New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 517 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 6 June 2000 JUDGMENT DATE : 6 June 2000 JOHN MARSDEN (Plaintiff) PARTIES : v AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J at 1 I Barker Q.C. M R Hall (Plaintiff) COUNSEL : W H Nicholas Q.C. R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Re application to reopen plaintiff's case in chief on the issue of damages - T6843 DECISION : See paragraph 13 DLJT: 169 (Ex Tempore - Revised) [2000] NSWSC 517 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE TUESDAY 6 JUNE 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Re application to reopen plaintiff's case in chief on the issue of damages - T6843) 1 HIS HONOUR: The plaintiff's giving evidence in chief in his case in reply, and towards what I understand to be its end, was suspended yesterday. That came about by reason of an application by the plaintiff to reopen his case in chief on the issue of damages. 2 Leave was granted to the plaintiff to file in court the following documents: in the 1995 action a document headed "Consolidated Particulars of Aggravated Damage;" in the 1996 action a document headed "Consolidated Particulars of Aggravated Damage", a document headed "Consolidated Particulars of Aggravated Damage in Respect of Matters after 17 December 1999 and up to 18 May 2000;" and a document headed "Particulars of Malice Relating to the Defendant's Particulars of Truth (Admissions)." 3 The circumstances of that grant of leave generally, and particularly in terms of the reserving of the defendant's position, is set out at T6805.17. The characterisation of the application is set out at T6819 to 20 in a series of questions I asked, and at T6823, in Mr Barker's answers. 4 The circumstances of the plaintiff's application include of course the following: two rulings by me refusing to permit the plaintiff to restructure the presentation of his case, 9 February 1999 (NSWSC 28: DLJT: 4); 26 October 1999 (NSWSC 1061: DLJT: 48); the ruling by me of 14 December 1999, NSWSC 1303 DLJT73 in relation to the precluding of the calling of evidence on aggravated damages, the closure of the plaintiff's case without the plaintiff having given evidence himself, (which is to be taken as a result of a considered and deliberate choice made by him), and the closure of the defence case. 5 First, I am not persuaded by submissions for the plaintiff to change my views expressed in my judgment of 14 December 1999, especially paragraph 4. 6 Secondly, the plaintiff having given no evidence as to his subjective reaction to the fact of being involved in the litigation, there is no case to reopen in respect of either the maintenance of the plea of justification (which of course was in place at the time of the close of the plaintiff's case), or its prosecution, even assuming as to the former, it to be available as a matter going to ordinary compensatory damages. 7 For the purposes of this oral ruling I note the submissions for the plaintiff in relation to Steele v Mirror Newspapers Limited (19974) 2 NSWLR 348; Andrews v John Fairfax & Sons Pty Limited (1990) 2 NSWLR 225; Coyne v Citizen Finance Limited (1990-1991) 172 CLR 211; Clark v Ainsworth (1996) 40 NSWLR 463. I do not decide the interesting point of whether the mere pleading and maintenance of a plea of the kind with which we are concerned can be the subject of ordinary compensatory damages, as distinct from the improper prosecution of it in the aggravated damages sense. 8 Further, as to matters not part of the fact of or conduct of the defence case, what I will call non forensic events - abusive phone calls and the like, again, I have come to the view, no evidence having been given by the plaintiff himself as to any incidents of the publication of the matters complained of causing subjective hurt or reputational damage, that there is no case to reopen, and no case in respect of which there can be said to be called what has been described as "fresh" evidence. 9 The historical context to which I have referred demonstrates that at the closure of the plaintiff's case the structure of the trial then became settled. The defence case is closed. The plaintiff is in his case in reply to that defence case, conformably with that structure, the structure that has formed the conduct of this trial, now in its 164th day. 10 The present exercise is not one to determine the admissibility of particular pieces of evidence, or classes of testimony, but whether the plaintiff should have leave to reopen. I have held that there is no relevant case to reopen. I agree with the submissions of the defendant that the applications constitute in reality an attempt to turn the trial on its head, or to start again. Even if the view was arguable that there was some case to reopen, the interests of justice - bearing in mind the history and structure of the trial - do not compel the exercise of the discretion to permit that reopening sought. See Urban Transport Authority of NSW v Weisser (1991) 28 NSWLR 471. 11 There is a further component to this application. I take it to be an application to amend the plaintiff's case on malice in defeasance of the defendant's privilege defences. After the closure of the defence case it is sought to widely amplify an allegation of improper motive, namely to injure the plaintiff. That motive is to be found, of course, in the relevant servants or agents of the defendant. Events since 25 January 2000 are sought to be relied on for this purpose. 12 Essentially, after the closure of the defence case, the plaintiff seeks to rely on the conduct of that case as establishing, in 1995 and 1996 in the relevant servants and agents of the defendant, that improper motive at the time of the publications complained of. Again taking into account the matters of history and structure of the trial, and especially the closure of the defence case, I simply cannot be persuaded that any component of the interests of justice can be served, let alone questions of trial management, by the granting of leave to amend in that respect. 13 The plaintiff's applications are refused. *********** Last Modified: 09/26/2000 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.