Bass v McDonald & TCN Channel Nine Pty Ltd (No.9) [2001] NSWSC 1038

Reported Decision : [2001] NSWSC 1038 [2001] ACL Rep 145 NSW 54

New South Wales Supreme Court

CITATION : Bass v McDonald & TCN Channel Nine Pty Ltd (No.9) [2001] NSWSC 1038 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 16791/90 17 - 19 October 2001 22 & 23 October 2001 HEARING DATE(S) : 25 & 26 October 2001 29 - 31 October 2001 1 & 2 November 2001 JUDGMENT DATE : 21 November 2001

Robin Bass PARTIES : Thomas McDonald TCN Channel Nine Pty Ltd JUDGMENT OF : Sperling J at 1

COUNSEL : Mr T Molomby with Mr R Rasmussen for the Plaintiff Mr B McClintock SC with Mr M Richardson for the Second Defendant SOLICITORS : William Oates Lawyers for the Plaintiff Gilbert & Tobin Lawyers for the Second Defendant CATCHWORDS : Defamation - exemplary damages - amendment to include refused - no question of principle DECISION : See paragraph 1 of the judgment.

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Defamation List Sperling J

Wednesday 21 November 2001

16791/90 Robin Bass v Thomas McDonald & TCN Channel Nine Pty Ltd Judgment (No.9) 1 His Honour: Mr Molomby applied to amend the particulars of damage by introducing a claim for exemplary damages for publication other than in NSW (where exemplary damages are debarred). Particulars of the claim are recorded in a document marked 24 for identification. I refused the application. The following are my reasons for doing so. 2 The application was made in the following circumstances. Before the luncheon adjournment on Wednesday 31 October, the jury was informed by me, on the basis of what I was told by counsel in the absence of the jury, that the oral evidence was complete and that there was only some documentary evidence to be tendered. The jury was absent on Wednesday afternoon and for the whole of Thursday 1 and Friday 2 November, during which time argument was heard and some determinations were made relating to matters that were for me to decide. 3 At 11:30 am on Friday 2 November, which would have been during the morning tea adjournment, notice of the proposed claim for exemplary damages was provided to the defendant's counsel. Argument on this topic was not reached, however, until much later in the day. 4 Counsel for the defendant opposed the application on the following grounds: