Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 169

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 169 revised - 17/03/2000 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 13 March 2000 JUDGMENT DATE : 16 March 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

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

I Barker Q.C. M R Hall (Plaintiff) COUNSEL : R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On defendant's application to amend case on justification re Paul Fraser CASES CITED : State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146 DECISION : See paragraph 52

DLJT: 118 CAV [2000] NSWSC 169

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

JUSTICE DAVID LEVINE

THURSDAY 16 MARCH 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant)

JUDGMENT (On Defendant's application to amend case on justification re Paul Fraser) 1 By Notice of Motion delivered to the solicitors for the plaintiff on 7 February 2000, the defendant seeks leave to amend its case on justification to rely on a set of particulars of truth in relation to one Paul Fraser. The particulars of the case in respect of which leave is sought are set out in annexure A to the Notice of Motion. 2 I will consider the Notice of Motion to have been filed in Court on 18 February 2000, the date on which the affidavit of Mr Angus was handed up. 3 Mr Angus in his affidavit of 18 February 2000 deposes to the defendant having interviewed Mr Fraser on 21 May 1996. A transcript of that interview is annexure A to the affidavit. The information as to the fact of the interview was conveyed to Mr Angus on 15 October 1996. 4 On 29 May 1997 Mr Angus became aware that Mr Fraser had initiated civil proceedings in this Court against Mr Marsden for damages for sexual assault. 5 From October 1996 until November 1999 it was Mr Angus' view that it was "unlikely" that Mr Fraser would be called as a witness by the defendant in these proceedings. 6 Following the evidence of Dr Dent called by the plaintiff on the issue of damages on 25 and 29 November 1999, Mr Angus deposes to senior counsel advising that a "meeting with Mr Fraser" should be arranged. 7 Exhibit "IRA1" is made up of a voluminous amount of material constituted by the transcript of the evidence given by Dr Dent, the transcript of the evidence given by Mr Adam and Mr Baird in these proceedings, the two MFI's marked during Dr Dent's evidence (MFI's 21 & 22) and a bundle of medical reports said to have been provided by the plaintiff to the defendant's legal advisers in Court shortly after Dr Dent gave evidence on 25 November 1999. 8 A meeting was arranged with Mr Fraser on 13 December 1999. It did not take place as Mr Fraser's solicitor was absent. 9 Paragraph 7 of Mr Angus' affidavit sets out the steps thereafter taken in relation to the organisation of a conference with Mr Fraser which, according to paragraph 8, took place on 28 January this year. It was following that conference that senior counsel for the defendant apparently advised that Mr Fraser should be called as a witness in these proceedings. 10 In anticipation of the application for leave to amend a Notice to Produce was delivered by the solicitors for the plaintiff to the solicitors for the defendant. A call was made upon that Notice, a claim for privilege was advanced and it was upheld by me on 13 March 2000 (NSWSC 158: DLJT 113). 11 In the meantime, on 25 January this year a document described as "Particulars of Truth (Admissions) Pt 67 r 18" was delivered by the solicitors for the defendant to the solicitors for the plaintiff. Particular 17 of that document is in the following terms: "1. Paul Fraser commenced proceedings in the Supreme Court of NSW on or about 29 May 1997. In the proceedings Mr Fraser seeks damages for harm alleged to have been suffered by him as a result of a number of sexual assaults by the plaintiff commencing when Mr Fraser was 8 years old. 2. Mr Fraser sought and was granted legal aid to fund the proceedings brought against the plaintiff. 3. The plaintiff approached an officer of the Legal Aid Commission and procured that officer to revoke the grant of legal aid to Mr Fraser. The officer improperly revoked the grant of legal aid previously made to Mr Fraser at the behest of the plaintiff". 12 These particulars were the subject of a ruling in relation to admissibility on 3 February 2000 (NSWSC 24: DLJT 82). 13 On the same date, 25 January 2000, I note from paragraph 7(m) of Mr Angus' affidavit that Mr Fraser apparently telephoned Mallesons Stephen Jaques and confirmed receipt of a subpoena served on him by the defendant. 14 I pause here to remark as follows: at the time that the subpoena on Mr Fraser was served, the particulars of admission by conduct were apparently irrelevant. Mr Fraser was still not "likely" to be called as a witness for the defendant. Those particulars allege conduct by the plaintiff in relation to another set of proceedings unconnected with the present trial. It was submitted by Mr Barker that those particulars did not and still do not have any relevance to any issue in the trial absent Mr Fraser being a witness for the defendant in its case on truth. The assertion in cross-examination by Mr Angus that it was his view that notwithstanding the apparent irrelevance, the particulars could "stand" together with the other particulars in relation to other witnesses in fact forming part of the defendant's case (save for Dr Dent) was not developed in re-examination nor was it the subject of submissions. 