Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 607

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 607 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 3 July 2000 JUDGMENT DATE : 3 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. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On defendant's application for adjournment - unforeseen indisposition of counsel - trial management - T7872 DECISION : See paragraph 12

DLJT: 181 (Ex Tempore - Revised) [2000] NSWSC 607

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

JUSTICE DAVID LEVINE

MONDAY 3 JULY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On defendant's application for adjournment - unforeseen indisposition of counsel - trial management - T7872) 1 HIS HONOUR: An application has been made on behalf of the defendant further to adjourn the hearing of this matter until 10am tomorrow morning. 2 The circumstances in which the application is made are as extraordinary as they are regrettable as they have been unavoidable. It arises from the totally unforeseen indisposition and temporary hospitalisation of Senior Counsel for the defendant. 3 The application is opposed. It is opposed not on any basis that could in any way be sought to be personalised in relation to Mr Stitt Q.C. or his unfortunate position. 4 As I remarked on Thursday when the first intimation of Mr Stitt's position arose, it is desirable that the further conduct of this case be conducted by everyone in the best position that each is able to be. 5 The position of the defence is that the unforeseen indisposition of Mr Stitt threw its organisation for the conduct of the balance of the case into a state of temporary disarray. This is certainly understood by me and I have the impression that the plaintiff is not unsympathetic to that situation having arisen. 6 What is acknowledged by the defendant is the inconvenience caused to the plaintiff's camp by reason of these events, in terms of the plaintiff being unable in the circumstances efficiently to organise the attendance of his witnesses. 7 It has been made clear that in the event of the adjournment being granted, the defendant will be in a position tomorrow to recommence its dealing with the plaintiff's witnesses. I frankly cannot see how the interests of either side will be served by delays after the calling of evidence-in-chief to enable ad hoc preparation of cross-examination by counsel who, in the circumstances hitherto, was not going to perform that task when, on the other hand, the balance of the day will enable more efficient preparation by whomsoever is to cross-examine the next witnesses of the plaintiff. 8 I propose to accede to the application, acknowledging both the extraordinary and unforeseen position in which the defendant found itself and the consequential inconvenience to the presentation of the plaintiff's case over the last two or so hearing days. 9 It would seem to me, subject to anything counsel wish to say about specific matters that are likely to occur in the future, that in relation to tomorrow, the plaintiff confirms with the defendant as soon as possible today the identity of witnesses to be called. During the course of today, if possible, the defendant should indicate to the plaintiff when it can be anticipated that Mr Stitt will be in a position to conclude his cross-examination of Mrs Kirk, because she has to come from a long distance. 10 The message certainly can go out to the three potential witnesses that have been on standby for the plaintiff that they individually and collectively as witnesses have the Court's sympathy and understanding for the inconvenience caused to them but that inconvenience in the end, I am satisfied, can be laid at the feet of no-one in terms of fault or blame. 11 Subject to one and/or possibly two interruptive matters, (that is matters outside the anticipated course of evidence), the best endeavours should be made between the parties to identify forthcoming witnesses, when they will be expected to be called, how many on a given day will be organised and, ideally, (and this seems to have been done), the general subject matter of their testimony. 12 In relation, therefore, to the defendant's application, I stand the further hearing over to 10am tomorrow. ***********