Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 849 (19 August 1999)

Last Updated: 1 September 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 849

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20223 of 1995

20592 of 1996

HEARING DATE{S): 19 August 1999

JUDGMENT DATE: 19/08/1999

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:

W H Nicholas Q.C.

J S Wheelhouse

(Defendant)

SOLICITORS:

In Person

(Plaintiff)

Mallesons Stephen Jacques

(Defendant)

CATCHWORDS:

Plaintiff's application for adjournment

ACTS CITED:

DECISION:

Adjournment granted (see paragraphs 32 & 33)

JUDGMENT:

DLJT: 47

(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

THURSDAY 19AUGUST 1999

JOHN MARSDEN

(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LTD

(Defendant)

JUDGMENT (Plaintiff's application for adjournment)

1 HIS HONOUR: By a Notice of Motion, which I will grant leave to file in Court today, the plaintiff seeks the following orders: first, that the date fixed for the resumption of the trial of these proceedings be adjourned to 15 November 1999; second, that following evidence in chief and cross-examination of the plaintiff's witnesses on damage and following any evidence-in-chief of the plaintiff, that there be an adjournment of the trial until Monday 31 January 2000.

2 The present state of the fixtures in relation to this action is that on and from 18 October time is available for the disposition of any outstanding interlocutory matters. The resumption of the trial is presently fixed for 1 November. On its face, therefore, given that no application is made in relation to the period commencing 18 October, all that is at stake here is a two week adjournment of the trial.

3 The application is made by Mr Marsden in person. The circumstances in which that comes about can be summarised as consequential to Orders made on 18 August 1999, namely yesterday afternoon, by the Court of Appeal. Those orders were:

"1. Subject to orders 2 and 3, grant leave to appeal.

2. Stay execution of orders 1 to 3 made by Levine J on 28 June 1999 until further order or disposal of the appeal.

3. Subject to the opponent's solicitor's undertaking to repay the money if the Court of Appeal should set aside the said orders of Levine J, order the claimant to pay $240,000 on account of the opponents' entitlement to costs under those orders, such payment to be amenable to an order for restitution in the event that those orders are set aside. Payment is to be made within 14 days.

4. Subject to further order, direct that the hearing of the appeal stand over until the conclusion of the trial.

Reynolds SC announced that his instructing solicitor would not give the undertaking. Later in the President's chambers, the President explained to Reynolds SC and Nicholas QC that the undertaking referred to is that discussed in Barrs v Crossman & Prichard (1897) AC 172."

4 The material I have just recited is from a document, copies of which will be provided to the bar table, provided to me from the chambers of the President during the course of the adjournment.

5 Consequent upon the plaintiff's solicitor not giving the undertaking, the retaining by Mr Marsden of Mr Potter and his firm has come to an end and, in due course, the appropriate documentation will be filed in the registry.

6 With respect to the fixture commencing on 18 October, I am informed by Mr Marsden that Mr Reynolds S.C. has agreed to appear for him in relation to outstanding interlocutory matters on a pro bono basis. It is in relation to the trial, as I understand it, that Mr Marsden has been unable to obtain counsel. In the event that the application to adjourn the trial for two weeks is granted, I am informed by Mr Marsden that either he will have counsel or he will proceed to act for himself.

7 On 5 May 1998 I ordered expedition of these proceedings. On 18 September 1998 I made orders fixing the dates for the commencement of the proceedings. On page 5 of my judgment of that date (DLJ 4) I stated something which historically must now be regarded as one of the most misconceived judicial utterances in the context of defamation litigation. What I said was:

"These cases are fixed for the second week of term to enable the first week to be available to tie up any interlocutory loose ends."

8 As at 28 June 1999 the interlocutory loose ends were tidied up to the extent that the substantive application by the defendant for leave to amend its defence had been disposed of. Recent communications with the solicitors hitherto on the record indicate at least 13 other interlocutory loose ends to be tidied up.

9 Be all that as it may, nothing, in my view, has happened in the extraordinary course of this case to derogate from the anxiety of the plaintiff to pursue vindication or, presumably, the desire in the defendant to vindicate its exercise of free speech.

10 What confronts me this morning is an application to adjourn for two weeks.

11 The trial began in the second week of term 1999 and it must not be forgotten the jury has already found the plaintiff to have been defamed by the defendant.

12 It is argued for the defendant that the plaintiff's application should not succeed in the light of there being advanced no real or compelling reason for granting it. The defendant, and I accept this to be the case, proposes to call a great number of witnesses, some under its direct control, others strangers to it, in respect of whom, no doubt, arrangements have been made throughout the year so far for their attendance to give testimony at the appropriate time.

13 I understand the position of the plaintiff to be, no doubt, that similar arrangements have been made in relation to witnesses on the issue of reputation, in respect of which the number of 30 odd has been mentioned from time to time and, presumably, witnesses in defence of the case to be brought by the defendant on justification of the imputations found by the jury.

14 One would think that little difficulty should be encountered in disposing of the issue of whether or not the resumption of this trial should be delayed by two weeks. There is, however, lurking in the forensic background a question of the structure of the trial upon its resumption. That the structure of the trial would be the subject of an application by the plaintiff has been foreshadowed for some time. The essence of the restructuring, as I understand it, and have understood it, is to bring about the situation whereby the plaintiff would not be cross-examined on the issue of truth until after the defendant had presented its case on that issue. The suggestion has been made, from time to time that, in effect, the plaintiff is in the position of an accused, or a defendant, in a criminal prosecution and that he should not suffer any disadvantage in the light of that by reason of this being a civil action for damages for defamation.

