Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 711

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 711 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 19 July 2000 JUDGMENT DATE : 19 July 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J at 1

M R Hall (Plaintiff)

COUNSEL : W H Nicholas Q.C. R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Directions DECISION : See paragraph 9

DLJT: 201 (Ex Tempore - Revised) [2000] NSWSC 711

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

WEDNESDAY 21 JULY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) DIRECTIONS (As to written submissions - T8443)

1 HIS HONOUR: The matter for determination is the directions as to delivery of written submissions. In this regard, I have received communications from the solicitors for each side enclosing proposed timetables. 2 That which accompanied the letter from Phillips Fox dated 13 July on behalf of the plaintiff on its face was an unreasonably "tight" timetable. 3 That which was provided by the defendant's solicitors Mallesons attached to a letter dated 11 July was one which, if adopted, would be unduly generous. 4 Prior to today, I had e-mailed to the solicitors for the parties a proposed timetable suggested by myself to which I will turn shortly. 5 Mr Hall for the plaintiff raised five matters which he invited me to take into account in fixing a "tight" timetable. The first was the requirement of expedition, as I understand it, in the context, first, that this was an expedited trial; that was a long time ago in terms of things generally. Secondly, the context is provided by reason of the plaintiff's medical condition, in respect of which there is evidence of psychiatric counselling by Dr Woods. Reference has been made also to the plaintiff's apparently undergoing treatment from Professor Dwyer. 6 The second matter was the importance of vindication in the context especially where it is said that extensive further damage has been done to the plaintiff's reputation by reason of publicity arising during the trial. Vindication, it is submitted, should be as close as possible to, first, the publication complained of, which is a bit difficult given the lapse of nearly five years, but, secondly and more importantly, it is said, as close as possible to the trial publicity. 7 The third matter is the stress that the plaintiff has undergone in the conduct of the proceedings, mental, physical and emotional. In this context, a comparison is sought to be made with the conduct of a criminal trial in which an accused person undoubtedly undergoes those effects and in which steps are taken conformably with the interests of justice to ensure that the tribunal, usually a jury, is addressed and directed at the conclusion of the evidence with promptitude. 8 The fourth matter referred to was the uneven burden of costs and it was stated the plaintiff is in a perilous situation personally, apparently in the context of the risk of bankruptcy. 9 The fifth matter was the question of representation, Mr Hall indicating that as from the end of August, he will not be available further to participate as counsel in this matter. 10 As I indicated during the course of submissions, the first four matters will be unrealistic to ignore. By saying that, I am not to be taken to be amenable to be swayed by those matters in the absence of evidence. The structure of this case and its history both are notorious. 11 In relation to vindication, obviously in the event of there being a verdict for the plaintiff, it is desirable that it be brought down as soon as possible. The defendant has an equivalent interest if there is to be a verdict in its favour, insofar as it would be entitled to the benefit and, in a case such as this, the public exposure of the finding that its exercise of free speech has been lawful and justified in the context of the tort of defamation. 12 Otherwise, the medical condition and the stress the plaintiff has undergone are no more than factors which reality commands that I note. 13 As to the uneven burden of costs, I suppose reality would command some attention to that proposition and, indeed, to my recollection - and I have not checked the records - there was a substantial issue in the Court of Appeal last year in relation to an order for costs and a sum nearly of a quarter of a million dollars was involved. 14 The fifth matter, the availability of counsel, is one of which I take particular note. Mr Hall has been of great assistance in the course of this trial and I am conscious of his being best placed as counsel for the plaintiff at this time to prepare written submissions. However, the nature of this case is such that, to put it very shortly, the better the submissions, the greater the assistance will be given to me in the task, in due course, of writing the judgment. 15 It will be counterproductive to impose a timetable that, in reality, would have the effect of precluding one or other side, or both, from properly attending to all the various matters that should be the subject of detailed and useful written submissions. 16 The particular problem confronting the plaintiff, in my view, can be accommodated by the plaintiff's right to deliver written submissions on all subjects at any time within the boundaries of the overall timetable I propose to fix. His right to do so does not affect the right in the defendant to file submissions in accordance with the timetable I propose to fix. The defendant can take such time as is allocated by the timetable. The plaintiff can take such time as is allocated by it, or less. 17 Further, I propose to grant liberty to apply in relation to written submissions which I will trust would not be exercised lightly in view of the timetable I propose. 18 I give directions as to the filing of written submissions in accordance with the written document I now hand down to the parties. It is the same document that I sent via e-mail to the solicitors for the parties, adjusting the start date to 19 July. Timetable Written Submissions Party & Issue Date -From Date- Due