiff that these documents were to be produced but entered into a specific agreement with the defendant not to disclose to the plaintiff the existence of the agreement and the production of the documents under that agreement. Accordingly, it is submitted, it is clear that the police's only or primary purpose in entering into this agreement was to effect an adjournment of the proceedings.

282 Thirdly, the agreement was in breach of the police's duties of confidentiality.

283 The Police were only permitted to disclose the documents sought pursuant to a valid subpoena (and this subpoena was not valid). In any event, the documents were produced under the "agreement" not the subpoena and the Police had no power under the Police Service Act to enter into the agreement which was in conflict not only with their obligations of confidence under that Act but also directly in conflict with the Police Regulations. At a bare minimum, the police's obligations of confidentiality required that the plaintiff be informed of the possibility of an agreement to effect disclosure, the existence of the subpoena and its terms so that the plaintiff would have the opportunity of either setting aside the subpoena or alternatively preventing access from being granted to the defendant.

284 In this context it is argued that it is notable that Mr Angus said that he only wanted the documents the subject of the subpoena for corroboration and for cross-examination of the plaintiff; if that attitude was made clear to a judge dealing with access, access (if granted) would only have been on the basis of an undertaking by the defendant not to use the material for the purposes of an amendment application.

285 The specific "agreement" not to disclose the agreement and the "clandestine" arrangements between the Police and the defendant were themselves in breach of the police's duties of confidence.

286 Fourthly, it is said, the agreement was in breach of the police duty of impartiality for the following reasons. The Police consistently refused to produce documents sought by the plaintiff on the ground that there was no legitimate forensic purpose and that the documents were the subject of public interest immunity. Notwithstanding that a much wider class of documents was sought by the defendant the Police were willing to produce these documents because it suited their purposes. The requirements of impartiality also required that there be notification to the plaintiff of the foreshadowed production, the possibility of an agreement and of the nature of the documents sought to be produced so that the plaintiff could avail himself of any remedy available to him.

287 Reliance is also placed on the following matters:

(a) Exhibit 11, tab 50 wherein it is noted that Mr Singleton pointed out to Mr Price that of the vast quantity of documents produced "there was only about another two folders or so of `really interesting' material";

(b) Mr Singleton pointed out to Ms Barnett that "there was clear material in the John Martin subpoena of Marsden attempting to pervert the course of justice": Exhibit 11, tab 41;

(c) it is clear that the names which were disclosed to Mr Quail in early February 1999 could only have come from the Police.

288 It is submitted, the plaintiff should have been given the right to be heard before the Police entered the agreement and produced the documents. The only "honourable" thing for the Police to do was to notify the plaintiff of what was happening. However, if the Police had so notified the plaintiff it would have frustrated the very purpose which they were attempting to effect, namely, the adjournment of the proceedings. If the plaintiff had found out about what the Police and the defendant were attempting to do, the plaintiff could have taken steps to prevent the defendant from getting the documents.

289 The distributive reading down of the subpoena coupled with the right of the Police to keep any documents which they claimed to be subject to public interest immunity plus the purported dispensation by the defendant with further compliance with the subpoena gave the Police a complete discretion as to what to produce - this was a wholly impermissible and illegitimate exercise, so the plaintiff contends.

290 The only power to excuse the recipient of a subpoena from compliance with the subpoena is contained in SCR Pt 37 r 11:

"Where the person named or, where the person named is a corporation, the proper officer of the corporation has not -

(a) been called to give evidence; or

(b) been called upon to produce documents,

before the court or before any judge, officer, examiner or other person having authority to take evidence, in compliance with a subpoena, the party who requested the issue of the subpoena may by written or oral notice to the person named, excuse the person named from compliance with the subpoena."

291 It is submitted that the only power which the issuing party has is to tell a subpoenaed party before he is called upon to produce any documents that he is completely excused from compliance with the subpoena. This provision could not be read as a power granted to the issuing party to read down the subpoena in any way. Such an arrangement could be in clear breach of the Crimes Act: see s 373.

292 In the present case, the impugned agreement was an impermissible reading down in two respects:

(a) the whole subpoena was read down distributively so as to only apply to documents known to Detectives Inkster and Woodhouse;

(b) that reading down was further read down distributively so that the Police need only produce such documents as they desired to produce (given that they were to determine any issue of public interest immunity).

293 The essence of the plaintiff's complaint is that the court should not condone the above abuses of process by permitting an amendment based upon material which is the result of a conspiracy between the Police and the defendant illegitimately to transfer confidential Police investigative material to the defendant using the subpoena procedures of the court when both the Police and the defendant were wholly motivated by illegitimate and improper purposes, namely, to effect an adjournment of the proceedings and to fish for further particulars of justification. "This whole thing was a gross abuse from start to finish". Further, all of the material obtained has been obtained improperly and illegally and is prima facie not to be admitted in the proceedings "unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained": s 138 Evidence Act.

294 One final matter, it is said, should also be noted. The defendant was under an obligation to make a full and frank disclosure of all matters relevant to its amendment application. It is notable that two key facts material to the abuse of process dealt with above namely the Woodhouse meeting of 20 February 1999 and the Angus/Singleton meeting of 21 February 1999 were not disclosed to the court in either the affidavits of Superintendent Woodhouse or Mr Angus. In the circumstances, this is also a matter material to the court's discretion to grant or disallow the amendments sought. The explanations given on behalf of the defendant for the non-disclosure should not be accepted: see T824, T825, T830 and T832. See also the defendant's chronology part of Exhibit 11 which omits references to these events.

Submissions For Defendant

295 The order to the NSW Police Service to produce documents was obeyed by production of documents to the Court on 1, 5, 11 February and 9 March. The purpose of the order which required production of documents to the Court has been fulfilled. The order no longer is of operative effect, the recipient having complied with it. It is no longer enforceable against the recipient.

296 SCR Pt 37 r 8 enables the Court to set aside a subpoena which continues to be effective in that it requires production of documents. The power to set aside is in respect of an order which presently affects the rights or interests of a person (whether the recipient or another person). Thus an order to set aside, if made, will have the result that the subpoena will thereafter no longer operate and be enforceable against the recipient. An order to set aside a subpoena could have no retrospective operation.

297 In the circumstances of this case the Court has no jurisdiction under the Rule because the requirements of the subpoena are spent or discharged. There is nothing of substance to be set aside or stayed.

Discretion

298 In the alternative to the above, the power to set aside is discretionary and, having regard to the circumstances of this case, the Court should decline to order the relief sought.

299 The subpoena, like any order of the Court, cannot be treated as a nullity ab initio. Unless and until it is set aside it stands, and must be obeyed. It was obeyed by production on 1, 5, 11 February and 9 March. The order is spent and no longer has continuing operative effect. It is no longer enforceable against the recipient. Its purpose has been fulfilled.

"So long as the earlier decision stands, and no stay is operative, it is a lawful decision and the action taken in reliance upon it is lawful. It is true that from the moment it is set aside the order can no longer provide the lawful justification for further action, but whether what has been done can be undone will depend upon the availability of appropriate remedies, to bring about the appropriate relief." Wilde v Australian Trade Equipment Co Pty Limited [1981] HCA 13; (1981) 145 CLR 590 at p 603.

300 Furthermore, the plaintiff chose to move to preserve its interest in the documents produced on grounds other than that the subpoena was an abuse of process. Having had access to the documents before the defendant did, the plaintiff chose to protect any interest he had in them by asserting claims for client professional privilege and public interest immunity. The result is that in respect of those documents in which the plaintiff has an interest which required protection he has obtained orders of the Court which afford the necessary protection. Production of the documents by the recipient took place over a number of days. The recipient had performed its obligations by 9 March. The plaintiff asserted his claim for privilege over certain of the documents produced. As has been acknowledged in Court on behalf of the plaintiff, documents over which no claim for privilege was made included the statements of those witnesses who are now the subject of the further amendment application (before Hulme J; 24 February, p 3). Access was granted to the defendant in respect of that material without opposition from the plaintiff. The plaintiff has had possession of a copy of all of the material produced since the time of its production to the Court. He has used it extensively for the purpose of the criminal investigation and in the present proceedings. (eg: Lee, Affidavit 20 April, Gillingham, Affidavits 17 March, 12 April, Potter: Affidavit 2 March).

301 The defendant has had access to such of the documents produced in respect of which no claim has been made by the plaintiff since 11 February 1999.

302 An earlier motion to set aside was filed on 24 February. (Hulme J, 24 February, p 3). The ground relied upon was that the subpoena was "too wide and fishing in its nature" (before Hulme J, 24 February 1999, p 4). It was adjourned and brought before me on 2 March. After discussion the motion was dismissed (T124).

303 The issue of abuse as alleged was not raised until 12 March.

304 In any event, no order should be made. In the circumstances the plaintiff has waived any entitlement he had to move to set aside the subpoena. He himself has proceeded in reliance upon the validity of the subpoena by making use of the documents produced in the way referred to, and to move on the basis that he did to protect his interest in some of those documents. He has been aware that the defendant has acted in reliance upon the remainder of the documents produced in respect of which he has made no claim. He chose to move to deny use of documents on grounds other than abuse of process, having had access to them before the defendant. It is now too late to move to deny access on a different ground in a different application.

305 A further ground for rejecting the application is that the recipient, the NSW Police Service, elected to waive any entitlement it had to challenge the validity of the subpoena on any ground.

306 The recipient had the standing to move to set aside the subpoena in whole or in part had it seen fit to object to any of its requirements. However, it came to an arrangement with the defendant, the party which caused the subpoena to be issued. The effect of the arrangement was that the defendant accepted the recipient's claim of public interest immunity in respect of some documents under the subpoena, thereby avoiding the need to litigate that claim, and the recipient produced the remainder of the documents called for without objection. The recipient produced the documents in respect of which it made no claim for public interest immunity consistent with the arrangement. In the circumstances the recipient elected to abandon any entitlement it had to challenge the subpoena and compliance with it was accepted on that basis.

307 Further, the delay in making this application is a ground for rejecting it in the exercise of the Court's discretion. The delay is unexplained and is unreasonable in the circumstances. Miss Gillingham became aware of the first page of the subpoena when she attended to inspect documents produced under it on 1 February 1999. (Gillingham Affidavit 17 March paras 10, 11; T1081). She did not get around to asking for a full copy from the Crown Solicitor or anyone else (T1082). No motion was filed until 24 February; it was dismissed on 2 March (see above).

308 It was open to the plaintiff to file and proceed with a motion to set aside at least from 1 February. This delay in doing so in all the circumstances justifies rejection of the relief sought. (cf: Wran v ABC (1984) 3 NSWLR 241 at 268).

Standing of Plaintiff (Defendant's Submissions)

309 It is necessary that the applicant establish "a sufficient interest" that the order to produce the documents be set aside. It is not simply a matter of right. The mere fact of being a party does not establish a sufficient interest. (Compsyd; Wran v ABC; Marcel). To establish a sufficient interest a person needs to demonstrate that his or her legal rights in connection with the documents will be interfered with by the execution of the subpoena.

310 In this case, the plaintiff does not have an interest which gives him standing to set aside the subpoena in respect of documents which are not the subject of his client professional privilege.

311 The plaintiff, in separate proceedings, moved to preserve his interest in certain of the documents produced, and thereby denied the defendant access to them. His claims have been determined. To the extent that the Plaintiff's interest in the documents required, it has been, and is, protected by orders of the Court. It is submitted that the plaintiff has no interest within the meaning of Rule 8 in the remainder of the documents in respect of which no claim of privilege is asserted. Further, the plaintiff has no standing to challenge the validity of the subpoena upon grounds relevant only to the interest of the recipient, the NSW Police Service (for example, that it is a fishing subpoena, is oppressive, or is unintelligible in form).

Defendant's Chronology and analysis of evidence

312 On 18 January 1999 Mr Angus caused the subpoena to be issued.

313 By 18 January 1999 the defendant had served the plaintiff with particulars of truth in respect of D13, D14, and D15. (See affidavit of R.W. Potter made 12 March 1999 paras 7 and 8).

314 At no time prior to the subpoena being issued was there a discussion between Mr Angus and any representative of the NSW Police in relation to the issuing of a subpoena (T514.10; affidavit of Angus made 13 April 1999 para 2).

315 By 18 January 1999 the defendant was aware that Superintendent Woodhouse was investigating allegations made against the plaintiff by D15 and D16. On 8 December 1998 Woodhouse wrote to the solicitors for the defendant requesting that D15 and D16 not be interviewed by the solicitors for the defendant (affidavit of Angus made 18 February 1999 Annexure "A").

316 Mr Angus' purpose in issuing the subpoena was:

(a) to obtain material upon which to cross-examine the plaintiff (in the light of the plaintiff's assertion for each of the imputations upon which he sued was believed by him to be false) (T519.25-30);

(b) to obtain material relating to the particulars of truth already alleged (T519.25-30).

