Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 75 (15 February 1999)

Last Updated: 18 February 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 75

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20223 of 1995

20592 of 1996

HEARING DATE{S): 15 February, 1999

JUDGDMENT DATE: 15/02/1999

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:

Mr G O'L Reynolds S.C.

Mr R G McHugh

(Plaintiff)

Mr J S Wheelhouse

(Defendant)

SOLICITORS:

Phillips Fox

(Plaintiff)

Mallesons Stephen Jaques

(Defendant)

CATCHWORDS:

Directions

ACTS CITED:

DECISION:

See paragraph 27

JUDGMENT:

- 7 -

DLJT: 9

(Ex Tempore - Revised)

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

defamation list

No. 20223 of 1995

No. 20592 of 1996

JUSTICE DAVID LEVINE

MONDAY 15 FEBRUARY 1999

JOHN MARSDEN

(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED

ACN 000 145 246

(Defendant)

Directions

1 HIS HONOUR: The plaintiff is to notify the defendant by 3pm today of any proposed amendments to his imputations. That is the first direction.

2 Before giving the second direction I indicate the great difficulty I have in accepting that the defendant needs twelve hours in which to indicate its response, or proposed response, to the proposed imputations or amended imputations of the plaintiff.

3 The effect of my ruling in relation to the plaintiff's imputations was to eliminate from the proceedings, to use the neutral term, one only, and one only in one action. That imputation was discrete in the sense of being quite detached from the series of imputations that preceded it in the relevant action, and for ease of reference I will refer to it as the "drug imputation".

4 Hitherto it has been my anticipation in the context of any proposed amendment by the plaintiff that any proposed amendment will be limited to the area of the "drug imputation" only. Whilst it is open to the plaintiff of course to seek to amend otherwise, I would candidly say that that would come as a surprise to me.

5 The "drug imputation" with which I dealt had been on the record for the for some time. The broad ambit of the defendant's position had been made quite clear for some time in relation to plaintiff's case as a whole, and really I would have thought, to use the vernacular, that as soon as the proposed amendment "hits the deck" the defendant will know immediately what its attitude to that amendment will be if allowed and what its defence would be if it is allowed.

6 Accordingly I direct the defendant to notify the plaintiff by noon tomorrow of its response to the proposed application to amend by the plaintiff. That response is to incorporate its attitude to the seeking leave to amend, and an indication, in the event of the amendment being granted, of the defences upon which it proposes to rely.

7 The next area relates to rulings and directions with respect to the jury. The moving party in relation to this is the defendant, and the indications given this morning by Mr Wheelhouse are that the directions will cover the following areas: first, that the jury should give separate and consecutive consideration to the two programs; secondly, that the video tapes will be played once only; thirdly, that the jury is not to receive prior to the sole playing of each video any indication of the plaintiff's causes of action upon them, that is the imputations.

8 By reason of the video tape being played once only, no portions can be replayed. Next, no transcript is to be made available to the jury.

9 I myself have raised the question of order of addresses and the nature and function of an opening address by counsel for the plaintiff in the light of the suggestion that the jury should see the videos without having been informed of the imputations. There may be other considerations.

10 Complaint has been made in effect that the plaintiff has given no indication as to what his position is in relation to this issue. That is so, but one presently can form the view that the plaintiff's silence is conformable with an attitude that this trial in this area should run as all trials hitherto have run.

11 If the plaintiff proposes outside of any suggestions for directions by the defendant to seek some novel directions or directions that constitute a departure from what I have said can be perceived to be the plaintiff's position, namely that this will run in the ordinary way, then no doubt the plaintiff will inform the defendant.

12 The defendant's suggestions as to directions have been fairly well set out during the course of this morning's proceedings but I will not require the defendant today to formalise them, but will require it to do so by noon tomorrow. The formalisation can by written communication setting out with precision the directions the defendant will seek on this subject matter.

13 In the light of what I have just said, if the plaintiff is going to seek any directions, he should give notice by noon in writing to the defendant.

14 It is a matter of concern to me that this expedited hearing specially fixed to commence in the second week of Term this year has not yet proceeded in a substantive way. I do not propose to be critical of either party in relation to that, but as the trial Judge in this Division allocated to hear this action I am becoming increasingly concerned at the potential for disruption of that objective being achieved.

15 As I have remarked before there are two issues only to be resolved before the jury can be empanelled to perform its limited role and those two issues are those that are the subject of the directions I have just given, namely amendment of the imputations and rulings and directions as to jury procedure.

16 Upon those matters being resolved it is my expectation that the jury will be empanelled and the trial commence. I use the word "expectation" advisedly because realistically anything can happen, even upon the resolution of those matters, that might preclude the empanelling of the jury early next week.

17 There remains three other general areas. The application by the defendant, notice of which I was given on Friday in relation to the Reply and the particulars of malice. In view of the directions I have just given on the more immediate issues I propose not to give directions today thereon, but will stand over the question of directions on the defendant's application till tomorrow.

18 The second matter outstanding is beyond my control. That is the resolution of the defendant's application to amend its defence. That is, as I have said often, perhaps the most critical application that has been made in this trial and its early resolution is most desirable, but not necessary to the empanelling of the jury.

19 The third area relates to outstanding questions about subpoenas and Notices to Produce issued by the defendant and served on the plaintiff, and to subpoenas issued to third parties.

20 Insofar as Mr Wheelhouse has made a call today in relation to a subpoena addressed to the plaintiff and has called upon a Notice to Produce served on the plaintiff in relation to some photographs, I will stand over to 10am on Wednesday that call and I will not give any directions in relation to anything the plaintiffs are to do in relation to those matters until 10am on Wednesday.

21 In relation to subpoenas, directed for example to the Commissioner Of Police, and to any claims for privilege that have to be resolved, I will stand those matters, and it is a pity I cannot articulate them with more precision, to Wednesday.

22 The List Judge is sensible of the continuing requirement that another judge resolve issues relating to privilege or issues relating to evidence in order to ensure my being, as-it-were, "quarantined" from potentially embarrassing material insofar as I am the ultimate tribunal of fact on non jury issues. With due notice I am confident that another judge could be found to dispose of those matters.

23 I can indicate quite clearly my present view that the issues affecting the jury are to be disposed of as soon as possible in anticipation of that tribunal being constituted on Monday or early next week to commence the hearing.

24 Equally I say of course that nothing I have said is to be taken as preventing, as I simply cannot prevent, any party seeking relief elsewhere at any time in respect of any ruling that I give, but I note that during the course of the to-ing and fro-ing of submissions this morning an indication was given that it is the present position of the plaintiff that no appellate step would be taken by him.

25 Both of those orders and directions that I have given in relation to the amendment of the imputations and to the jury directions all are stood over to noon on Tuesday.

26 There is one other matter I am going to raise, it is not a matter of directions, it might assist me if one or either side can produce a short note to just clarify which subpoenas and which Notices to Produce are outstanding.

27 The liberty to apply that hitherto has been granted will continue.

LAST UPDATED: 16/02/1999