Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 66

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 66 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 18 February 2000 JUDGMENT DATE : 18 February 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

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

M Hall (Plaintiff) COUNSEL : R Stitt Q.C. (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Interlocutory application - cross-examination at large on issues in the trial - not permitted - T4098 DECISION : See paragraph 10

DLJT: 92 (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

FRIDAY 18 FEBRUARY 2000

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (Interlocutory application - cross-examination at large on issues in the trial - not permitted - T4098)

1 HIS HONOUR: Earlier this morning, I ruled in relation to paragraphs 2 to 7 of Mr Potter's affidavit of 14 February 2000 (NSWSC 65: DLJT: 91). The contents of those paragraphs are not in evidence as a result of that ruling. All that is in evidence is the matter referred to in paragraph 1: namely, that Mr Potter is the solicitor for the plaintiff in these proceedings. Mr Potter's swearing to that fact arises in the application by the plaintiff to preclude inspection of a document by reason of an asserted claim for privilege. 2 Mr Potter is now being cross-examined by Mr Stitt for the defendant. Objection has been taken to the question: "Would you regard it as acceptable to persuade a witness to change his evidence." 3 It is contended for the defendant that Mr Potter can be cross-examined at large and not limited to the matters contained in his affidavit. Reliance is placed on two authorities referred to in paragraph 38.9.4 at page 2816 of the Practice. 4 I do not consider that the cases there referred to (Muir & Ors v Harper & Ors (1900) 25 VLR 535; Keogh v Dalgety & Co Ltd (1917) 17 SR (NSW) 573) provide authority for cross-examination, in an interlocutory application, "at large" beyond the issues of the application. 5 Several observations are to be made. First, it is to be repeated that this is an interlocutory application seeking to preclude inspection by the defendant of a document asserted by the plaintiff to be privileged. Second, Mr Potter is giving oral evidence in that application: trite though it is to say, not in the trial. Third, cross-examination at large on any matter that may, that is or could be relevant to any issue in the trial is, at the very least, absent clarification, of no relevance to the determination of whether the defendant should be precluded from inspecting this document on the basis of some claim for privilege by the plaintiff. 6 True it is that in the trial particulars which have been delivered relating to a case, the defendant proposes to make as part of its justification plea that the plaintiff has conducted himself, by himself, or through asserted agents, in such a way to give rise to admissions against his interest that would lend support, if established, to the defendant's case. That component of the defendant's case will be proved by the defendant in its case, or, if the situation arises, by evidence available from any case in reply. 7 I do not accept that this is an occasion for cross-examination at large in relation to that component of the defendant's case or any other. Mr Potter, of course, can be cross-examined on matters relevant to what's left of the claim for privilege. He can be cross-examined as to his credit; but even if that exercise was embarked upon, I would not hesitate severely to circumscribe it in the ways provided in the Evidence Act. 8 The Court has very extensive powers in relation to the conduct of litigation (s 76A of the Supreme Court Act, Pt 26 r 1). Those powers should be unreservedly exercised to ensure the efficient conduct of the case. I do not say that those powers can be availed of to exclude evidence; but if there is a proper basis for the exclusion of evidence and the evidence is properly excluded, then those powers can be exercised to avoid time wasting and the like. 9 The question to which objection is taken, on any view of it, is one pregnant with, not merely the possibility, but the intention, to take advantage of the presence in the witness box of the plaintiff's solicitors in an interlocutory matter, to embark upon a wide ranging cross-examination beyond the ambit of the present application. 10 I propose to exclude such questions which are, in reality, reflective of an unfair exploitative position. The question is rejected. ***********