317 On 20 January 1999 at 12:50pm there was a meeting between Woodhouse, Mr Singleton from the Crown Solicitor's Office, Mr Howard from the NSW Police, Ms Tomlin from the Crown Solicitor's Office, and Superintendent Inkster to discuss the defendant's subpoena. (See affidavit of Mr Woodhouse made 14 April 1999 paras 6-12 and Annexure "A" thereto). Mr Woodhouse advised Singleton of the documents held by him in relation to which he had no objection to production. These documents included the names of about a dozen persons who had made allegations against the plaintiff which had been investigated by the Police (affidavit of Woodhouse made 14 April 1999 para 9).

318 At about 3:25pm on 20 January 1999 Singleton telephoned Ms Rebecca Barnett of Mallesons Stephen Jaques to arrange a meeting for the following day at 3:30pm (see affidavit of Barnett made 13 April 1999 paras 2-5 and Annexures "A" and "B" thereto and Exhibit 11, tabs 29 and 30).

319 Prior to the meeting on 21 January 1999 Angus was unaware that the material to be produced by the Police contained the names of approximately a dozen persons who had not been particularised by the defendant (T855).

320 On 21 January 1999 there was a meeting at Mallesons Stephen Jaques between Barnett, Angus, Singleton and Tomlin. Singleton offered to produce some documents caught by the subpoena in relation to which no public interest was claimed. This material included 12 new complainants (see affidavit of Barnett paras 6-13 Annexure "C" affidavit of Angus 13 April 1999 paras 8-10 Annexure "F" and "G" Exhibit 11, tabs 31 and 32).

321 At the meeting on 21 January 1999 (as recorded in the file note made by Barnett) Mr Singleton on behalf of the NSW Police said that the Police would be prepared to produce records under paras B and C of the subpoena (namely records) in relation to which there was no public interest immunity claim (in relation to the investigations by Superintendents Inkster and Woodhouse). Further, the Police would produce material in relation to paras D and E of the subpoena so far as that material was known to Inkster or Woodhouse.

322 In relation to the "offer" made by the Police Angus said a discussion took place, the effect of which was, that in its form, in the view of Mr Singleton, the subpoena could be challenged. Singleton indicated that a limited call of the subpoena was possible and that if the defendant accepted the limited call, there would be no application to set aside the subpoena.

323 On 22 January 1999 Mallesons Stephen Jaques requested instructions on whether or not to accept the Crown's offer (see affidavit of Barnett para 14 and Annexure "D").

324 On 22 January 1999 at 3:10pm Counsel for the defendant advised that the offer be accepted (T885). At approximately 3:30pm General Counsel of the defendant gives instructions to accept the offer (T889-890). At 3:45pm on 22 January 1999 Barnett telephoned Tomlin and notified her that the defendant would accept the offer (see affidavit of Barnett para 15 Annexure "E").

325 On 25 January 1999 Tomlin telephoned Barnett and requested the return date for the subpoena be stood over to 29 January 1999. The Crown Solicitor's Office advised Mallesons Stephen Jaques of the terms upon which the subpoena would be answered (see affidavit of Barnett paras 16-17 Annexures "F" and "G"). On 25 January 1999 Mallesons Stephen Jaques advised the Crown Solicitor's Office by letter of the defendant's acceptance of the offer and agreed to stand over the return date of the subpoena to 29 January 1999. (See affidavit of Barnett para 18 Annexure "H"). On 27 January 1999, (the first return date of the subpoena) the defendant arranged for the subpoena to be stood over to 1 February 1999. (See affidavit of Gillingham made 17 March 1999 para 8). At 2:00pm on 27 January 1999 there was a meeting between Woodhouse, Halcro, Bell, Howard, Inkster, Rudolph, Tomlin and Singleton to address the subpoenas served by the plaintiff and the defendant. At the meeting it was agreed that the position taken previously on 20 January 1999 had changed substantially and that more documents could be produced in response to the subpoena. (See affidavit of Woodhouse made 2 March 1999 paras 23-27 and affidavit of Woodhouse made 14 April 1999 paras 16-18 Annexure "D".

326 Exhibit 11, tab 38 is Woodhouse's policy log of the meeting at 2:00pm on 27 January 1999. At para 80 it records:

"At 2:00pm on Wednesday 27 January 1999 Detective Superintendent Woodhouse and Detective Senior Constable Halcro attended a conference at the premises of the Crown Solicitor. The meeting was also attended by Howard Bell and James Howard representing Police Solicitors and Detective Superintendent Inkster/DS Rudolph re the original investigation into John Marsden.

The purpose of the meeting was to address the subpoena which had been served upon the police by solicitors acting for both John Marsden and Channel 7 TV.

So far as it concerned the material available to Strike Force Cori, it was agreed that this should be collated into three categories:

1. The material upon which the police did not intend to rely and for which no public interest immunity could be sought.

2. The material relating to D15 and D16 which had been specifically subpoenaed by solicitors acting for John Marsden, but which was also caught by the 'all-encompassing' nature of the subpoena issued by Channel 7's lawyers.

3. The material relating to allegations made against John Marsden by other witnesses which may form the basis of a report to The Director of Public Prosecutions or other consideration of a criminal prosecution.

It was agreed that the police position had changed in respect of this material because of the following factors:-

(a) The police had made an unsuccessful application to the Solicitor General for a stay of proceedings in the civil case to ensure that the public interest as represented by a criminal investigation was considered first.

(b) D15 and D16 had been subpoenaed and would be called to give evidence in the Civil matter, regardless of the police position. It was now in the interest of justice that the whole of the evidence available on this matter should be made available to the court.

(c) John Marsden had agreed to be interviewed by the police on 29 January 1999 when all the allegations upon which the police were considering to proceed would be put to him. After this date public interest immunity may well have expired.

In view of these factors it was agreed:

(i) That documents etc. at para 1. should be served after editing to eliminate matters where public interest immunity is sought. The size and complexity of the preparation was noted.

(ii) That documents at paras 2-3 may be served after 29 January subject to the proviso that public interest immunity may arise from the requirement to perform further investigations in consequence of the interview with John Marsden. All documents should be edited to remove material already attracting public interest immunity.

A further meeting was scheduled for 4:00pm Monday 1 February 1999 to finalise the police position after interviews with John Marsden".

327 On 28 January 1999 Mallesons informed the Crown Solicitor's Office that the subpoena had been stood over to 29 January 1999. (See affidavit of Barnett para 19 Annexure "I").

328 On 29 January 1999 Woodhouse interviewed the plaintiff.

329 On 1 February 1999 the first of the Police documents were produced to the Court. Ms Gillingham attended Exhibits Office, inspected material produced by the Police, claimed legal professional privilege over some of the material and arranged for all of the other material to be photocopied. (See affidavit of Gillingham made on 17 March 1999 paragraph 10 and T1080-1086).

330 On 1 February 1999 at 4:00pm there was a meeting between Woodhouse, Inkster and Crown Solicitor. At the meeting Woodhouse advised that his interview with the plaintiff had been conducted and that no further significant investigations remained. Woodhouse advised he had no objection to both parties being given access to the documents requested on subpoena subject to selection and editing for public interest immunity. (See affidavit of Woodhouse made 14 April 1999 paras 20-22 Annexure "E"). Between 1 February 1999 and 9 February 1999 Woodhouse edited those documents held by the Police which he considered subject to public interest immunity protection and produced the edited material to Singleton on 9 February 1999. (See affidavit of Woodhouse made 14 April 1999 para 23).

331 On 4 February 1999 Barnett and Gillingham attended the return of the subpoena. Barnett had the subpoena stood over to 8 February 1999. Later in the day, I granted access to all parties to documents produced by the Police. (See affidavit of Gillingham made 17 March 1999 paras 13 and 14).

332 On 5 February 1999 Gillingham attended Exhibits Office, inspected additional material produced by the Police, claimed legal professional privilege over some of it and arranged for all material to be photocopied. (See affidavit of Gillingham made 17 March 1999 para 15).

333 On 8 February 1999 Barnett and Gillingham attend the return of the subpoena. Barnett has the subpoena stood over to 11 February 1999. (See affidavit of Gillingham 17 March 1999 para 16).

334 On 11 February 1999 the NSW Police produced three boxes of material in answer to the defendant's subpoena including the Police statements contained in Exhibit IRA1 (Exhibit F) and IRA2 (Exhibit E). Gillingham attended the Exhibits Office, skim read the documents, claimed legal professional privilege over some of the material and arranged for all of the material to be photocopied. (See affidavit of Gillingham 17 March 1999 paras 18-20; affidavit of Angus made 5 March 1999 paras 3 and 4).

335 On 12 February 1999 Tomlin produced a folder of documents to the Court in answer to the subpoena issued by the defendant and the plaintiff. I granted access to both parties to uplift the material. The plaintiff obtained first access until 10:00am on Monday 15 February 1999. Gillingham inspected the material and claimed client legal privilege on behalf of the plaintiff in respect of some of it. (See affidavit of Gillingham 17 March 1999 paras 22-23).

336 On 12 February 1999 the plaintiff obtained copies of all of the material produced by the NSW Police, and then delivered copies to Mr Lee solicitor from Corrs Chambers Westgarth (T1255.25-35, T1264.50-55, T1272.50; see affidavit of Lee made 20 April 1999 para 24).

337 On 18 February 1999 the defendant served consolidated particulars of truth adding particulars in relation to D16 to D23. (See affidavit of R.W. Potter made 12 March 1999 para 12).

338 On 24 February 1999 the plaintiff filed a notice of motion to set aside the defendant's subpoena. The motion was filed in Court before Hulme J. who adjourned the hearing of the motion.

339 On 26 February 1999 the defendant served further particulars of truth adding particulars relating to D24 and D25. (See affidavit of R.W. Potter made 12 March 1999 para 13).

340 On 2 March 1999 the plaintiff's Counsel suggested that the notice of motion to set aside the subpoena be stood over generally. (See affidavit of Gillingham made 17 March 1999 para 28 and p 124).

341 Between 3 March 1999 and 9 March 1999 the Court heard evidence and submissions on the plaintiff's application to deny the defendant access to some of the material produced on the subpoena on the grounds of client legal privilege and public interest immunity and the general discretion contained in National Employers' Mutual General Association Limited v Waind [1978] 1 NSWLR 372.

342 On 9 March 1999 the Crown Solicitor attended the Court to produce two further files of material in answer to the subpoena. I granted the plaintiff first access for 24 hours. (See affidavit of Gillingham made 17 March 1999 para 24).

343 On 9 March 1999 Gillingham inspected the material produced on 9 March 1999 and claimed privilege and confidentiality over all of the material and arranged for all material to be photocopied. (See affidavit of Gillingham made on 17 March 1999 para 25). This claim had not yet been determined.

344 On 12 March 1999 the plaintiff filed a new notice of motion to set aside the subpoena. (See affidavit of Gillingham made 17 March 1999 para 30.

Evidence of Woodhouse (Defendant's Submissions)

345 In his affidavit of 14 April 1999 (paragraph 5) Woodhouse said he did not have a conversation with any person about the form of the defendant's subpoena prior to receiving a copy of it, which he did on or about 18 January 1999. Woodhouse said that paragraph C of the defendant's subpoena related specifically to the investigations being carried by Strike Force Cori. He gave instructions at the meeting on 20 January 1999 to Singleton about this paragraph and paragraphs A15 and A16. The remaining paragraphs of the subpoena related to Superintendent Inkster's inquiry.

346 At the meeting on 20 January 1999 Woodhouse informed Singleton that his investigation was ongoing and he was not prepared to produce any material that may be included in a report to the D.P.P. However, he said to Singleton that he had no objection to the production of a number of documents falling within the defendant's subpoena which related to allegations which he was no longer investigating (para 9) and which he had decided would not be included in a report to the D.P.P.

347 On 25 January 1999 he received a second subpoena from the plaintiff. A copy of the subpoena is Annexure "B" to Woodhouse's affidavit of 14 April 1999. The subpoena issued by the plaintiff related specifically to material concerning D15 and D16. These were the same documents as were requested by the defendant in its subpoena. (Para 14, affidavit of Woodhouse made 14 April 1999).

348 Woodhouse said that when considering the plaintiff's and the defendant's subpoena, it was obvious to him that both parties were seeking substantially the same documents. Specifically, paragraph C of the defendant's subpoena sought substantially the same information as paragraph 29 of the plaintiff's first subpoena. Paragraphs 1(a), 1(b), 3(a) and 3(b) of the plaintiff's second subpoena sought the same documents as paragraph A15 and A16 of the defendant's subpoena. This fact and the other matters referred to in paragraph 80 of his policy log (affidavit of Woodhouse made 14 April 1999 Annexure "D"), caused Woodhouse to reconsider the position held by him on 20 January 1999 (see paragraph 18).