15 It is important also to note at this stage that Exhibit A to Mr Angus' affidavit, the transcript of the interview in May 1996, brought to his attention in October of that year, refers to three incidents which have been described in short hand as the "Pump House incident," the "Monaro incident" and the "Grand Final incident". There is a stark lack of coincidence between the narration by Mr Fraser in the course of his interview with Channel 7 in May 1996 and the particulars of the defendant's proposed case (part of annexure E to Mr Angus' affidavit). Shortly stated the stark difference is constituted by the allegation in the particulars of the proposed case on truth of an act that would fall within "sexual intercourse", the term used in the current set of imputations, both the plaintiff's imputations and the defendant's contextual imputations, and the absence of reference to any such conduct in the May 1996 interview. 16 It was Mr Angus' position, which I accept as reflecting his honestly held view, that the information in the 1996 interview, whilst credible, did not fall within any of the then existing pleaded imputations (all of which made reference to "sexual intercourse" save for one of the defendant's then contextual imputations that involved the use of the word "pederast"). 17 This stark difference is to be born in mind in the context candidly acknowledged by Mr Angus in his evidence that the defendant has no statement from Mr Fraser. It thus appears that there is no source, on the evidence available to me in this application, for the particulars containing the stark difference in account. 18 It appears quite clear that Mr Angus at all times has sought to be "careful". However, no signed statement from Mr Fraser was obtained nor has one been sought to be obtained and one is not in the possession of the defendant. 19 To return to a chronology: Mr Angus' evidence discloses that in May 1997 or at about that time, he had seen at least part of the Statement of Claim in the proceedings initiated by Mr Fraser in the Common Law Division which informed him of an allegation of the performance of oral sex (T4788.45). 20 In February 1999 it is acknowledged that the Court file in Mr Fraser's action was available for inspection and that the defendant knew precisely what the allegations were made in those pleadings. At that time Mr Angus says that notwithstanding what was in the Statement of Claim it was still his view that it was "unlikely" that the defendant would call Mr Fraser as a witness because of the conflict between what is in the Statement of Claim and what is in the interview with Mr Davis. A conflict that still exists Mr Angus acknowledges. Mr Angus believes that the allegations constituted as I understand it by the particulars (the source of which is not in any proof by Mr Fraser), are credible. 21 The point is reached in the light of Mr Angus' evidence that the defendant had information received both in 1997 and 1999 and "recently" (the last I assume after the conference on 28 January 2000) but notwithstanding the divergence between the particulars and the interview, but taking into account Mr Angus' belief in the credibility of Mr Fraser's position, it was appropriate then to seek leave of the Court to amend and give the plaintiff notice thereof. 22 The defendant, as I have said, has asserted privilege which was upheld and indeed, during the course of cross-examination, privilege was asserted when Mr Angus was questioned in relation to the admission by conduct particulars conceding that the defendant had not even inspected the Legal Aid file before particularising its allegation. Privilege was claimed in respect of information that it had otherwise than from the Legal Aid file. 23 Mr Angus conceded that particulars, similar in substance to those set out in the document attached to the Notice of Motion could have been supplied at the beginning of 1999, had he obtained that information from Mr Fraser. 24 Mr Michael Lee, a Partner of Corrs Chambers Westgarth and solicitor for Mr Marsden in the Fraser action swore an affidavit on 6 March. 25 The plaintiff Mr Marsden became aware of the allegations made by Mr Fraser in or about June 1997. 26 The current status of Mr Fraser's action against Mr Marsden is that on 1 February 2000 Master Harrison heard Mr Fraser's application for leave to commence his proceedings (an extension of time under the Limitations Act) and that as at 13 March 2000 judgment on that application had not been delivered. 27 In relation to those proceedings it was Mr Lee's view that it would be necessary, prior to any substantive hearing, for the entirety of what are described as "subpoena material" to be examined, to undertake further inquiries, interview witnesses including five specified nuns and to review psychiatric evidence provided in those proceedings and interview other persons and bodies as set out in paragraph 11 of his affidavit. 28 Mr Marsden was not prepared to waive privilege, I add, vis-a-vis to Mr Lee, during his cross-examination, concerning the necessity to interview representatives of Campbelltown Council in connection with the Fraser action. 29 Mr Lee is of the view that if leave were granted in this case, Mr Marsden's "case in reply" may take two to three weeks. 30 Mr Lee admitted that he had read the particulars provided by Channel 7 to Mr Marsden in this litigation out of curiosity in the light of information he apparently had in connection with the Limitation application in the Fraser proceedings, the verified Statement of Claim and affidavits. He did not analyse the particulars closely. 