Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 36

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 36 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 9 February 2000 JUDGMENT DATE : 9 February 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

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

I Barker Q.C. M Hall (Plaintiff) COUNSEL : R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Admissibility of evidence - relevance - admission by conduct - T3759 DECISION : See paragraph 5

DLJT: 84 (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

WEDNESDAY 9 FEBRUARY 2000

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (Admissibility of evidence - relevance - admission by conduct - T3759)

1 HIS HONOUR: The present witness is one in respect of whom the application to amend, disposed of on 23 June last year (NSWSC 619: DLJT: 44), was not in contention. 2 The directions made on that occasion as to the delivery by the defendant to the plaintiff of proofs of evidence related to the people then described as D 17 to D 24. 3 This strictly can be characterised as a late application to amend. It seems to me, however, that the plaintiff is not surprised in any technical sense, by reason, as I understand it, of the plaintiff independently having had access to material in which reference is made to there being at least more than one occasion of a "threesome", as I would describe it. 4 Further, in the event that the evidence of this witness evolves on this subject matter in a way that requires further time on the part of the plaintiff's counsel to prepare cross-examination, appropriate allowance will be made. Further, of course, without deciding such issue, presently it could hardly be said that in a general forensic sense the plaintiff is disadvantaged by this development. 5 In those circumstances, I am not presently inclined to direct the provision of the proof that the defendant's solicitors obtained from this witness which would otherwise, in my view, be privileged. ***********