Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 652

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 652 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 5 July 2000 JUDGMENT DATE : 7 July 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J at 1

M R Hall (Plaintiff) COUNSEL : R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Application by plaintiff to re-open evidence in chief of Mrs Kirk - T8005 DECISION : See paragraph 11

DLJT: 187 CAV [2000] NSWSC 652

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

FRIDAY 7 JULY 2000

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (Application by plaintiff to re-open evidence in chief of Mrs Kirk - T8005) 1 On 5 July 2000 Mr Hall of Counsel for the plaintiff sought leave to re-open the evidence in chief of Mrs Kirk, Mr Marsden's private secretary. The subject matter of the evidence sought to be led was that the plaintiff had a broken leg on dates relevant to the evidence of Mr Stevens. 2 In summary, Mr Stevens says that he saw Mr Marsden at Campbelltown Court (there is at present an issue as to whether it was Campbelltown Local Court or Campbelltown District Court). This led to an examination of material pointing to the occasions on which Mr Stevens was at Campbelltown Court in connection with certain criminal matters (Exhibits AZ and 46). 3 Mr Marsden gave evidence in chief commencing T6795 as to whether or not he was at Campbelltown Court by reference to diary entries. He was cross-examined at length by reference to such diaries as were available to the defendant on the issue of whether the diaries were capable in any way of evidencing the presence or absence of Mr Marsden at or from Campbelltown Court. 4 At T6797.5 Mr Marsden gave the following evidence in chief: "Q. Perhaps I should have asked you this, whatever the diary entries disclose, do you say you were not at Campbelltown District Court or Local Court on the dates I read to you concerning Stevens? A. I was not there". 5 Mrs Kirk was cross-examined at length in reference to diary material on the issue of her understanding of that material in relation to what it disclosed as to the plaintiff's presence at or absence from Campbelltown Court. 6 At no time prior to the making of the application by Mr Hall had the plaintiff, and there was certainly an abundance of opportunity, given any evidence as to any physical disability that may be relevant to the issue of whether or not he was at Campbelltown Court on the relevant dates. 7 The structure of the cross-examination of Mr Marsden, the position taken by the plaintiff in relation to Mr Stevens and as instanced by the above extract from his evidence in chief is that he was not there. As I have said there was no suggestion about this area of evidence up until the conclusion of the cross-examination of Mrs Kirk. Whilst it is the case that the plaintiff's case in reply was (and is) still open, the question is whether or not Mrs Kirk should be permitted to reopen her evidence in chief at this point of time to, through her, at this stage of her testimony, ventilate this new issue. 8 No further submissions were made by Mr Hall on 6 July. 9 Whether any evidence on this particular subject matter can be lead from any other outstanding witness in the plaintiff's case in reply is another issue. 10 I am not persuaded however, in the light of the history of what I will describe as the "Stevens" component of this trial thus far, that the mechanism of Mrs Kirk being permitted to reopen her evidence in chief is available for the asserted purpose. Up to the point of the application, her evidence in chief and cross-examination were clearly the subject of deliberate structure and at the very least, undue waste of time would result, in my view, from permitting the course the plaintiff seeks. 11 The application is dismissed. ***********