New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 52 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 10 February 2000 JUDGMENT DATE : 10 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 : On defendant's application to amend case on justification - refined - T3829 DECISION : See paragraph 26 DLJT: 87 (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 THURSDAY 10 FEBRUARY 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On defendant's application to amend case on justification - refined - T3829) 1 HIS HONOUR: There has been called by the defendant Mr Edward Stals as its fourth witness, whose testimony, as was indicated over the last day or so, will relate to the defence of privilege as well as to the defence of justification. 2 On 26 October 1999 the Amended Second Consolidated Particulars of Truth pursuant to SCR Pt 67 r 18 were delivered. Paragraph 1 particularises the facts, matters and circumstances in relation to Mr Stals on which the defendant proposed to rely with respect to imputation 4 (a) (i) and 4 (c) (i) in the first action, 4 (a) (i) and 4 (b) (i) in the second action, and the contextual imputations pleaded in each action. 3 These particulars provide a date of birth of the witness and state, in subparagraph 2: "From mid 1976, for approximately two months, the plaintiff paid the witness, who was working as a prostitute in Kings Cross and aged 16 at the time, to engage in sexual activities with him." 4 Within that particular there are certain finite components: the witness was working as a prostitute in Kings Cross; the plaintiff paid him to engage in sexual activities. But, more importantly: that occurred for a period of approximately two months from mid 1976 when the witness was aged sixteen. Of course, the expression "mid 1976" is not exact, nor is the expression "approximately two months." The clear import, however, is of a short time frame from a fairly identifiable commencement point involving the witness at a given age. 5 I accept that the defendant's case in relation to this witness was originally particularised consistently in terms of the period, namely two months, but differently in relation to the commencement time: from January 1975. The amended particular was crystallised in a letter dated 10 February 1999 from the defendant's solicitors to the plaintiff's solicitors and has remained on the record in that form to this day, conformably with the Amended Second Consolidated Particulars of Truth delivered in October 1999. That was the case the defendant informed the plaintiff that it proposed to prove by way of evidence for the purposes indicated in the particulars. 6 The witness has been called and has commenced his evidence-in-chief, identifying in his oral evidence, (and by reference to exhibit 24), December 1974 as the time when he left school and the time, as I noted it, when he "wound up" working the streets in Kings Cross as a prostitute. 7 Another time that has been identified in the evidence is the witness' conviction in respect of a charge of buggery on 6 December 1976. 8 He has given evidence that he recalls an occasion when he first met the plaintiff in Fitzroy Gardens at Kings Cross. He has identified it as "some three or four months after I started working in The Cross". He wasn't sure exactly if he was fifteen or fifteen and a half. That evidence would place the first meeting with the plaintiff three or four months after December 1974; that is, in effect, three or four months into 1975. 9 Upon objection being taken to this evidence, the defendant seeks leave to amend its case by changing subparagraph 2 of its particulars and the opening part thereof to read "During the period mid 1975 to 6 December 1976" and to add the assertion that the sexual activities took place on several separate occasions during that period and that during the period the witness was aged fifteen and a half years to sixteen years eight months. 10 It was acknowledged for the defendant, as it fairly must have been acknowledged, that the amendment constitutes a departure from the case hitherto particularised. It is, in my view, a substantial departure from a case restricted to two months from mid 1976 to one of sexual activities taking place over a period of eighteen months. 11 Mr Stals, the witness, and this is not in dispute, played a principal part in the "Witness" program as telecast in May 1996, exhibit B, the video tape, showing him without disguise otherwise than by reference to an assumed name. 12 Mr Stals, it is also acknowledged for the defendant, cannot be characterised as a witness, who has "come out of the wood work" or who might be described as a stranger to the proceedings, someone found after the telecast, on whom reliance would be placed to prove truth. 13 The indications are that he was in the defendant's camp at the time of the telecast under five years ago - and by "in the camp" I mean the defendant had access to him - and presumably has been in the defendant's camp, in the same sense, at least since December last year, at a time when the defendant opposed an application by the plaintiff to adjourn and at a time when the defendant was then prepared to call its case on truth. 