349 Woodhouse also said that after he interviewed the plaintiff on 29 January 1999 he did not have further significant investigations to make and therefore believed that public interest had expired once the allegations were put to the plaintiff (paragraph 19). The further information obtained later from the plaintiff's solicitor (Mr Lee) did not alter Woodhouse's conclusion that his investigation had effectively been completed. (Paragraph 19).

350 Woodhouse specifically denied that he disclosed the documents to the defendant for the purpose of indirectly engineering a stay of the civil proceedings or that he wished to use the civil proceedings as some sort of committal proceedings (see paragraph 27 to the affidavit of Woodhouse made on 14 April 1999).

Oral evidence of Woodhouse (Defendant's Submissions)

351 Woodhouse said that by March 1999 there was no ongoing investigation (T966.50-55) and that with the record of interview with Marsden on 29 January 1999 the public interest immunity claim was no longer available. He said that he regarded a subpoena from a Court as a legitimate order and a legitimate direction to him (T967.5-50).

352 At (T974.55), Woodhouse made it clear that Quail did not get the "list of 12 names" from him. Woodhouse said he was not expecting the subpoena of 18 January 1999 (see T979.25-30). He also said that Quail did not tell him about the subpoena and that Quail never asked him about the names (T979.25-35). Woodhouse denied giving Quail the list of names (T980.35). Woodhouse said that at no stage prior to 18 January 1999 did he tell Quail he could not produce the names without a subpoena (T980.30).

353 At (T983.55), Woodhouse said he accepted a decision of the Solicitor General that there would be no stay of the civil proceedings and accepted that it was a fait accompli that the civil proceedings would go ahead. Woodhouse denied that he knew that by producing the statements this would lead to further particulars being supplied by the defence and a likelihood of there being an adjournment (T984.1-5). Woodhouse also denied that he sought to procure an adjournment by supplying the further statements (T984.5).

354 Woodhouse said he did not turn his mind to whether or not the Police could evaluate the evidence given by the complainants if the civil proceedings went on with the new particulars (T984.20).

355 At the time when Woodhouse agreed to deliver the documents in response to the subpoena he considered that public interest immunity had expired (T970.50). Woodhouse considered that the investigations of Strike Force Cori had been completed with the interview of the plaintiff on 29 January 1999 (T982.20 and T983.5-10).

356 Woodhouse regarded the documents as caught by the subpoena issued by both parties. Operating on his mind at the time when he produced the documents was that both parties to the proceedings were wanting precisely the same documents (T981.20-25). Woodhouse regarded the documents as caught by subpoena and in relation to those produced not covered by a claim for public interest immunity because the investigation being conducted by him had come to end when the allegations had been put to the plaintiff (T983.5-10).

357 Woodhouse said he did not know that if he produced "new statements" this would lead to further particulars of the defence which would be likely to cause an adjournment (T984.1-5). Woodhouse specifically denied that he sought to cause an adjournment to the civil proceedings by producing the statements (T984.5-10). He rejected the suggestion that after failing to obtain an adjournment of the civil proceedings, production of the statements might enable the Police to evaluate the evidence in this case as it proceeded (T984.10-15). He specifically denied that he wanted an adjournment or stay of the civil proceedings (T984.15-20) once the Solicitor General had rejected his request put in the letter of 22 December 1998 (Exhibit 11, tab 22). Woodhouse specifically denied that it was his purpose in producing the documents to cause a situation where the plaintiff would require an adjournment in order to investigate the fresh allegations and deal with them (T992.10).

Oral evidence of Angus (Defendant's Submissions)

358 Mr Angus:

(a) denied he had any discussions with Woodhouse prior to the issue of the subpoena (T514.10) or with any police officer about its form (T552.5);

(b) said that he was unaware of the existence of any of the people named in paragraph 19 of his affidavit made on 18 February 1999 until 5 February 1999 (T514.40, T515.5);

(c) said that he did not know what stage the Police investigation had reached when he issued the subpoena on 18 January 1999 (T515.10);

(d) said that it was not until early January that he gave consideration to the issue of a subpoena to the Police (T518.55).

359 He denied that he issued the subpoena to obtain material which he hoped might emerge in order that he might use it to damage the plaintiff (T515.15). Angus stated that his intention in issuing the subpoena was to obtain material which the defendant might use at the trial by way of corroboration of the material the defendant had and to obtain material to test the plaintiff in cross-examination (T19.25-30). He thought it was strongly probable the Police had information relating to purposes identified in the paragraph above (T515.35). He denied he issued the subpoena to cause great delay (T520.30). He denied he issued the subpoena in order to force an adjournment (T520.30-35).

360 Angus said that the production of statements of D17 to D25 was a surprise (T520.40). He had the opinion that the subpoena would stand up (T526.50). Mr Angus summarised the effect of the discussion held at the meeting with the Crown Solicitor to be that, in the view of Mr Singleton, the subpoena could be challenged and he indicated that a limited call of subpoena was possible and that if the defendant accepted the limited call there would not be an application to set aside the subpoena (T526.1-5). He denied that the subpoena was a fishing expedition (T528.10-15) and denied that the subpoena was an abuse of process (T528.15).

361 At (T528.40-45), he stated that when he agreed to narrow the call on the subpoena he did not know the statements of D17-D25 were going to be produced. He also denied he was looking for material upon which he could base further particulars of justification (T528.45-50). Mr Angus said that he did not tell Singleton he was looking for other witnesses and that he did not say to Singleton what his purpose was in issuing the subpoena. He did not tell Singleton that the defendant was looking for material with which to attack the plaintiff's credit (T531.25). He did not tell Singleton that the defendant was looking for material to make new allegations (T531.30). At (T534), he denied that the subpoena was nothing more than a fishing expedition on his part and his client's part ((20-25)); he also denied that he knew at the time when he issued the subpoena it had the potential to interrupt the proceedings by causing extensive delay (T534.35). At (T535), Mr Angus explained why he left it until 18 January 1999 to issue the subpoena, see paragraph 125 hereof.

362 He denied that the arrangement with the Crown Solicitor was improper; that he did not want the meeting of 21 January 1999 disclosed; and that he omitted reference to the meeting of 21 January 1999 in his affidavit made 13 April 1999 because he did not want the "improper deal" with the Crown Solicitor disclosed. He said that the reason that the meeting of 21 January 1999 was not referred to in his affidavit of 13 April 1999 was because he regarded the meeting as privileged (T830.20-25). Mr Angus denied that there was any deliberate concealment of the meeting of 21 January 1999 at (T835.45-50 and T836.10). He said that the usual situation is not to involve other parties to the proceedings when discussing with the person subpoenaed that person's response to the subpoena (T836.30).

363 Mr Angus expressed the professional opinion that the subpoena would have survived an application to have it set aside as an abuse process. He expressed the opinion that the subpoena was not so wide as to amount to an abuse of process (T844). At (T847.45-50) hr denied he was just looking for "dirt to throw at the Mr Marsden." He said he was looking for matters to cross-examine him about as to his credit.

364 At (T849.20-30) Mr Angus denied that he had any knowledge of any documents which would have involved new complainants and that he had any idea at all that the Police had such documents when he issued the subpoena. He said he did not recall turning his mind to the possibility of new complainants (T849.40). Mr Angus denied that he knew it was likely in the nature of things that Strike Force Cori was investigating new allegations and that is why he issued the subpoena (T854.40).

365 At T854.55 he said he hoped by the subpoena to obtain documents which related to D13 - D16 in order to support the new particulars in relation to D13, D15 and D16 (T855.5).

366 At T855.55 he said that the information concerning the 12 new complainants was totally unexpected and at (T855-856.1) that he "did not have a clue" when he issued the subpoena that he was likely to obtain the names of 12 new complainants.

367 Mr Angus denied that the reason why he delayed in issuing the subpoena was so the proceedings would be delayed (T857.1-10). He Angus denied that he knew that the conduct of the Police giving various statements of new complainants to the defendant in response to the subpoena was a gross breach of confidence on the part of the Police (T863). He denied that he accepted the Crown Solicitor's offer in relation to the response to the subpoena on the condition that the Police produce ten statements (T878.10).

368 Mr Angus said his understanding of the agreement was that the defendant would receive information which was documentation not the subject of current Police investigations and which was not subject to public interest immunity (T880.40.45). He understood the expression "off the record" as it applied to the meeting held on 21 January 1999 to mean "without prejudice" (T925.5-10).

369 In practice as a litigation solicitor for 25 years, Mr Angus said he had never been informed by an opposing party of a proposal to have a discussion with the respondent of a subpoena in relation to compliance with a subpoena (T925.10-15). In his professional experience, there was no professional obligation to inform an opposing party of a proposal to have a discussion with the respondent of a subpoena as to compliance (T925.40-50).

370 At the conclusion of the meeting on 21 January 1999 attended by himself, Barnett, Singleton and Tomlin it was his understanding that the Police would produce documents which felt within paragraphs B and C of the subpoena and also paragraphs D and E subject to any claim for public interest immunity (T928.5-10).

371 At (T928-929.55), he said that the existence of the "list of 12" or the information in it played no part in the formulation of the particulars the subject of the amended application.

Oral evidence of Barnett (Defendant's Submissions)

372 In her evidence at (T994.10-25) she said that her understanding of the meeting on 21 January 1999 was that it would be confidential and not be disclosed to Phillips Fox (T994.20). She was asked whether she thought the situation was a "bit odd" and she said "no".

373 At (T994), she said Singleton was anxious not to appear partial and that it was her understanding that the meeting was protected by legal professional privilege.

374 At (T995.20), it was suggested to she that the whole reason for the defendant being interested in accepting the Crown Solicitor's offer partially to comply with the subpoena was to obtain the "twelve new complainants." She denied that this was the whole reason for the defendant accepting the offer. At (T995.40), she said that the offer was made to comply partially with the subpoena before there was reference to the new complainants and at (T996.10-15), she denied that the object of the subpoena was to try and obtain information for the purpose of drawing new particulars of truth.

375 At (T996), following questions and answers are recorded:

"Q: Did you know the stage at which this case had reached when the subpoena was issued?

A: Yes, I was I had been involved with the case from January.

Q: And the object of the subpoena, was it not, was to try and obtain information for the purpose of drawing new particulars of truth?

A: No.

Q: That's what it was all about, wasn't it?

A: No".

376 Ms Barnett denied that the defendant retained the right to withdraw from the settlement if there were less names provided than ten (T998.10-15).

General submissions For the Defendant

377 The discussion that occurred on 21 January 1999 between Angus and Singleton and others, to determine the extent to which the Police would respond to the subpoena, was consistent with usual practice. In particular the "agreement" between Singleton and Angus that the discussions concerning the Police response to the subpoena not be disclosed to the plaintiff's solicitors, was consistent with usual practice.

378 The usual practice is that parties do not disclose to their opponents the content of discussions with strangers to whom subpoena have been directed for the production of documents.

379 That the discussions between Angus and Singleton were consistent with each aspect of the usual practice, namely limited calls on subpoena and non-disclosure of discussions to other parties to the litigation, is available from the evidence of: Angus (T925.20-45; T924.5 and T925.15); Gillingham (T1090A, T1102.15-20 and T1102.20-25); Potter (T1158 and T1161A (not disclosing discussions with the other side); Potter (T1157-1158) (limited compliance).

380 In relation to limited compliance and non disclosure, account can be taken of my decision of 12 February 1999 (DLJT8); Exhibit Q, letter dated 23 October 1998 from Phillips Fox to Mallesons Stephen Jaques declining to provide information regarding the schedules to subpoena issued by the plaintiff. The refusal to disclose the terms of subpoena to strangers is consistent with usual practice.

381 Those Documents which were produced by the Proper Officer of the NSW Police were within the terms of the subpoena and were not subject to any public interest immunity claim.

382 Each of Angus and Woodhouse denied that there was any ulterior or collateral purpose in issuing and complying with the subpoena. Ms Barnett expressly denied that the defendant's purpose in issuing the subpoena was to obtain material which could be used as further particulars of justification. She was not challenged on this answer.

383 The documents sought by the subpoena (particularly those paragraphs with which the Police agreed to respond by the production of documents, namely, see B, C, D and E) had an apparent relevance to the issues in the proceedings as they existed at 18 January 1999, ie prior to the amendment of the imputations).

384 The documents had an apparent relevance to the following issues: the falsity of the imputations and contextual imputations (as existing at 18 January 1999); the cross-examination of the plaintiff in relation to credit and his denials; the propensity of the plaintiff to engage in the conduct alleged; the question of whether or not the plaintiff visited Costellos and other premises used for juvenile male prostitution; the justification particulars delivered by correspondence dated 6, 7 and 14 January 1999. (These particulars involve D13, D14, D15 and D16).

