Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 172

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 172 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 16 March 2000 JUDGMENT DATE : 16 March 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

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

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 : On plaintiff's application to have recalled the witness Mr Stals - T4835 CASES CITED : Attorney General v Hitchcock (1847) 1 Ex Ch 91 Bickel v John Fairfax & Sons Limited (1981) 2 NSWLR 474 DECISION : See paragraph 20

DLJT: 119 (Ex Tempore - Revised) [2000] NSWSC 172

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

JUSTICE DAVID LEVINE

THURSDAY 16 MARCH 2000

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (On plaintiff's application to have recalled the witness Mr Stals - T4835) 1 HIS HONOUR: Mr Edward Stals was called by the defendant as a witness on the issues of justification and qualified privilege. He gave evidence on 10 and 11 February. His evidence was led by Mr Nicholas Q.C. 2 Mr Stals was cross examined extensively by Mr Barker in relation to a segment of a taped interview for the defendant that dealt with a subject which the witness admitted to be a lie. That subject matter in general terms was a false assertion as to a massive drug deal, its financing and an asserted involvement of the plaintiff. That cross-examination was relevant to issues in the privilege case and, of course, of its very nature to the witness' credit. 3 At the conclusion of his testimony (T3901) Mr Stals was not excused from the obligations imposed upon him by that subpoena which brought him to the court and an application has now been made for the plaintiff to have him recalled for further cross-examination. 4 The basis for the application is made up of two components. The first is that the account about the drugs deal, acknowledged to be a lie when told to the defendant, was also given by the witness in the course of a taped recorded interview by the Royal Commission investigators on 25 September 1995, the transcript of which is exhibit C in this application. The subject matter is dealt with in that exhibit pages 22 to 30. 5 The second basis rests on certain documents produced on subpoena by McCabe Solicitors, (exhibit B on this application) constituted by a letter to that firm from the solicitors for the defendant, dated 12 January 2000 and a document headed "Loan Agreement Draft". 6 In relation to the loan agreement, which on its face deals with the provision of funds to be paid to the witness' solicitors for the specified purpose of filing fees for an appeal to the District Court from the Victim's Compensation Tribunal, the defendant's position is that the agreement was never entered into, it was never consummated by execution or by performance. An analysis of exhibit B discloses an arm's length commercial transaction that never reached fruition. 7 As to the first basis, the statement to the Royal Commission, Mr Stals as I have said was cross-examined at length, (T3868 to 3870 and 3875). It was argued for the defendant that the proposed further cross-examination would go merely to credit and regurgitate and reagitate matters dealt with hitherto. It was argued that whether Mr Stals lied to the Commission (or any number of people) would add nothing to the issue of credibility raised in general by the cross-examination that has already taken place; in particular nothing could be added by reference to the more focused areas on qualified privilege (and indeed credit affecting truth on the justification issue) in the context of an admitted lie in relation to the interview with Channel 7.