31 Mr Lee fairly said in cross-examination that the further inquiries identified by him in his affidavit in relation to Mr Fraser's Common Law proceedings "axiomatically" would be necessary (or substantially the same inquiries) to deal with the particulars advanced in these proceedings. 32 I am of the view that no other reasonable conclusion could be reached than that what Mr Lee said in regard to the inquiries that would have to be made in relation to the Fraser action in which he is solicitor for Mr Marsden, would be substantially the same as inquiries that the plaintiff would have to make in the current action. 33 Scant attention was paid to "IRA1" during the course of evidence and submissions. I have perused the material. Insofar as it consists of the transcript of the evidence of Mr Adam and Mr Baird who were called in the plaintiff's case on damages, reference is made to the plaintiff being distressed by his being acquainted with the fact that Mr Fraser had instituted proceedings. This was in 1997. The other material in the folder is the lengthy evidence given by Dr Dent and the medical reports which the plaintiff provided to the defendant during the course of Dr Dent's evidence. The circumstances of this happening are unknown to me or, if they were known to me, I was not reminded of them. I add that the volume also contains a series of statutory declarations by Mr Adam and others with what looks to be a lot of "promotional material" for Mr Marsden. 34 Without the benefit of submissions I can only conclude that this material constitutes some evidence of the plaintiff knowing of the fact of the proceedings instituted against him by Mr Fraser and in the context of those proceedings, having had access to psychiatric reports which I can only infer were tendered as part of the Limitation application. 35 Further than that I do not consider it reasonable to go; it is not in issue that the proceedings were commenced nor is it in issue that Mr Marsden was aware of them, nor could it be in issue that there is evidence that he was distressed by the fact of them. 36 What is clear from all the evidence before me in the current amendment application is that Mr Fraser formed no part of the defendant's case against Mr Marsden until the particulars were delivered on 25 January. Thereafter the particulars had no apparent relevance in any event. There was no basis for the plaintiff in the context of the defamation action taking any step at all to meet an irrelevant and otherwise non-existent case against him. Further, it is the evidence that in relation to Mr Fraser's proceedings themselves the point has been reached where the learned Master has reserved her decision as to whether or not, to put it shortly, Mr Fraser has an action against Mr Marsden at all. 37 On 23 June 1999 I delivered judgment on the defendant's substantive Amendment Application (NSWSC 619: DLJT 44) which (as Mr Angus conceded in cross-examination), markedly increased the ambit of the defendant's case on justification. In my judgment I dealt with the relevant principles and by reference to them Mr Stitt Q.C. submitted that a case for the exercise of my discretion in favour of his client had been established. 38 The defendant itself, via Mr McEvoy, was in possession of information in relation to Mr Fraser in May 1996 which in circumstances which are not explained only came to the attention of the defendant's solicitors on 15 October 1996. At that time Mr Angus formed the view in a responsible way that the information contained in the transcript of interview did not provide material that could be relied upon in defence of the then existing imputations. 39 In 1997 Mr Angus became aware of the Statement of Claim the details of which became known to him in 1999 (February). It is then submitted that it was during the course of the evidence of Dr Dent in November 1999 by reference to what are described by counsel for the defendant as the two "infamous" reports, that "there was a factual basis, perhaps the extent of which at that stage was unknown, upon which Fraser's allegations could be founded" ("IRA1"). 40 Insofar as it is contended that this material provided a "factual basis" over and above any evidence it provides of Mr Marsden's distress at having been sued by Mr Fraser (see the evidence of Mr Adam and Mr Baird), I am at a loss to understand. The subject matter of the distress of Mr Marsden at the proceedings brought against him by Mr Fraser was raised in cross-examination of Dr Dent and other witnesses for the plaintiff clearly then, to my mind, on the issue of "causation". 41 The proposition advanced for the defendant, whatever precisely it means, has to be reconciled with Mr Angus' acknowledgment that in 1997, had the defendant obtained information from Mr Fraser, particulars similar in substance to those now sought to be relied upon could in fact have been provided. The proposition has also to be considered in the light of the position of the defendant that the only evidence in support of its late amendment application in terms of the information available to it is the transcript of the interview from May 1996 and a set of particulars the source of which is not disclosed by the evidence before me, which particulars contain matters in stark divergence from the information available to the defendant in May 1996. 