385 The point is sufficiently made by reference to the above. Written submissions for the defendant expand the relevance issue to a variety of other matters including the defendant's proposed case on qualified privilege. During oral submissions I was loath to allow more than reference to the existence of such other areas. The focus is on the relevance to the matters the subject of the amendment application.

386 As to proof of an abuse of process, it was submitted that a person alleging an abuse of process must show that the predominant purpose of the other party in using the legal process has been other than that for which it was designed.

387 The onus of satisfying the Court that there is an abuse of process lies upon the party alleging it. It is a "heavy one". (Williams v Spautz [1992] HCA 34; (1991-1992) 174 CLR 509 at p 529; "...to a very high level of satisfaction" (per Levine J, DLJT36, para 4). Clear and sufficient evidence is required (Goldsmith v Sperrings (1977) 1 WLR 478 at 498-499).

388 Proceedings are brought for an improper purpose, and thus constitute an abuse of process, where the purpose of bringing them is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers (Williams v Spautz (supra) p 526).

389 In this case, the evidence negates a finding that the subpoena was issued to effect an object not within the scope of the process or was issued for some extraneous or ulterior purpose. To the contrary, the evidence establishes that the subpoena was legitimate in form and was issued for its proper purpose.

390 As to the submissions for the plaintiff that the subpoena was "fishing", junior counsel for the defendant, Mr Wheelhouse, assisted the Court with extensive oral and written submissions to which I hope to do justice in my rehearsing of them as follows:

391 A subpoena can be set aside if its terms are too wide. This may occur where the subpoena does not refer to specific documents: Lee v Argas (1866) LR 2 Eq 59. However if a person to whom a subpoena is directed admits to having in his possession documents covered by the terms of the subpoena he must produce them: Lee v Argas. This is the why the usual practice is to hold all discussions concerning compliance with a subpoena on a "without prejudice basis": see TPC v Arnotts (1989) 88 ALR 90.

392 If the proper officer of the NSW Police Service had objected to the subpoena on the basis that it was oppressive and amounted to fishing it would have been open to the defendant to ask the proper officer on the return date of the subpoena to state whether the Police were in the possession of documents which they understood were caught by the terms of the subpoena. As is apparent from the documents ultimately produced by the Police, the Proper Officer would have had to have admitted that there were documents in the possession of the Police Service which could have been produced in response to the subpoena: see O'Born v Commissioner for Government Transport (1959) 77 WN (NSW) 81 at 83; TPC v Arnotts at 103.

393 In TPC v Arnotts Beaumont J. said at 102-3 :

"It is also material to look at the impact of the subpoena upon [the party on whom the subpoena is served]. . . . it is convenient to address the present application . . by reference to two questions:

(1) Does the material sought have an apparent relevance to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the party issuing the subpoena].

(2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of [the party on whom the subpoena is served]."

394 As to the first of these factors, his Honour said at 103 that the test of adjectival relevance is satisfied if the material has apparent relevance. As the material sought "could possibly throw light on the issues in the main case" then adjectival relevance was established.

395 And, as Cantor J. said in R v Barton [1981] 2 NSWLR 414 at 420: "in considering the type of documents and how they bear upon an issue in the litigation the court will act realistically and not require the production of documents which only would have a bearing upon an issue on an unreal, fanciful or speculative basis."

396 Further, Moffitt P. referred in Waind v Hill [1978] 1 NSWLR 372 at 385 to documents having "apparent relevance" to the issues in the following terms: "the limitation on the exercise of the judge's discretion to allow inspection is that the document contains information of apparent relevance to the issues, Once the judge has that opinion, inspection will normally be allowed, notwithstanding that the document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it, or use it cross examination".

397 The Police Service produced documents relating to paragraphs B, C, D and E of the subpoena.

398 Paragraph B dealt with Inkster's investigations into allegations that the plaintiff had committed criminal offences by engaging in sexual intercourse with young male prostitutes who were under the age of 18. Clearly, that material is relevant, substantively and adjectivally, to the issues pleaded. A request for that material cannot amount to "fishing".

399 Paragraph C dealt with Woodhouse's investigations. Again, given the pleadings, the material sought is clearly relevant and a request to produce it cannot amount to "fishing".

400 Paragraph D dealt with records of investigations carried out in relation to conflicting statements made by D3. D3 has been part of the justification case since the filing of the original defence and material relating to statements made by him concerning the plaintiff is of clear relevance.

401 Paragraph E deals with records of investigations in relation to conflicting statements of Colin John Fisk. Fisk is referred to in the matter complained of, and part of the Defendant's case on qualified privilege is the use the defendant made of the Fisk material.

402 As to the second of these factors, the fact of the matter is that the documents sought were produced. The Police Service did not seek to argue that compliance was in any way seriously and unfairly burdensome or prejudicial. On the contrary, the documents were produced to the Court.

403 Where a witness to whom a subpoena to produce documents is issued seeks to have the subpoena struck out as being oppressive in failing to indicate with sufficient particularity the documents sought the fundamental consideration is whether, in all the circumstances including the identity and situation of the recipient, the class of documents is sufficiently identified: R v Barton at 428; Lucas Industries Ltd v Hewitt (1978) 45 FLR 174; 18 ALR 555. The defendant submits that not only has it satisfied these requirements, but as the Police Service, the party on whom the subpoena was served, did not move to set aside the subpoena on any ground of oppression, including fishing, the subpoena cannot be set aside.

404 The plaintiff's submissions must be seen in the context of the subpoena issued by him on 13 October 1998. The description of the class of documents referred to in paragraphs B and C of the subpoena is in almost identical terms as the subpoena issued by the plaintiff on 13 October 1998 which is Annexure H to the affidavit of Michael Woodhouse made 2 March 1999.

405 Paragraphs 29, 30 and 31 of the plaintiff's subpoena are in the following terms:

"John Marsden

29. All records, files, documents, correspondence, memoranda, statements, statutory declaration, records of interview, filenotes, computer print-outs, computer disks, audio-tapes and video tapes in relation to John Marsden of 225 Denham Court Road, Ingleburn, New South Wales from 1 January 1994 to date.

Inkster Inquiry

30. All records, files, documents, correspondence, memoranda, statements, statutory declaration, records of interview, filenotes, computer print-outs, computer disks, audio-tapes and video tapes obtained in the course of investigations in relation to John Robert Marsden headed by Detective Inspector Inkster from about January 1994 to December 1997.

31. All records, files, documents, correspondence, memoranda, statements, statutory declaration, records of interview, filenotes, computer print-outs, computer disks, audio-tapes and video tapes in relation to "Costellos."

406 By drawing the subpoena in the above terms the plaintiff must have come to the conclusions that the class of documents was properly and adequately described, and the documents sought had an "apparent" relevance to the issues in the proceedings.

407 These conclusions of the plaintiff coincide with those of the defendant when it issued the subpoena.

408 The concept of "fishing" in the context of discovery was explained by Lord Esher MR in Hennessy v Wright (No 2) at 448: "The plaintiff wishes to maintain his questions, and to insist upon answers to them, in order that he may find out something of which he knows nothing now, which might enable him to make a case of which he has no knowledge at present. If that is the effect of the interrogatories, it seems to me that they come within the description of "fishing" interrogatories, and on that ground cannot be allowed."

409 "Fishing" in the context of a subpoena must be a wider concept because a subpoena can properly be issued to obtain material for cross-examination on credit, which material may be beyond the ambit of discovery.

410 Again, in relation to discovery, the concept of "fishing" was explained by Lindgren J in TPC v CC (NSW) Pty Ltd [1995] 58 FLR 426 at 437 F - 439. Lindgren J. said: "It remains to consider the submission that discovery should not be ordered because the Commission seeks to use it as a "fishing expedition." It has often been said to be a ground on which discovery (and interrogatories) will not be ordered, that the purpose is to carry out a "fishing expedition": see, for example, Hennessy v Wright (No 2) (1890) 24 QBD 445n at 448n ... What does the reference to a "fishing expedition" mean? After all, Exhibit hypothesi, the giving of discovery will often, if not always, reveal documents of which the other party was not previously aware (similarly, the administering of interrogatories will often, if not always, reveal information of which the other party was not previously aware). What is meant is that discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from the purpose of compelling the production of documents where there is already some evidence that a case exists: see, for example, Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575 ... what is required is that "sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery." On the facts of particular cases, the application of the distinction between "fishing" and "non-fishing" may well be difficult."

411 At the time when the subpoena was issued the defendant was aware or suspected:

(a) That Detective Inspector Inkster had carried out an investigation into the plaintiff in relation to allegations that the plaintiff engaged in sexual activities with boys under the age of 18. This is apparent from the terms of paragraph 30 of the plaintiff's subpoena which was the subject of a contested hearing before Ireland J.

(b) That the Police were in possession of documents of the kind referred to in paragraph 29 of the plaintiff's subpoena (this is apparent from the terms of paragraph 29 of the plaintiff's subpoena).

(c) That the Police were in possession of documents concerning ongoing investigations in relation to the plaintiff generated by Superintendent Woodhouse because: (i) Woodhouse had requested Mr Quail to assist him in relation allegations made by D14 concerning D13; see p. 945 (15-45) Exhibit 11 Tab 5, Police Log 93/20/2 and Tab 15 Police Log 93/20/4; (ii) Woodhouse wrote directly to the defendant's solicitors on 8 December 1998 concerning D15 and D16; see Exhibit 11 Tab 15 letter dated 8 December 1998 from the NSW Police Service, Child Protection Agency to Mr Ian Angus, Mallesons Stephen Jaques. This letter states D15 and D16 are "potential witnesses in a current criminal investigation. The letter is signed by "Michael Woodhouse Commander Strike Force Cori."

(d) By 18 January 1999 the defendant had interviewed D13 and D15, in relation to himself and D16, and had provided further particulars of justification based on the interviews.

412 Further because of the defendant's knowledge of the allegations made by D13 and D15 it reasonably suspected that Superintendent Woodhouse, was in possession of material relating to:

(i) the principal allegations in the proceedings; and

(ii) that may have been important for the cross-examination of the plaintiff.

413 Moreover, the defences of justification were first pleaded on 26 September 1995 and 14 August 1996. In this sense, the defendant's case already "existed".

414 The fact that the material produced went beyond that which the defendant anticipated is irrelevant as to whether the subpoena amounted to "fishing" or was an "abuse of process."

415 Further, the fact that the terms of the subpoena do not precisely correspond with the particulars of justification does not establish that the subpoena is "fishing." As with discovery a party is not confined in his or her quest for documents to the particulars supplied. In TPC v CC (NSW) Pty Ltd (supra). Lindgren J. specifically rejected a submission similar to that of the plaintiff at 439 F where his Honour said:

"The respondents submit that the Commission should be directed to "supply particulars by putting on its affidavit evidence" before the discovery issue is decided. I do not agree. A well-accepted situation which the court often exercises its discretion by ordering discovery before particulars are supplied is that in which the party which seeks particulars and resists discovery is alone in possession of the relevant documents...

In Esso v FCT [1998] FCA 1655; (1998) 159 ALR 664 at 701 (45-50) and 702 Merkel J. said that the well established rule is that discoverable documents which relate to any matter in question between the parties are not limited to documents which would be evidence to prove or disprove and matter in question in the action (p. 701) and that access is given on discovery for a broader investigative purpose.

416 The defendant also submitted that the difficulty posed by the Plaintiff's application is that it is almost hypothetical. The defendant is in the position where it is expected to demonstrate how it would have responded if the Police or the plaintiff (if he was entitled to) had moved to set aside the subpoena prior to 4 February 1999 before the Police commenced to comply with the obligations imposed on them by the subpoena. The Court cannot reasonably expect the defendant to prove by evidence how it would have met an application to set aside the subpoena if it had been made at the appropriate time in the usual way. This is particularly so in relation to those documents which the defendant was seeking for the purpose of cross examining the plaintiff and corroborating the evidence of its witnesses. If an attack had been made on the subpoena at the appropriate time by the Police or the plaintiff the defendant could have made a properly informed decision on whether to tender evidence to demonstrate forensic purpose and apparent relevance.

417 Is it legitimate for a party to narrow a call on the class of documents caught by the terms of a subpoena? (defendant's submission).

418 As a matter of practical common sense it is open to a stranger to inquire of a party whether that party will regard the stranger's obligations under a subpoena satisfied by production of certain specified documents, and for the party to inform the stranger that it will accept the production offered as satisfaction of the obligations imposed by their subpoena. This cannot be characterised as "redrafting" the subpoena or altering the stranger's obligations under the subpoena.