15 I have mentioned this matter lurking in the background because it has been stated by Mr Marsden that that still is his position. The defendant, through Mr Nicholas Q.C., has stated its position that the normal flow of this case should not be disrupted by an adjournment which may be perceived in reality as seeking to achieve the end to which I have referred, the more so when any application has not yet been made by the plaintiff.

16 As I indicated during the course of argument this morning, the first interlocutory matter that will be dealt with on 18 October is any application the plaintiff wishes to make in relation to the structure of the trial. I think it fair to observe, at this stage, that there are three options:

1. the plaintiff technically could close his case now;

2. the plaintiff can run the case in the normal way that a defamation action or a civil action would be run, or

3. make an application of the kind to which I have referred.

17 It is the uncertainty in relation to the structure of the trial that I feel underlies the rigorous opposition by the defendant to the relief the plaintiff seeks this morning. No doubt there are tactical and forensic considerations close to the defendant's litigious heart that also drive its attitude towards this application.

18 Mr Marsden, upon the withdrawal of Mr Potter, his solicitor, made an impassioned and emotional address to the court, raising matters, he says, that have affected him personally in this litigation and that have affected his capacity to retain lawyers and the like. I have noted (and it has been recorded) what he has said.

19 In the light of the history of this litigation, which goes back to 1995, and what I know of it by reason of my connection with it since that time, and not intending anything personal in relation to Mr Marsden, in the light of what happened yesterday in the Court of Appeal and what has happened in the course of this year, that a person in the position of Mr Marsden should be moved to make the kind of statement he made this morning comes as no surprise to me and should come as no surprise to anyone.

20 It is absolutely essential that this litigation reach finality, a state or event which I understand to be sought by each side. But, to put it bluntly, I do not see how the deferring, by two weeks, of the resumption of this trial in November would adversely affect the interests of the defendant and can adversely affect the administration of the list of this Court again to put it bluntly, I cannot see it otherwise than being patently clear that fairness and justice requires that Mr Marsden be given these two weeks.

21 It must be made clear, however, that there is no room for manoeuvre in relation to the period set aside from 18 October to deal with outstanding interlocutory matters. It must also be made clear that upon the resumption of this trial on 15 November it will proceed, with Mr Marsden acting for himself or with counsel.

22 I cannot guess as to what the outcome of any application, if an application is made to restructure the trial, will be, nor would it be prudent to prognosticate on the effect of any such outcome upon the trial which will recommence on 15 November.

23 The plaintiff has had the benefit, if I might say so, of legal representation of the highest order. Indeed, the Court, in the conduct of this litigation, as far as both sides are concerned, has had the benefit of legal representation of the highest order. Appreciating the realities to which Mr Marsden referred in his address to the Court about the horrendous costs that are incurred in litigation of this kind, I can do no more than state my fervent hope that the plaintiff will be in a position to have representation, first, and secondly, hopefully representation of quality and experience which the demands of this litigation will require.

24 I am sure that Mr Marsden, by reason of his lengthy experience as a practitioner and officer of this Court, will understand that if it comes about that he appears in person, he will obtain no advantage thereby; he will be bound by the same rules as apply to legal practitioners (and he happens to be one). But the stakes in this case are high and its efficient conduct will be served if representation can be obtained. As I have said, if at 15 November there is not any legal representation, the trial will still go on.

25 A direction that I will now give is that on 18 October the plaintiff must move the Court for any orders sought that affect the structure of the trial and, on that occasion, in accordance with the practice hitherto adopted, a Notice of Motion will have to be ready to be filed, a copy should be sent to the defendant's solicitors before hand, together with any affidavit evidence upon which reliance will be placed. That application, if it is to be made, could by its resolution, of course, have immense impact upon the balance of the conduct of the trial.

26 I make no comment as to the 12 or 13 other outstanding matters. Directions have already been given as to the exchange of witness lists.

27 PLAINTIFF: That's only in relation to damages, as I understand.

28 HIS HONOUR: I suppose there may be further argument about discovery, about documents, even about particulars and the like, but the point has been reached where the preoccupation with paper must be reined in, to say the least, and attention turned to the people who are going to be involved in this trial.

29 There is one other thing it is desirable to make clear, at this stage, absent any decision upon any application the plaintiff makes on 18 October. As far as this Court is concerned the time available for the continuation of the trial is from 15 November to the end of term and it will recommence in the normal course of events on 31 January 2000, the first day of term next year.

30 I assume that Mr Marsden will have the benefit of a record of orders made.

31 The granting of the adjournment arises acutely from the situation that developed yesterday afternoon and this morning where the status of the plaintiff, vis-a-vis his lawyers, and thus the status of the plaintiff as the litigant in opposition to the defendant reached a point to which the roller coaster history of this matter in 1999 almost rendered arrival inevitable.

32 The circumstances of the whole of this case are peculiar. The circumstances attending the plaintiff personally, arising yesterday, are, of course, very recent and I have viewed them in the context of matters raised by his former solicitors as to problems with representation. As I have said, just looking at this matter this morning, in the light of those developments I cannot see any basis, in the fairness and justice, to refuse the application, and I grant it.

33 The question of costs is reserved.

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LAST UPDATED: 26/08/1999