42 It is contended that the defendant will be prejudiced if the amendment is not allowed in that it is asserted that there is available to it credible evidence on a matter of critical relevance to the issues in the trial. In other words the defendant wants an additional witness. This is not the situation that applied in that lengthy application that was determined by my judgment of 23 June 1999 the outcome of which markedly increased the ambit of the defence case. 43 It is said that the plaintiff will not be prejudiced. This submission has to be viewed in the light of the evidence that in relation to the action brought by Mr Fraser it has not even yet been found to be viable and in relation to the current action, until the service of the Notice of Motion and provision of particulars appended to it, Mr Fraser played no relevant part in these proceedings. The evidence before me discloses really no more than that Mr Marsden, not surprisingly, was aware of the fact that he had been sued in 1997 by Mr Fraser and that he was distressed by that fact. The only additional material which as I have indicated above I accept, is the evidence of Mr Lee as to what would be involved for the plaintiff thoroughly to investigate this new case involving the gravest of allegations of events the earliest of which took place 33 years ago, so it is said. There has been no obligation on the plaintiff to do anything in relation to these inchoate claims. 44 No step was taken by the defendant further to investigate that which I accept Mr Angus believed to be credible from October 1996 until the end November 1999 when apparently counsel advised that a "meeting should be arranged with Mr Fraser". Steps in that regard were not taken until 13 December 1999 (well into the plaintiff's case) and the application did not crystallise until early February 1999 after the commencement of the defendant's case on truth. 45 That defence case itself having markedly been increased by the June 1999 ruling, has been shown to have been of some substance in the sense of the quantum of evidence available to the defendant and already called. In that context the asserted prejudice to the defendant, when measured, is by no means great. 46 I add that Mr Fraser does not fall within a category of witness which has from time to time been described as one "coming out of the woodwork" by reason especially, for example, of publicity attendant upon the presentation of the defence case. He has been available to the defendant since May 1996 and to the defendant's solicitors since October 1996, or, at least later, since 1997 when the defendant became aware that Mr Fraser had embarked upon his own litigation against Mr Marsden. 47 Reference was made in the course of submissions to decision of the High Court in State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146 and the statements of principle by their Honours particularly Kirby J. This is, of course, not a question of an application for an amendment to be considered in a context of "list management" or "case management," or an amendment sought well before the commencement of the hearing. A context is one that I have hitherto described as "trial in progress". The dimensions of the trial in progress (since February 1999) are notorious. The resources being expended by both parties as evidenced by the material already before the Court must be described as "immense". 48 I accept, for the plaintiff, that the very nature of the allegations going back 33 years give rise to a presumption of some prejudice. I accept, for the plaintiff, the evidence of Mr Lee as to the kind of work which the plaintiff would now have to do to meet in effect the defendant being entitled to call an additional witness to prove one additional component of a very substantial existing case in circumstances where the defendant had made no inquiry until November/December 1999. 49 When it was submitted by Mr Barker Q.C. that the "strain" on Mr Marsden as a personal litigant would be immense, it was stated by Mr Stitt that there is not any evidence of that fact at all. There is no evidence on affidavit or otherwise that the allowing of this amendment would cause "strain". But it would be unrealistic for me as the trial judge who has observed the evolution of this extraordinary piece of litigation over the last year (at least), to ignore what common sense compels, namely the imposition of preparatory and forensic "strain" that would be involved in permitting this defendant, in the light of the history of its approach to this matter, to litigate the new issue. 50 Mr Barker stated by reference to the transcript of the proceedings of 3 February 2000 (T3618) this proposed amendment was "dropped on" the plaintiff. None of the evidence as to what the defendant did before February 2000 following the initial disclosure to it in May 1996 and none of the evidence led since that time and in support of this application (which evidence, it must be stressed, does not even include a proof of evidence by Mr Fraser because one has not even been sought from him even in conference, so it appears), persuades me that my discretion should be exercised in favour of the defendant. 51 All the circumstances exposed by the evidence compel the exercise of my discretion against the defendant making in the way that it has, in the light of the history that has attended its knowledge, so late an amendment during the course of this trial being in progress in the defendant's own case. I am of the view that no adjournment nor order for costs in favour of the plaintiff could outweigh the prejudice to him, at this stage in the trial, of allowing the defendant's amendment sought in the historical and evidentiary circumstances to which I have referred. 52 The Motion is dismissed with costs. ***********