419 Prior to a subpoena being called in court, it would be appropriate for a party to advise a stranger that it was not intending to call various paragraphs of a subpoena so as not to cause to the stranger unnecessary cost and expense. To suggest, as did the Plaintiff's counsel, that once a subpoena is issued there are only two options open a stranger, namely: produce all documents covered by the subpoena; or set aside the subpoena, is to suggest an extreme position which would make the subpoena process unworkable.

420 It is well recognised that the court cannot investigate every on-contentious compliance with orders for discovery and production of documents under subpoena. An example of the appropriate way to deal with a wide subpoena is found in the decision of Ireland J., on 24 December 1998 in this case, dealing with the Plaintiff's subpoena to the Police.

421 In relation to paragraph 31 of the Plaintiff's subpoena (a copy of which is annexure H to the affidavit of Michael Woodhouse made 2 March 1999), the his Honour said: "Paragraph 31 is in the following terms: All records, files, documents, correspondence, memoranda, statements, statutory declarations, records of interview, file notes, computer printouts, computer disks, audio tapes and video tapes in relation to "Costellos". The call has been restricted so as to be confined to such material as is known to Detective Inkster and the group or body known as the Child Protection Agency. Thus confined, it is common ground that the subpoena is not oppressive, the material in question having already been gathered together."

422 What occurred before Justice Ireland is precisely the same as the arrangement made between the defendant and the Police, namely, the issuing party agreed that the stranger's obligations under the subpoena would be satisfied by production of a class of documents identified by the stranger. In that case the class of documents was defined by Inkster's knowledge; and Costellos.

423 This is precisely the same method of defining the class of documents to be produced was agreed between the defendant and the Police in relation to the Defendant's subpoena of 18 January 1999.

424 Critical to the question of whether or not the subpoena was oppressive was whether or not the organisation subpoenaed had the capacity to gather together the material caught by the subpoena. Large organisations such as the Police force or banks or the Commonwealth of Australia have significant resources and thus what may be oppressive for an individual may not be oppressive for those types of institutions. That is why Ireland J. said "the subpoena is not oppressive, the material in question having already been gathered together".

425 In the restricted form the subpoena was held to have a "legitimate forensic purpose". The basis of the submission in relation to legitimate forensic purpose was that interests of justice are best served by all evidence on issues in the litigation being available to the Court: see page 4 of the judgment. (See also Marcel at 258E; my judgment (DLJT: 8) of 12 February 1999 and Sheppard J in Bank of NSW v Withers [1928] HCA 33; (1981) 35 ALR 21 at 40-42).

426 In other words it is inappropriate for a court in relation to material produced on subpoena to require parties (confronted with an application to set aside a subpoena) to tender evidence as to the precise basis or precise forensic purpose for which the material sought by the subpoena is to be used. This is especially so when the application is made by an opposing party. This is undoubtedly one of the reasons why courts do not generally regard a party as having standing to set aside a subpoena issued to a stranger by an opposing party.

427 In a practical sense it would make the administration of justice impossible if parties had standing as of right to challenge subpoena by opposing parties; and each party had to establish by evidence by reason of an application made by another party (and not the stranger to whom the subpoena was issued) the precise forensic purpose for which the document was sought under the subpoena.

428 If the court allowed this process it would unduly interfere with the trial process.

429 In Waind v Hill Moffitt P at 381E outlined the three steps involved in the procedure in having a third party bringing documents to the Court and in the subsequent use of those documents. The first is obeying the subpoena, by the witness bringing the documents to the Court and handing them to the Judge. The second step is the decision of the Judge concerning the preliminary uses of the documents, including whether or not inspection should be permitted. The third step in the admission into evidence of the document in whole or in part, or the use of it in the process of evidence being put before the Court by cross-examination or otherwise. Moffitt P. concludes "in these three steps the strangers and their parties have different rights, and the function of the judge differs."

430 It is to be noted that in the above analysis his Honour does not suggest that a discussion as to compliance with the subpoena between the third party and the party issuing it is in any way illegitimate. What his Honour says is that it is oppressive to place upon a stranger an obligation to form a judgment as to what is relevant to the issue joined in a proceeding to which he is not a party, and it would be an abuse of the use of a subpoena to impose that obligation; see 382B. That is why it follows that it is an abuse to use any subpoena, even to a party, to obtain discovery (see Small's case) and that a subpoena can only properly be used for the documents described in particular or general terms which does not involve the making of such a judgment.

431 The Plaintiff's submitted in relation to "fishing" and SCR Pt 37 r 11 to the effect that a party and a stranger do not have the power to "rewrite the whole subpoena"; the agreement operated to read down every paragraph so that the subpoena applied only to documents known to Inkster and Woodhouse is most "iniquitous" because it gave to the Police a carte blanche and that there was no basis by which defendant could relieve the Police from compliance because the subpoena was tantamount to a writ, and that the Police acted wrongly by not telling the plaintiff that they proposed to produce documents under the subpoena as read down. These propositions have to be seen in the context of the plaintiff having carried out the precise same activity in relation to its subpoena. The submissions are inappropriate, and ignore usual practice as demonstrated by the Plaintiff's legal advisers in relation to the subpoena issued by the plaintiff.

432 The Plaintiff's subpoena to the Police was set aside by Ireland J. on the basis of public interest immunity which the defendant sensibly opted not to contest.

Form of subpoena (Defendant's Submissions)

433 Even though this application is hypothetical, in the sense that the subpoena obligations have been discharged and the Court is now being asked to consider the validity of the subpoena, the defendant made the following submissions in relation to the subpoena as if the application had taken place.

434 The defendant does not press paragraphs A1, A2 and A4. In relation to paragraph C, the defendant presses the paragraph on the basis that it reads "all records etc" - this I allow. In summary the Defendant's previous submissions on "fishing" make it clear that a party is entitled to issue a subpoena as part of a legitimate pre-trial process to investigate the issues identified in the litigation or likely to arise. The test is not whether the documents are admissible, but whether the documents have an apparent or adjectival relevance; if a party reasonably suspects documents exist which relate to issues in the case identified. A party which does not have a case cannot issue a subpoena in the hope that one might be found.

435 In essence the plaintiff is submitting that the test of apparent or adjectival relevance is much closer to the test for admissibility of relevant evidence than courts have recognised is encompassed by the pre-trial investigative processes. It is not in the interest of the administration of justice that the test for apparent or adjectival relevance is pushed close to the test for admissibility of evidence.

436 Any discussion as to the form of the subpoena should be focused on those paragraphs of the subpoena that the defendant actually pressed, namely B, C, D and E. I shall not set out the defendant's submissions as to the balance of the subpoena.

437 As to paragraph B: Detective Inkster investigated the allegations against Marsden made by Deirdre Grusovin when a member of the NSW Parliament. This is specifically referred to in the Witness program published on 7 May 1996; see lines 159 to 164 of the matter complained of. (This is the same material as was subpoenaed by the plaintiff.)

438 As to paragraph C: see paragraph 411 hereof.

439 As to paragraph D: D3 is a crucial witness in the litigation. It is a notorious fact that D3 has made numerous statements concerning the plaintiff, one of which was published by the defendant in the first matter complained of. The evidence of D3 is specifically referred to in the letter dated 22 December 1998 from Woodhouse to Bell which is Annexure G to the affidavit of Woodhouse of 2 March 1999; see also Exhibit 11. Annexure H to the affidavit of Potter made 2 March 1998 makes it clear that the Plaintiff's relationship with D3 is a matter currently the subject of a Police investigation (see paragraph 75). One of the matters the defendant proposes to cross-examine the plaintiff on is the circumstances in which D3 retracted his statement to the Police. There also arises the question of whether the defendant can have a "declaration of hostility" in relation to D3's evidence if he is called in chief by the defendant (presumably this is intended as a reference to s 38 of the Evidence Act, 1995 (NSW)).

440 As to paragraph E: Fisk was the subject of discussion in the Today Tonight program published 13 March 1995, see lines 125 to 154. The Defendant's presentation of the Fisk material is subject of the Plaintiff's particulars of malice 3(a)(iii)(2)(g) and 3(c)(4)(xxii)(f). One of the matters on which the defendant relies in its defence of qualified privilege is its treatment of Fisk. It proposes to demonstrate the various statements made by Fisk and how the defendant utilised the material in a reasonable way in the matter published.

441 In the circumstances, the defendant submits that there is a more profound reason for the issue of the subpoena and the form of the subpoena than to "throw dirt" at the plaintiff.

442 Because the subpoena is not "fishing", in the sense that the defendant had no case and it was searching for material to make a case, the defendant had a legitimate forensic purpose in issuing the subpoena in the form it took.

443 It would be quite unreasonable to require the defendant at this stage of the litigation to justify the "forensic purpose" of the various classes of documents referred to in the subpoena by tendering evidence to establish that the documents sought are admissible to prove an aspect of the Defendant's case as particularised or to show on what basis the documents were to be utilised by the defendant to cross examine the plaintiff and his witnesses. The Supreme Court of New South Wales does not have the resources to investigate on motions brought by parties subpoenas issued by opposing parties to strangers in the various cases coming before it, as the plaintiff has invited the Court to do in this case. Accordingly, except where a stranger challenges the legitimate forensic purpose of the classes of documents caught by a subpoena, the Court should be loath to investigate in detail the forensic purpose for which documents are sought by a party at the suit of the opposing party.

444 In response to the plaintiff's submissions referred to in paragraph 245 above, the defendant says: the subpoena was almost identical in terms of that of the plaintiff; this is not just a case on truth; justification is but one aspect of the Defendant's defence.

445 The evidence does not show that the defendant "focused" on the latter of 1998 and the early part on 1999 on truth. The Court knows from the matters considered by it and the orders made by it, the evidence of Mr Angus at T535.15-20. Mr Angus was primarily concerned with completing the interlocutory aspects of the matter in the light of the order for expedition.

446 The evidence shows that the Defendant's preparedness to accept discharge of the Police's obligations under the subpoena by production of the documents referred to in the meeting of 21 January 1999 was on the basis of counsel's advice; and, on the basis that Angus was not looking for dirt to throw at the plaintiff (T847.45-50); and, in circumstances where Angus had no idea that the Police had the documents comprising the statements of the new complainants when he issued the subpoena (T849.20-30). Further, it was in circumstances where the information containing the 12 new complainants was totally unexpected (T855.55).

447 As to the suggestion (paragraph 246 hereof) of the defendant's readiness to sacrifice all for the 12 names, this is contrary to the evidence of Ms Barnett: see T996, T998.10-15, T993.20 and T995.40. This evidence was not challenged. Further, there is no evidence Ms Barnett or anybody else knew about "the 12 new complainants" prior to the issue of the subpoena.

448 As to "no legitimate forensic purpose", and "lack of relevance", these submissions are encompassed in the submissions on "fishing".

449 The fact that the pre-trial discovery extends beyond particular allegations identified in particulars is not unusual. Merkel J said in Esso v FCT (1998) 159 ALR 604 at 701-2, it is a well established rule that discoverable documents are not limited to documents which would be evidence to prove or disprove a matter in question in the action, and that access is given on discovery for broader investigative purposes.

450 The narrow view that a subpoena was oppressive when it required the person to whom it was addressed to produce documents described as relating to a matter of fact that was capable of being an issue in the proceedings or to a defined issue in the proceedings, expressed by Rath J. in Finnie v Dalglish [1982] 1 NSWLR 400, has not been followed and is not consistent with authority: see Southern Pacific Hotel Services v Southern Pacific Hotel Corp [1984] 1 NSWLR 710 at 719, and Lucas Industries v Hewitt (1978) 18 ALR 557.

451 However, in Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 92, Excel Finance Corp Ltd, Re; Worthley v ASC (1993) 113 ALR 543 and Adelaide Steamship Company v Spalvins, Kent, Brandford, Russell (1997) 24 ACSR 536 the Courts have said that expressions such as "relating to [a particular subject matter]" may be permissible. In Lucas Industries the Full Federal Court held that the mere use of the expression "relating to [a particular subject matter]" did not impose of itself an unreasonable burden on a respondent. The test was whether the class of documents was identified sufficiently clearly in the circumstances of the case. The Court also held that while documents required in subpoena duces tecum must be specified with reasonable particularity, a degree of generality in the description of the documents, might, according to the circumstances, be compatible with reasonableness.

452 Generally speaking, the question of what is a reasonable obligation to cast on a party to collect and produce documents on a stranger is a relevant circumstance. What might be burdensome to small entities might be less so to large, highly organised and well-staffed entities.

453 In the present case it is relevant that the stranger and the plaintiff adduced no evidence that they did know what documents were required or that the search for would be unduly onerous. Of particular interest is the fact that the NSW Police had already collected the documents together to respond to the plaintiff's subpoena: see the decision of Ireland J of 24 December 1998 at page 3.

