New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 54 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 14 February 2000 JUDGMENT DATE : 14 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 application by defendant to amend its case in relation to proposed witness Mr Kinchela - T3914 DECISION : See paragraph 13 DLJT: 89 (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 MONDAY 14 FEBRUARY 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On application by Defendant to amend its case in relation to proposed witness Mr Kinchela -T3914) 1 HIS HONOUR: The defendant seeks leave to amend its case in relation to Mr Kinchela, the next witness to be called. 2 The ambit of the defendant's case, as I understand it, has been on the record in the sense that it was first particularised in May 1995. The relevant particular sought to be amended is that set out in 4(8) in the Amended Second Consolidated Particulars of Truth. 3 The present subparagraph reads: "During 1970, D5 went to the house where the plaintiff was residing on four or five occasions and engaged in anal sex with the plaintiff at that residence." 4 The amendment sought to be made is to substitute for the words "during 1970" the words "during the period from about November 1970 until June 1971," as per MFI 86. 5 The evidence will be that the witness was born on 20 November 1955 and, accordingly, turned 15 on 20 November 1970. In the period originally particularised, he would have been, for the greater part, 14; in the period now particularised, he would be, for the greater part, 15 years of age. The contents of the present particulars to which Mr Nicholas has referred are essentially age, activities and location. The principal change is the period. 6 For the plaintiff, matters have been referred to by Mr Barker that point to vulnerability in the witness, as I understand it, in relation to timing with respect to the plaintiff's house not being habitable in the relevant period originally particularised and, for example, there being no use of a swimming pool at the time at which one of the incidents, as I understand it, was said to have taken place. That is material of no less value for the purposes of cross-examination, on the information I have, as to what will be led from this witness merely by reason of the change of the period. 7 On 10 February, last Thursday, I refused an application by the defendant to amend its case in relation to Mr Stals. That was a situation in which the amendment sought was one that expanded the date. Here it appears to be one of contraction. 8 The situation that applied in relation to the Stals' application and is applicable here is, of course, the fact that the plaintiff has had in his possession statements, including a transcript of the television interview. Whilst that material might inform the plaintiff as to what the proposed witness could say, the plaintiff's position forensically was circumscribed by the case the defendant proposed to make. What the plaintiff might know about the witness's possible testimony is one thing. The case that the defendant proposes to mount against the plaintiff is another. 9 This application, even taking into account the factors in common with the previous one, does not strike me as being of so significant and broad an ambit as to attract the negative approach applied by me to the application on Thursday. 10 Material, as I understand it, is available to the plaintiff to cross-examine this witness. If things develop in the course of examination in-chief that on any fair view could compromise the cross-examination, the appropriate allowance will be made. 11 Any matters, of course, that can be tendered in any case in reply will be dealt with at that stage of the trial. 12 The defendant is forensically "stuck" with the position that it has had a case on the record for five years which it now proposes to change and will be granted leave to change. The significance of that position of the defendant and any embarrassment it causes no doubt will be the subject, if appropriate, of submissions in due course. 13 I am not persuaded in this instance, on what I know of the implications of this amendment application, that the plaintiff would be so prejudiced that the defendant should be deprived of the opportunity to seek to lead this evidence. I grant leave to amend. *********** 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.