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. *********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.