454 The essence of an obligation to make discovery is that a party decides whether documents in his possession relate to the issues in the action. However a subpoena does not in terms seek to impose this task on a respondent. A subpoena seeks production of documents the contents of which relate to specified subjects. A respondent does not have to direct his mind to the issues in the proceedings (see Lucas Industries at 569).

455 The defendant submitted above that a subpoena can only properly be used for the production of documents described in particular or general terms which does not involve the making of a judgment as to what is relevant to the issues joined in the proceedings. However it does not follow that because the party who issues a subpoena is unaware of the precise description of a particular document, or whether a particular document or documents is in the possession of the witness, or even whether it exists, or is unaware of its contents, that the subpoena, or even a subpoena in general terms, amounts to the use of the subpoena for the purpose of "discovery". This involves a misconception of the different functions of discovery and of a subpoena for production: see Waind v Hill at 382B ff.

Submissions from the Plaintiff in Reply

456 These were extensive and detailed. What I consider to be the salient points will here be referred to, especially those that pick up some of the defendant's submissions not hitherto mentioned.

457 The power to set aside a subpoena is found in SCR Pt 37 r 8. In any event, the power to prevent an abuse of its own process is an inherent power of the court. The defendant's submission that the court has no jurisdiction is not tenable.

458 The defendant seems to present three submissions on standing:

(a) the plaintiff's interest in the protection of the documents produced under the subpoena has been determined in separate proceedings;

(b) the plaintiff's interest does not satisfy the test in Marcel;

(c) in the alternative, the plaintiff does not have standing to challenge the validity of the subpoena on the ground that it is fishing, oppressive and unintelligible in form.

459 As to (a): this submission is "incomprehensible", the plaintiff submits.

460 As to (b): whether or not this test is correct, there can be no doubt that the Marcel test is satisfied where the plaintiff's legal rights will be interfered with by the execution of the subpoena. In any event, this court should follow the test adopted by McClelland J in Compsyd.

461 As to (c): this submission raises a distinction which has never been made in any of the cases. The problem with the submission is that a fishing, oppressive or unintelligible subpoena is an abuse of process: Botany Bay at 100-101. A party obviously has an interest in ensuring that the processes of the court are not abused in the very proceedings where his rights are to be determined.

462 The defendant seeks to distinguish Johns v ASC. It is true that that case concerns the provisions of the Australian Securities Commission Act 1989 (Cth). However, the fact that a different statute was involved does not make the reasoning inapplicable. Both the Australian Securities Commission Act and the Police Service Act have provisions concerning investigation of criminal allegations. That is why the reasoning in Johns may be applied in the present case. That is, the same principle of statutory interpretation may be applied to a closely analogous statute.

463 As to the defendant's submission that Johns and Ainsworth concerned "a person's right to be heard before a statutory tribunal published an adverse finding against the person", there are made two responses to this submission. First, Johns did not involve publication by a statutory tribunal of an adverse finding but rather a decision by the ASC (being an investigative body) to disclose documents to a Royal Commission (being closely analogous to a court). That is the point of the analogy. Secondly, although Ainsworth does involve a right to be heard before a statutory tribunal publishes adverse findings, the point of that case for present purposes is that an adverse effect on one's reputation as a result of a decision is sufficient to create an interest in the making of that decision. Here, the production of documents by the Police in a defamation case obviously impacts directly upon the plaintiff's reputation.

464 As to this, I interpolate that it must be observed that mere production cannot affect reputation. Arguably inspection might; forensic deployment certainly would. But this is a defamation action, after all.

465 The defendant asserted that the Batemans Bay case is inapplicable because it concerns standing to seek an injunction to prevent a statutory corporation acting beyond its powers. There are two responses made to this submission. First, the Batemans Bay case interprets the meaning of "interest" under the general law: if the plaintiff had a sufficient "interest" to seek an injunction he would clearly have a sufficient "interest" to be heard on an application to set aside a subpoena. Secondly, there is a direct analogy between the Batemans Bay case and the present because the plaintiff asserts that the Police were acting ultra vires in entering into the agreement with the defendant to abuse the processes of the court (if, I interpolate, these findings are made).

466 The defendant submits that the plaintiff's submission concerning Marcel's case is inapplicable because that case concerned the right to be heard before the publication of an adverse finding. That is incorrect, it is said. That case concerned the duties of the Police when they were issued with a subpoena in civil litigation. It is on all fours with the present case.

467 It is noteworthy, the plaintiff responds, that the defendant makes clear that it is only attempting to sustain paragraphs B, C, D and E of the subpoena dated 18 January 1999. Accordingly, it is important to note that there is apparently no issue that the rest of the subpoena is invalid.

468 Paragraphs D and E of the subpoena cannot be relevant to the truth of the imputations since they relate simply to conflicting statements made by D3 concerning allegations (of any kind) about Marsden (para D) and to conflicting statements (relating to any issue) made by Colin Fisk (para E). Those paragraphs are "absurd". Further, paragraph C is defective in form because it does not refer to any form of document and may therefore be disregarded. This submission I have rejected. That leaves paragraph B. That paragraph is not relevant in terms to the particulars of truth and contextual truth because it is not confined to the complainants particularised. Further, the requirements of SCR Pt 15 r 13(2)(b) require that the defendant particularise any allegation of truth even where that material is only used to rebut the plaintiff's case on the falsity of the imputation: King v John Fairfax [1983] 1 NSWLR 31, at 34A. The plaintiff is not permitted to "fish" for fresh particulars relating to the falsity of imputations on the issue of damages any more than it is permitted to do so on the defences of truth and contextual truth.

469 For reasons noted in the preceding paragraph, it is submitted, paragraphs C, D and E may be disregarded. That leaves paragraph B. Again the same propositions put in the last paragraph apply here. The paragraph does not relate in terms to any of the complainants particularised. Again, the defendant is fishing for new particulars which if inserted in the particulars could then be made the subject of evidence and cross-examination.

470 It must first be noted here that there is no issue on the pleadings about the plaintiff visiting premises other than Costellos which are used for juvenile male prostitution. Again, the defendant is simply fishing for this material. So far as Costellos is concerned, paragraphs C, D and E may be disregarded. Paragraph B is not in its terms confined to Costellos. The paragraph does not relate to Costellos at all. A paragraph drafted to pick up allegations of under age sex at Costellos involving the plaintiff and D2 would pick up a matter relevant to the proceedings. However, the paragraph is not confined to under age sex at Costellos by the plaintiff.

471 The justification particulars regarding D13-D16 were not part of these proceedings on 18 January 1999 and therefore could not relate to any issue in the proceedings.

472 There is nothing in paragraphs B-E which relates to D1. A fortiori there is nothing which refers to statements being made by him which are contradictory. Again, if the paragraph were drafted in those terms and made specific there might be some possibility that it would be valid.

473 It is asserted that paragraph D of the subpoena deals with records of investigations carried out in relation to statements made by D3. Again, the problem with this paragraph is it refers to "conflicting" statements (which requires a judgment to be formed which is impermissible in a subpoena) and it relates to allegations of any kind about the plaintiff. The paragraph is defective in form and could not relate to any issue in the proceedings.

474 The defendant asserts that paragraph E is relevant because it deals with conflicting statements made by Colin John Fisk. Again, it is not permissible in a subpoena to refer to "conflicting statements" by any person since that requires a judgment to be formed by the recipient. Further, the statements are not confined so that they relate to John Marsden. Accordingly, the paragraph is ridiculously wide and cannot relate to any issue in the proceedings. The mere fact that a person is referred to in the matter complained of and in some particulars of qualified privilege does not mean that the defendant is entitled to subpoena the Police regarding "conflicting" statements made by that person over a five year period on any issue.

As to discretionary matters (plaintiff in Reply)

475 In its submissions the defendant suggests that even if the subpoena is an abuse of process and should have been set aside at an earlier time, it should not be set aside now for discretionary reasons.

476 The following points seem to be made on behalf of the defendant:

(a) the order for production is now spent and no longer has any operative effect;

(b) the plaintiff and the defendant have been granted access to the documents produced under the subpoena and the plaintiff has made a claim for privilege in respect of some of those documents;

(c) an earlier motion to set aside the subpoena was dismissed by me on 2 March 1999.

477 Each of these matters are dealt with in turn.

478 As to (a): it cannot be said that the order to produce contained in the subpoena no longer has operative effect. The Police have been producing documents since 1 February 1999 and have done so on a number of occasions. It is not clear whether there are any further documents to be produced pursuant to the agreement entered into between the Police and the defendant (see Exhibit 11, tab 35). Moreover, the Police have never purported to comply with the whole of the subpoena. Instead, they have purported, at most, to comply with the "agreement". It follows that the subpoena - the order of the court - has never been fulfilled. It is thus quite incorrect to say that the subpoena "was obeyed by production of documents to the court on 1, 5, 11 February and 9 March" or that "the purpose of the order which required production of the documents to the court has been fulfilled". In any event, the defendant has not seen most of the documents which were produced on 9 March 1999 and therefore there is still utility in the subpoena being set aside. Further, it is clear that a subpoena may be set aside and an order made for the delivery up of the documents obtained even after all the documents produced under subpoena have been inspected by the issuing party: see Marcel, at 241E.

479 As to (b): the defendant has not had access to the documents produced on 9 March. Accordingly, the order to set aside the subpoena is still of utility. Further, as noted in the previous paragraph, an order to set aside the subpoena may still be made.

480 As to (c): it was made clear on 2 March (transcript pp.121-124) that the motion was not pressed on that occasion because the documents had already been produced and inspected by the defendant (a matter urged upon the plaintiff's counsel by me). But on that same occasion it was noted by counsel for the plaintiff that because it was an interlocutory application there was no difficulty with the plaintiff bringing a similar application in the future if there was further production (as indeed happened on 9 March 1999) pursuant to the subpoena: see affidavit of Ms Gillingham of 17 March 1999, paragraph 30.

481 The plaintiff points to eleven reasons for not allowing the amendment which individually and collectively amount to three abuses of process.

482 First, it is submitted that the subpoena to the Police dated 18 January 1999 was an abuse of process and that the court should not condone such an abuse of process by allowing amendments to be effected on the basis of material purportedly produced as a consequence of that subpoena.

483 Secondly, the agreement between the Police and the defendant entered into in late January 1999 was an abuse of the processes of the court.

484 Thirdly, the agreement between the Police and the defendant and the disclosure by the Police of the material caught by the agreement was a breach of confidence and ultra vires because it was beyond the powers of the Police as contained in the Police Service Act.

485 Fourthly, the agreement and the disclosure by the Police pursuant to it was a breach of two of the Police Service Regulations which impose duties of the strictest confidence in relation to Police investigatory material.

486 Fifthly, the agreement and the disclosure by the Police was a breach of the Police Service Regulations concerning impartiality: The text of Police Service Regulation 9(7) which states that "police officers must be strictly impartial in the discharge of their duties towards all persons".

487 Sixthly, the agreement by the Police with the defendant and the disclosure pursuant to the agreement were beyond the powers of the Police (that is, ultra vires).

488 Seventhly, the agreement between the Police and the defendant and the disclosure by the Police pursuant to that agreement were in breach of the rules of natural justice.

489 Eighthly, the Police were actuated by an improper purpose in entering the agreement with the defendant.

490 Ninthly, the defendant entered the agreement with the Police for the improper purpose of obtaining new particulars of justification.

491 Tenthly, the agreement between the Police and the defendant allowed the Police (and not the court) to determine any claim for public interest immunity since documents subject to the asserted claim were never produced to the court.

492 Eleventhly, the agreement between the plaintiff and the defendant was a contempt of court on two bases:

(a) a failure to produce to the court documents which were caught by subpoena is a contempt of court: James v Cowan ([1929] HCA 46; 1929) 42 CLR 305, Commissioner Railways v Small at 573-574; Re Barnes [1968] 1 NSWR 697, at 700.9;

(b) to procure a person served with a subpoena not to produce the documents referred to in it is also a contempt of court: Lane v Registrar of Supreme Court of NSW [1981] HCA 35; (1981) 148 CLR 245, particularly at 258-260.

