New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 477 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 31 May 2000 JUDGMENT DATE : 31 May 2000 JOHN MARSDEN (Plaintiff) PARTIES : v AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J at 1 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 strike out particulars of defence of justification - T6673 DECISION : See paragraph 15 DLJT: 167 (Ex Tempore - Revised) [2000] NSWSC 477 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE WEDNESDAY 31 MAY 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On plaintiff's application to strike out particulars of defence of justification - T6673) 1 HIS HONOUR: By a notice of motion filed in Court on 26 May, the plaintiff seeks to have struck out certain paragraphs of the defendant's Amended Consolidated Particulars of Truth and certain paragraphs of the defendant's Particulars of Truth (Admissions) in each action. 2 Such particulars notify the recipient of the case proposed to be presented by the defendant, but not the evidence to be called in support of that case as particularised. 3 Assuming particulars have not been dealt with on an interlocutory basis as the rules provide (for example, SCR Pt 15 r 26), they serve the purpose of notification of the case the defendant proposes to present and can serve the purpose of circumscribing the ambit of the evidence the defendant calls in its presentation of that case. 4 If evidence is called in support of a case that has been particularised, it is the evidence, and only the evidence, upon which the trial outcome is decided. In that regard, the particulars become irrelevant. 5 If no evidence at all is called in support of a particularised case, there is no evidence of that case. There is no evidence of the case that can be considered in the light of particulars and there is no case that has to be dealt with by the other side. In those circumstances as well, the particulars are irrelevant. 6 The Court, in the end, on this motion is concerned with what might be described as "nothing", that is, there is no evidence of any case in respect of which, as a matter of history, the defendant at one time may have given particulars. No rule has been cited and no precise basis has been advanced for the Court to deal with matters that are now irrelevant, matters of which the Court is not seized by way of the presentation of evidence upon which any ultimate decision might be founded. Insofar as the notice of motion deals with particulars of matters other than Mr Lilburn, the orders are declined. 7 By way of footnote, it not being a matter that has led to my deciding to decline the order, it is to be noted that concern has been expressed as to the nature of what is contained in particulars sought to be struck out and in respect of which no case has been presented. Save for the occasion when the jury was involved in this matter in February of last year, the conduct of this trial has been characterised by one thing that at no stage has any side opened its case. No opening addresses have been made at all, so that one mechanism for placing into the public domain matters of the kind that are of concern to the plaintiff just has not arisen. 8 The second matter is a matter of recollection and I put it no higher than that, again because it is not critical or in any way founded the conclusion to which I came. An order was made after the amendment application on the application of Mr Reynolds of counsel that there be no publication of the particulars then provided. 9 I turn to the component involving Mr Lilburn. He gave evidence-in-chief and was cross-examined in part. The cross-examination concluded upon my discharging the witness from orders requiring his attendance in the circumstances referred to in submissions, particularly in circumstances where I declined to proceed with dealing with the witness by way of contempt and where I did not hear an application that the witness wished to make foreshadowed by the defendant's counsel. 10 Again, the plaintiff has applied to strike out the particulars. The reason being, to put it shortly, because the evidence, such as it was given in complete form by Mr Lilburn in chief, was not fully tested in cross-examination. It is unjust and unfair. It should play no part in this trial, therefore, in effect it should go and the particulars should go with it. 11 To the extent that evidence has been given pro tanto any particulars in respect of which that evidence was given are irrelevant. 12 To the extent that evidence has been given, I am persuaded that the proper approach from the authorities cited by Mr Nicholas, is the preferred sensible and just approach at this stage. 13 I was referred to the judgment of Windeyer J in Estex Clothing Manufacturers Pty Limited v Ellis & Goldstein (1966-67) 116 CLR 354 at 263; his Honour referred to the Chancery practice of the receipt of an affidavit notwithstanding the deponent's death; it is a matter of weight. A like approach in similar circumstances attending affidavit evidence was taken by Young J in Curley v Duff (1985) 2 NSWLR 716. In circumstances where a witness was by reason of a disability unable to continue to give evidence, a discretion as to the further conduct of the trial rested in the trial judge, as there was a requirement for appropriate directions to the jury as to its approach: Reg v Stretton & Ors (1988) 86 Cr. App. R. 7 at 11; (see also Reg v Wyatt (1990) Crim. L. R. 343; Reg v Solomon & Thumbler (1958) 25 WWR 307). 14 The evidence remains on the record. In the end, it will be the subject of submissions as to what weight it should have in the light of all the evidence in the trial. 15 To the extent that evidence has been given by Mr Lilburn on matters foreshadowed in any particulars, that evidence as opposed to the particulars is now there to be dealt with by the plaintiff. The nature of any cross-examination of the plaintiff in his case in reply can only be determined at the appropriate time. The notice of motion is dismissed. *********** Last Modified: 09/26/2000 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.