New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 356 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 19 April 1999 JUDGMENT DATE : 19 April 1999 JOHN MARSDEN (Plaintiff) PARTIES : v AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J G Reynolds S.C. (Plaintiff) COUNSEL : W H Nicholas Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On application by defendant to tender of evidence from plaintiff's affidavits in support of application for leave to amend: T1038 ACTS CITED : Evidence Act 1995 (NSW) DECISION : See paragraph 7 DLJT: 34 (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 19 APRIL 1999 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On application by defendant to tender of evidence from plaintiff's affidavits in support of application for leave to amend: T1038) 1 HIS HONOUR: The defendant in its application for leave to amend has tendered the following paragraphs of the following affidavits. The affidavit of Mr MBJ Lee, 1 March 1999, paragraphs 1, 2, 3, 4 and the first sentence of paragraph 5 and annexures A and B; the affidavit of Mr BJ Whittaker, 1 March 1999, paragraphs 1, 2, 4, 7, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19 and annexures B and E; and the whole of the affidavit of Mr W Flynn sworn 2 March 1999. 2 The affidavits were read by the plaintiff on that issue which resulted in my delivery of the judgment on 19 March 1999, on the plaintiff's notice of motion to preclude inspection by the defendant of certain documents, which itself were subject to an appeal to the Court of Appeal which delivered a judgment on 15 April 1999. 3 The position now appears to be in relation to the defendant's application to amend, that the plaintiff contends or will be contending, prejudice with respect to D18 to 25 and argues that, in the light of the generality of the material the subject of the tender, it is irrelevant. The defendant submits the relevance is to be to the question of prejudice, especially as to any asserted need on the part of the plaintiff for further investigation of specific allegations and any lengthy adjournment required therefor. The material is relevant also to the issue of the terms to be imposed on any grant of leave and the reasonableness of any such terms. 4 The nub of the matter as arises from the material tendered, is that since the " Gruzovin" allegations in December 1994 the plaintiff has taken steps, through the resources of three firms of solicitors including his own and the barrister Mr Flynn, to gather evidence and prepare his position in relation to anticipated criminal proceedings, police investigations, the Royal Commission and the two defamation actions. That he has done so the tendered material indicates with clarity. He has done so in the context of his position of denial of allegations of sexual misconduct with underage males in a general sense, and specifically by asserting the falsity of all imputations hitherto pleaded but now, more relevantly, those in fact found by the jury. 5 This appropriate conduct by and for the plaintiff over the last four to five years is available to be relied upon, in my view, to meet the assertion of particular prejudice, and is clearly relevant to the issues enunciated by Mr Nicholas QC. What inferences can be drawn from those matters will be no doubt raised in submissions. What weight will be attached to them will also be a matter for submissions. 6 Equally, however, it must clearly be said that the ultimate admission of this material cannot be taken in any way as circumventing any existing privilege that applies to documents or statements referred to in the respective paragraphs of the affidavits. Insofar as formal objection was taken to questions of form and hearsay, I apply s 190(3) of the Evidence Act to dispense with the application of Pt 3.2 of the that Act, but for the purpose of the determination of the tender only. The tendered material is relevant, notwithstanding its generality, to the determination, by reference to the conduct of the plaintiff by way of preparation of his position of denial generally and the assertion of falsity of the found imputations, to the question of prejudice in regard to D18 to D25, and the terms and reasonableness thereof of any grant of leave. 7 The paragraphs of the respective affidavits, to the tender of which objection has been taken, are admitted. ********** Last Modified: 04/20/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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