493 It is submitted in reply that in response to the plaintiff's seventh submission that the agreement and the disclosure by the Police were in breach of the rules of natural justice, the defendant responds by saying that the defendant notified the plaintiff by letter of 18 January of the issuing of the subpoena. It should be noted that the plaintiff was never given a copy of the terms of the subpoena, no copy of the subpoena was appended to the envelopes produced by the Police, there was no indication of the material to be produced, there was no notification of the agreement and in particular there was no notification that 12 new complainants were to be provided. The defendant does not seem to have any real answer to the proposition that the actions of the Police were in breach of the rules of natural justice. The following additional matters should be noted:

(a) no copy of the schedule to the subpoena was produced despite the terms of the subpoena: see Gillingham's affidavit of 17 March 1999, para 11;

(b) In a judgment of 2 March 1999 I held that a party is not entitled to access to the other party's subpoenas before production to the court by the recipient of the subpoena: see affidavit of Gillingham dated 17 March 1999, paras 3 and 4;

(c) the Registry does not keep copies of subpoenas issued in the proceedings: Gillingham affidavit of 17 March 1999, para 5;

(d) the first notice the plaintiff had of the schedule to the subpoena was on Thursday, 18 February 1999 (a week after the defendant had inspected the statements of D17-D25): see affidavit of Gillingham dated 17 March 1999, paras 6 and 26;

(e) the plaintiff first moved to set the subpoena aside four working days later on Wednesday, 24 February 1999: see affidavit of Gillingham dated 17 March 1999, para 27;

(f) the statements of D17-D25 were produced on 10 February 1999 (see affidavits of Angus dated 18 February 1999, para 19 and 5 March 1999, para 3) in the Registry rather than in court, eleven days after production began on 1 February 1999 (affidavit of Gillingham dated 17 March 1999, para 9);

(g) the defendant did not call upon the subpoena in open court on any day and particularly not on 10 or 11 February: Gillingham affidavit of 12 April 1999, paras 3 and 4;

(h) on each occasion the documents were produced under the subpoena dated 18 January, including the occasion on which the statements of D17-D25 were produced, orders for first access were sought by the plaintiff but denied by Deputy Registrar Howe: affidavit of Gillingham dated 17 March 1999, para 17;

(i) there was a vast quantity of material produced by the Police in answer to the subpoena: Phillips Fox have arranged the material into 20 large lever arch files; the documents which the statements of D17-D25 were produced on 10 February 1999 filled 9 large lever arch files: affidavit of Gillingham dated 12 April 1999, para 8;

(j) Ms Gillingham was principally concerned to claim privilege over material given by the plaintiff to the Police (see her affidavit of 17 March 1999 para 18); she did not have any opportunity to read the new complainant's statements in any detail as she was under considerable pressure: she did not have the benefit of an order for first access and Mr Price at Mallesons was waiting a few feet away while she skimmed through the material (para 18 of her affidavit of 17 March 1999);

(k) Ms Gillingham had no way of knowing about "the deal" that had been struck in January between Mr Singleton and Mr Angus (see Exhibit 11, tabs 32 and 35);

(l) the Police had set aside the plaintiff's subpoena of October 1998 which sought material relating to Mr Marsden on the basis of its width; they also challenged particular aspects of the subpoena on the basis of no legitimate forensic purpose and public interest immunity (Exhibit 11, tab 23 and the judgment of Ireland J of 24 December 1999); Ms Gillingham was entitled to assume that the Police would have taken the same attitude towards subpoenas issued at the request of the defendant (ie. that material would not be produced if the subpoena was oppressive, lacked a legitimate forensic purpose, sought documents the subject of public interest immunity or related to investigations into Mr Marsden generally);

(m) at the time of production pursuant to the subpoena of 18 January 1999, many other things were going on at the same time, including the first round of the defendant's amendment application, the defendant's first trip to the Court of Appeal and the questions about jury procedure (see the affidavit of Gillingham dated 17 March 1999, para 22 and Mr Angus' affidavits of 4 and 8 February 1999).

494 To the plaintiff's eighth submission that the Police were actuated by the improper purpose of procuring an adjournment in entering into the agreement with the defendant, there is no contrary submission except that the plaintiff's submissions are made without evidence to support them. Accordingly, the twelve references to the evidence are made set out. I will not repeat them.

495 To the plaintiff's ninth proposition that the defendant was actuated by an improper purpose in entering into the agreement with the Police, the defendant simply responds by saying that there is no evidence cited in support of the propositions in the plaintiff's submissions. The plaintiff here asserts nine evidence references which I will not repeat.

496 To the plaintiff's tenth submission that the Police and not the court is to determine claims for public interest immunity, the defendant's key proposition was that it was quite legitimate for the Police not to produce to the court documents which the Police asserted were subject to public interest immunity. This is an "absolutely outrageous submission", the plaintiff submits. If the recipient of a subpoena wishes to claim public interest immunity those documents must be produced to the court which will then determine the validity of the claim. Any contrary submission involves an assertion that the Crown and not the court is to determine claims for public interest immunity. There is no basis at all for this submission.

Conclusions, Findings & Orders

497 As, I trust, can be seen, the Court was well served by extensive and detailed and compelling submissions both oral (from five counsel) and written. Having concluded that otherwise the defendant is entitled to be granted leave to amend (subject to reduced particulars), the asserted ultimate bar - the subpoena issue - falls for consideration and resolution.

498 The plaintiff moves to set aside the defendant's subpoena as an abuse of process of the Court and SCR Pt 37 r 8 provides that the Court may, or of its own motion or on the motion of any person having sufficient interest, set aside the subpoena wholly or in part. The plaintiff contends, as has been indicated, that there are five bases for his having standing to seek this relief.

499 The first is that he is a party to the proceedings. Reliance is placed by the plaintiff on the decision of Powell J in Botany Bay (supra); however I am of the opinion that the proper principles in this regard are those referred to above by McClelland J in Compsyd (supra). I agree however with the submissions of the plaintiff that the decision of Hunt J in Wran v ABC (supra) can probably be viewed as being reached per incuriam, his Honour making no reference to the relevant Rule of Court at 264F. The connection between the party and the documents the subject of the subpoena sought to be set aside as an abuse of process (and thus vitiate the production of the documents), must, in my view, be established.

500 Thus one turns to the second basis relied upon namely that the documents contain information confidential to the plaintiff. Reliance is placed upon the Police Service Regulations as to confidentiality. Here the situation appears to me to become somewhat blurred. The object of the exercise on the part of the plaintiff in seeking the relief is to preclude production of the documents to the Court. Assuming the validity of the subpoena, confidentiality, even in my view within the passage from Johns cited above and relied upon by the plaintiff, is a matter that does not go to the production to the Court but to the issue of inspection (save in cases, and clear cases, of public interest immunity).

501 The same problem affects the third basis upon which the plaintiff relies namely, "disclosure" of the material the subject of the subpoena would affect the plaintiff's reputation, reliance being upon Johns and Ainsworth. It is said that disclosure of the documents would have an obvious impact on the reputation of the plaintiff and that is sufficient to ground standing, that is, to set aside the subpoena to preclude production to the Court, or if production has been effected, to make orders of the kind made by Powell J in Botany Bay. The matter of reputation is again one that attends the question of inspection. To the extent that the plaintiff has moved already to preserve his interest in relation to certain of the documents and denied access to the defendant thereby, any claim in this regard, in my view, has been satisfied. I would add that it is curious that in a defamation action that disclosure affecting reputation would be sufficient by itself to provide a basis for standing to set aside a subpoena as an abuse of process.

502 I reject the submission of the plaintiff that production, and it is to be noted that this is framed in terms of "production" as opposed to inspection, let alone forensic deployment, would affect the economic interest of the plaintiff based upon Batemans Bay. The plaintiff points to damages as constituting the economic interests that would be affected. I do not see any basis that they could be affected by the production or inspection of the documents. Their subsequent deployment legitimately could have that effect but that would conform with the purpose of the exercise on the part of the defendant, namely, to deprive the plaintiff of damages or to minimise his award of them.

503 As to the fifth ground, the principles of natural justice require Police to notify a person under investigation of the right to be heard before a decision to disclose Police investigation documents is taken where that disclosure would be prejudicial to his interests, again the "blurring" occurs. There is no disclosure by the mere production by the Police to the Court of the documents. It is that process that the plaintiff is seeking to obviate by having the subpoena set aside. Otherwise the course available to him is to take steps which he in fact has taken to prevent inspection of the documents. In this context it is to be noted that the plaintiff took no steps to protect any interest in relation to the documents produced to the Court by the Police in relation to D17 to D25 in any event.

504 In the circumstances at very best I have the greatest reservations as to whether or not Mr Marsden has the standing to seek the remedy he does. However as the Rule provides that the Court can on its own motion set aside the subpoena in whole or in part, I would consider it to be conformable with practice and principle that the Court having decided to take that course note the plaintiff's submissions on that issue.

505 In that context, I then turn to the various bases upon which (assuming standing or that the Court is acting on its own motion), it is contended that the subpoena is an abuse of process.

506 Conformably with the submissions for the defendant the plaintiff, in my view, cannot be heard to argue that the subpoena constitutes an abuse of process by reason of being "oppressive". That is a matter for the recipient of the subpoena. In this case the Police Service has taken no step to have it set aside in that respect (or, indeed, in any other).

507 I am however persuaded that it is open to a person in the position of the plaintiff to argue that on its face the subpoena can be characterised as "fishing". Bearing in mind the power of the Court to set aside a subpoena in whole or in part, it seems to me that a great deal of the force in any submission as to "fishing" is removed by the abandonment by the defendant of paragraphs 1, 2 and 3 of section A. The defendant has similarly abandoned A17. Bearing in mind the tests to be applied in the determination of whether or not a subpoena is "fishing" I must say I would have reservations about A22.

508 The focus however of the whole of this application in reality is the production of documents that has lead to the defendant's leave application in respect to D17 to D25. The focus of that real element is made up of paragraphs B and C of the subpoena to which I will return.

509 As to paragraphs D and E these paragraphs of the subpoena on their face clearly constitute the proscribed seeking of discovery from a third party. The requirement for the formation of judgment is quite clear by the mere insertion of the words, at the very least, in relation to conflicting statements in each of the paragraphs. Neither of those paragraphs can survive.

510 The next paragraph of the subpoena to be dealt with is paragraph C. As I have made clear in the course of this judgment I accept that the omission of the introductory words cannot on any reasonable basis be characterised as otherwise than a typographical error.

511 I have no difficulty at all in coming to the conclusion that paragraph B of the subpoena cannot be impugned on any of the bases I have found to be available to the plaintiff to have that paragraph set aside as an abuse of process. I find that paragraph B dealing with the Inkster investigations refers to identifiable and relevant material, relevant substantively and adjectivally to the issues in the trial and does not amount to fishing. In this regard I accept the submissions of the defendant.

512 As to paragraph C at the time of the issue of the subpoena, 18 January 1999, the evidence clearly is, as indeed advanced by the plaintiff, that the defendant was aware of investigations being carried out by Superintendent Woodhouse. The context or nature of such investigations must have been abundantly clear as involving the sexual conduct of the plaintiff. That conduct is the essence of this trial in terms of the defence of justification and the plaintiff's assertion that the imputations are false. In this regard I state that I am satisfied that it was forensically legitimate for the defendant to seek corroboration of allegations of truth on the pleadings and in opposition to the assertion of falsity and to obtain material for the cross-examination of the plaintiff on, at least, those issues. In this respect I accept the evidence of Mr Angus.

513 Thus, in relation to paragraph C none of the bases hitherto relied upon support the position of the plaintiff.

514 The real complaint of the plaintiff is what is alleged to be the "conspiracy" or the "deal" arising from a "secret meeting" between representatives of the Police Service and the solicitors for the defendant.

515 By reason of my acceptance of the evidence of Mr Angus, Ms Barnett and Mr Woodhouse I am simply unable to conclude that the purpose of the issue of the subpoena was to fish for "new complainants". Such a finding would be, in my respectful view, perverse in light of Mr Angus' evidence; he did not have "a clue" as to what would be forthcoming. The purpose of the subpoena was as referred to above in the evidence of Mr Angus. Further, I do not find there to have been agreement between the solicitors for the defendant and the Police as articulated in the plaintiff's submissions. On the evidence I am unable to find any "secret" deal; the arrangement conforms with practice and was founded, in my view, I find, in a sensible approach to potential disputation and litigation on the issue of production.

516 Further, I cannot accept that the purpose of the Police in providing this material was to thwart the trial and have it adjourned. I can conceive of no reason why the Police would wish to do so. The more so is this the case in the context of there being no evidence of Mr Marsden having been charged; of their being evidence that the Crown advised against the Police seeking a stay of proceedings, and up to now there being no evidence of the outcome of Mr Woodhouse's report in March to the DPP.

517 When one takes into account the evidence of Mr Potter the practice of having meetings and making arrangements with recipients of subpoenas as to production of documents is an accepted one. Similarly it is accepted that when one party embarks upon that exercise that party does not inform its opponent. This is not a matter of a "secret meeting"; it is a matter of usual practice. Indeed, it is a practice which I accept on the evidence so entrenched, and indeed, recommended by the decisions in addition to that of myself referred to above, that it can operate concurrently with the provisions of SCR Pt 37 r 11 which only provides for the alteration of the time specified in the subpoena for attendance and production. The Rule is otherwise silent.