14 It also appears to be the position, in relation to Mr Stals, that the plaintiff, and presumably the defendant, has had access, no doubt for some considerable time, at least since last year, to various statements the witness has made to various authorities. Those statements include, as I understand it, what was described in submissions as a statement "taken and made available", that statement having been taken in the course of an interview with solicitors. Access has been had, no doubt by both parties, to exhibit 25, the criminal record of the witness. 15 Assuming, for the purposes of this application, that the material to which Mr Nicholas referred, the statements and so on, make reference to events otherwise than as particularised in October and left in that form until today, it has to be acknowledged that it is the position, so far as the plaintiff is concerned, that until today the case that he came to deal with was two months from mid 1976 when the witness was aged sixteen. 16 Given that Mr Stals has had, at the two points of time to which I have referred, at the time of the telecast and, say, since December 1999, a relationship with the defendant and its legal advisers, and given that there has been available to the defendant, by whatever means, and to the plaintiff, information beyond the particulars, the defendant has not sought until today to amend its case in accordance with that information said to be common to both sides. 17 It is argued for the defendant that the quest for truth would be at least compromised by disallowing this amendment and that, in any event, given that that information has been available to the plaintiff, no real disadvantage, unfairness or prejudice could seriously be argued for that side. 18 Until today the quest for truth was to be embarked upon, as I understand it, in relation to what occurred, for about two months from mid 1976. That quest can still be pursued. 19 In relation to this fourth witness for the defendant, I am not persuaded, by reason of the particulars being on foot and the defendant being in a position to call evidence in relation to that case, that the defendant will, in any way, be shut out from calling evidence in the quest for truth. I am not persuaded that there is no unfairness, no prejudice and no disadvantage to the plaintiff. The very ambit of the amendment to change an approximate period of two months to an approximate period of eighteen months is extraordinary. The plaintiff was entitled to take the view, even possessed of whatever information was contained in statements, that the case he was to be confronted by was that which the defendant had, until this very day, allowed to remain on the record. 20 Reference has been made by Mr Barker for the plaintiff to a document discovered by the defendant (a video tape), in respect of which he asserts that there was perceived a good reason for the defendant confining its case. I can really do no more than note that assertion. No doubt, in due course, that document may well be deployed in evidence. 21 Reference was made by Mr Barker to the plaintiff having made inquiries into one matter which is the subject of evidence to date from Mr Stals, namely his occupation of a room in certain premises in Kings Cross. Inquiries have been made as to that place in terms of the time nominated by the defendant. 22 The events about which Mr Stals was to give evidence, on the case as particularised, are twenty-four years old. In the scheme of things another year making them a quarter of a century old, arguably might not be of significance. In the scheme of things the distant past, as the time when events of this kind are said to have occurred, is in itself not unusual. 23 It is, however, a matter of concern that the defendant seeks to change its case in so substantial a way at so late a time in the history of the litigation, at so late a time after June 1999, when the principal leave to amend was granted, and at so late a time after the witness in respect of the case as particularised has commenced to give his evidence. 24 It seems to me that the point must be reached where the trial Judge says "no". The defendant has had a particularised case since February 1999, a case as particularised relevant, in a critical way, to the widest of the plaintiff's imputations found by the jury, namely that of "eighteen years of age", and thus, by not being permitted to amend, will not be shut out, deprived, of an opportunity to prove truth or in any real sense, in all the history of this case, be unduly, unfairly or unjustly affected. 25 The application for leave to amend is refused. 26 It is a matter of some concern, of course, to everyone that the conduct of the balance of this trial be disciplined. It is desirable that neither side by caught by surprise, in the forensic sense, or in a technical sense, or in any other sense. Enough has been said both by witnesses and counsel as to the defendant's witnesses, who they are and where they come from, to indicate that it might well be the position that the most desirable and proper relationship between the party and its witnesses cannot in all cases be achieved. In relation to the witnesses, no doubt, in accordance with the rules of the profession, conferences are arranged and the like, and, hopefully, in relation to any witness called at any stage on any issue in these proceedings no-one will be surprised, or should be surprised, by a development of the kind with which I have just dealt. *********** 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. 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