518 The trenchant criticism made of the Police Service with respect to the assertion of a claim for public interest immunity is misconceived, in the end, and on the evidence, in my view. Of course it is clear law that it is not for the Police to state that documents are protected by public interest immunity; that is a matter only for the Courts (Sankey vWhitlam (supra)). It is quite open to the Police in what I regard as legitimate discussions with the party issuing the subpoena to indicate that in respect of documents caught by the subpoena that those documents would be the subject of claim for public interest immunity. In the face of a statement to that effect by the Police, it is perfectly open to the party issuing the subpoena to choose not to litigate that claim. That does not amount to the abrogation to the Police by the Police of the function of the Court. I do not understand Mr Woodhouse to have been seeking to assert that the documents "affected by public interest immunity" were in fact protected as a matter of law by that doctrine. His position was that in the event that the subpoena was called upon a body of the material would be subject to such a claim. The defendant was entitled to elect not to litigate such a claim.

519 What in reality I find to have occurred, on the evidence, can be described as a "windfall" for the defendant. That "windfall" I find not to have been the consequence of any impropriety on the part of the Police or on the part of the defendant's solicitors. It may have been desirable I will go so far as to say, that not only, once an arrangement was made between the defendant's solicitors and the Police, would the documents be produced "without fanfare", they should have been produced "without comment". The fact that Mr Singleton used the unfortunate expression of "without fanfare" (which can fairly can be understood as meaning without the prosecution of a claim for public interest immunity), and the fact that Mr Singleton appears to have taken it upon himself to describe some of the material as "interesting" and referring to there being "new complainants" does not impugn the arrangement. When one considers the totality of the evidence the reference to "new" complainants is not surprising given that Mr Inkster had conducted his inquiries into his complainants (as-it-were) and that was followed by the inquiries conducted by Mr Woodhouse into complainants he was investigating, such complainants being able to be described as "new" that is, thitherto uninvestigated.

520 What in reality has here occurred is that legitimate processes have produced an unforeseen result. The indignation of the plaintiff is understandable but does not justify the use of the result to impugn the process that brought it about.

521 The evidence called for the defendant and taking into account the evidence of Mr Potter as to matters of practice, makes it impossible for me to conclude that the defendant embarked upon anything otherwise than a legitimate exercise in the preparation of the defence case for trial involving, I find, no improper "agreement" or "deal" with the Police. The consequence, as I have said, was a "windfall" in respect of which, as I have already found, the defendant's solicitors acted promptly and with due care.

522 As to the charge of the lack of partiality on the part of the Police, this is founded in what is perceived to be the Police response to the plaintiff's subpoena dealt with by Ireland J on 24 December 1998 and their response to the defendant's subpoena of 18 January 1999. The critical feature of the history of events is the interview of the plaintiff by the Police on 29 January. Shortly stated, that changed virtually everything as far as the Police were concerned. Indeed, it can be seen that as at that date (and the subsequent further meetings with Mr Lee), the Police had put to Mr Marsden all that they had to put to him and provided him with an opportunity of which he availed himself to deal with the allegations. If that important fact is kept in mind there is no reasonable basis upon which the charge of partiality can be made against the Police Service.

523 Thus, in summary, insofar as the plaintiff has no standing to set aside the subpoena on the basis of abuse of process and I have exercised the discretion which the Court clearly has to consider that issue, whilst various components of the subpoena can be impugned upon the bases to which I have referred, in the end, in the exercise of my discretion, I decline to set it aside. The plaintiff has failed to establish the real and principal basis of attack upon the whole exercise, namely the impropriety of the motive of the defendant in issuing the subpoena and entering an agreement to obtain twelve new complainants, to seek to amend and to adjourn the trial to the prejudice to the point of injustice of the plaintiff. Further, even if there are components of the documents in fact produced that are still subject to argument as to inspection by the Police both before me and in the Court of Appeal, in terms of the practical administration of this trial, the exercise of the answering of this subpoena has been effectively completed. In this regard I must remark upon one submission made for the plaintiff. It was suggested that if I found that the amendments were based upon information improperly obtained, s 138 of the Evidence Act 1995 (NSW) would forever preclude the defendant from relying upon that material. With that proposition I cannot agree. Section 138 of the Evidence Act 1995 (NSW) is concerned with admissibility and its operation would be triggered by the tendering of the evidence at which time many forensic events might have taken place subsequent to those which have occupied the Court for the last two months which seriously could affect the operation of the section.

524 Another issue is the question of "confidentiality/secrecy" imposed upon the Police by the regulations in the Police Service Regulations. The submissions of the plaintiff were not really addressed by the defendant. In the instant case, although as a matter of discretion I have decided not to set aside the subpoena had I done so there still would have remained paragraphs B and C as a valid order of the Court. I mention this in the light of the concession made for the plaintiff that a valid order of the Court constituted by a subpoena would also be "proper authority" in terms of the regulations. I express the view that it would constitute a basis for the non-maintenance of confidentiality and secrecy - in the absence of a successful claim for public interest immunity - to the extent that the Police Service would be required to comply with the order of the Court and produce to the Court the relevant documents. In the absence of full argument as to the ramifications of the obligations of confidentiality and secrecy generally as affecting the Police Service, I really can say no more than what I have said. It was suggested that at the very least it would have been the "honourable" thing for the Police to have done to inform the plaintiff of the fact of the subpoena, the outcome of the discussions which I have found to be legitimate and the proposal to produce documents to the Court. I do not consider there to be any need nor consider it to be appropriate for me to comment one way or the other on this proposition. In the light of the acknowledgment that a valid subpoena constitutes the proper authority, there is no breach of any obligation of confidentiality or secrecy in my view, by the compliance by the Police Service with the order of the Court in producing the documents to the Court.

525 These applications amongst other things have highlighted the practicalities of litigation in terms of the issuing and service and compliance with subpoenas that might not otherwise be brought to the attention of the judge. In the normal course of events naturally the judge is concerned with the tendering of material which is usually identified as having come from subpoenaed documents. One matter is that the form of the subpoena requires that the recipient produce to the Court not only the documents but the subpoena itself. The schedule to the subpoena is the critical thing, of course, and it seems to be the practice that the envelope containing the documents usually has affixed to it the front page only of the subpoena and thus not the schedule. The availability of the schedule might go some way to alerting parties to the possibility that production having taken place, an application can be made either for first access or for restricted access. Another matter is Practice Note 51 which relates to the subpoena for production does not apply to defamation proceedings and any notice to the other side of the subpoena having been issued by leave is not required.

526 The outcome shall involve the dismissal of the plaintiff's Notices of Motion and orders pursuant to the defendant's Notices of Motion.

527 There are still a great deal of interlocutory matters outstanding including the issue of the availability of the contextual imputations, an outstanding matter relating to access, an application by the plaintiff as to the structure of the trial, an application by the defendant in relation to the Replies filed by the plaintiff and any application to be made in respect to the use of pseudonyms.

528 Of more immediate concern are orders to be made consequential upon the resolution of the present Notices of Motion. I am satisfied that the plaintiff is entitled to an adjournment but I am not persuaded, particularly given the refusal of leave in relation to D25, that the period thereof should be in excess of three months. Other orders I have in mind to facilitate the early resumption of the trial and the investigation of the new claims by the plaintiff, include the delivery by the defendant to the plaintiff of signed proofs of evidence of D17 to D24 and other witnesses in regard to those complainants together with copies of any physical evidence (photographs, plans, etc.), upon which the defendant intends to rely. Those matters would be the subject of delivery within 7 days.

529 Further, terms will include the defendant agreeing to the presentation of its case in a particular order presumably commencing with D1 to D6 then D13 to D16 then D17 to D24 with an indication to the plaintiff of the identity of the witnesses to be called in respect of each block. Naturally, some allowance will have to be made for flexibility in this regard depending upon the availability of witnesses, particularly any witness who might at the relevant time be in custody. The matters referred to in paragraphs 528 and 529 can be dealt with when the matter is next listed for directions.

530 It is in everyone's interests that the substantive hearing resumes this year. It would be unfortunate, to say the least, if, of this case commenced in 1995, it was to be said that this penultimate year of the century was devoted to interlocutory matters and next year, the last of the millennium, was devoted to the balance of the trial.

531 The formal orders are:

1. The Notice of Motion in each action filed by the plaintiff on 7 May 1999 is dismissed.

2. The Notice of Motion filed by the plaintiff on 12 March 1999 to set aside the defendant's subpoena is dismissed.

3. In respect of the Notice of Motion filed by the defendant in Court on 22 March 1999 seeking leave to amend:

(a) the defendant has leave to file a Third Further Amended Defence to the Third Further Amended Statement of Claim in proceedings 20223/95 in accordance with the form of MFI 1.

(b) the defendant has leave to file a Further Amended Defence to the Second Further Amended Statement of Claim in proceedings 20592/96 in accordance with MFI 2.

(c) the defendant has leave to rely on the particulars of justification contained in the Second Consolidated Particulars of Truth (Exhibit R) served on 12 March 1999 save for paragraphs 7(20), 8(23), 9(4), 9(12), 15, 16, 19 and 20 which are struck out, and as amended by letters from Mallesons Stephen Jaques to Phillips Fox dated 17 March 1999 (Exhibit S).

(d) leave to amend in respect of D25 is thereby refused.

4. I stand the matter over for further directions to a date to be fixed.

5. The exhibits on the applications are to be retained.

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Annexure

Schedule to Defendant's Subpoena:

"A. All records (that is, files, documents, correspondence, memoranda, statements, statutory declarations, affidavits, records of interview, transcripts of interview, file notes, computer printouts, audio tapes and video tapes) relating to investigations carried out during the period 1990 to date by the New South Wales Police Service into the following matters concerning John Robert Marsden ("Marsden"):-

1. Allegations of paedophilia or pederasty against Marsden.

2. Allegations that Marsden engaged male prostitutes who were under the age of 18.

3. Allegations that Marsden had engaged in criminal and other activities which were in conflict with his role as a member of the New South Wales Police Board.

4. Any association Marsden had with Colin John Fisk.

5. Allegations that Marsden had engaged in homosexual intercourse with (D1).

6. Allegations that Marsden had engaged in homosexual intercourse with (D3).

7. Allegations that Marsden had engaged in homosexual intercourse with (D5).

8. Allegations that Marsden had engaged in homosexual intercourse with (D14).

9. Allegations that Marsden had engaged in homosexual intercourse with (D2).

10. Allegations that Marsden had engaged in homosexual intercourse with (D6).

11. Allegations that Marsden had engaged in homosexual intercourse with Stacey Fenton.

12. Allegations that Marsden had engaged in homosexual intercourse with Sean or Shaun Burns.

13. Allegations that Marsden had engaged in homosexual intercourse with Narbil Elomari.

14. Allegations that Marsden had engaged in homosexual intercourse with Michael Boda.

15. Allegations that Marsden had engaged in homosexual intercourse with (D16).

16. Allegations that Marsden had engaged in homosexual intercourse with (D15).

17. Allegations that Marsden had engaged in homosexual intercourse with Fred Parrott.

18. Allegations made by Phillip Gordon Russell about Marsden's sexual conduct and the club located in Kellett Street, Kings Cross and known as Costellos.

19. Allegations made about Marsden's sexual conduct by Ronald Dunbier.

20. The search of Marsden's home by members of the New South Wales Police Service in or about May 1994.

21. Allegations that the carrying out of the search of Marsden's home in or about May 1994 by members of the New South Wales Police Service was deliberately delayed.

22. Allegations made about Marsden by Daryl Tasker.

23. Allegations that Marsden attended at the club located in Kellett Street, Kings Cross and known as Costellos or Costellos.

B. All records (that is, files, documents, correspondence, memoranda, statements, statutory declarations, affidavits, records of interview, transcripts of interview, file notes, computer printouts, audio tapes and video tapes) relating to investigations carried out under the supervision of Detective Inspector Inkster into allegations that Marsden had committed criminal offences by engaging in sexual intercourse with young male prostitutes who were under the age of 18.

C. Investigations carried out under the supervision of Superintendent Michael Woodhouse of the Child Protection Enforcement Agency into allegations that Marsden committed criminal offences by engaging in sexual intercourse with young male prostitutes who were under the age of 18.

D. All records (that is, files, documents, correspondence, memoranda, statements, statutory declarations, affidavits, records of interview, transcripts of interview, file notes, computer printouts, audio tapes and video tapes) of investigations carried out during the period 1998 to 1999 in relation to conflicting statements, including statements on oath, made by (D3) concerning allegations about Marsden.

E. All records (that is, files, documents, correspondence, memoranda, statements, statutory declarations, affidavits, records of interview, transcripts of interview, file notes, computer printouts, audio tapes and video tapes) of investigations carried out during the period 1995-1999 in relation to conflicting statements, including statements on oath, made by Colin John Fisk".

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LAST UPDATED: 23/06/1999