New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 402 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 15 May 2000 JUDGMENT DATE : 15 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 defendant's application to amend case on justification re D18: T6084 DECISION : See paragraph 11 DLJT: 147 (Ex Tempore - Revised) [2000] NSWSC 402 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE MONDAY 15 MAY 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 re D18; T6084) 1 HIS HONOUR: The defendant seeks leave to amend its case on justification with respect to the witness D18. The particulars hitherto on the record are those set out in paragraph 10 of the Amended Second Consolidated Particulars of Truth. Of those particulars I earlier today struck out sub-particular (3). 2 The case foreshadowed in the particulars originally delivered point to an incident occurring in February 1990 as between D18 and the plaintiff. The proposed amendment to that sub-particular (4) would bring it about that the case the defendant seeks to prove is that "in early 1990" the alleged conduct took place. A subsidiary amendment, which is not in contention, is to sub-paragraph (5) as to where precisely in the Regent Hotel it is said that the incident occurred. That is the first component of the application. 3 The second component is made up of particulars relevant to that segment of the defendant's case on justification, which, in shorthand, is described as Admissions by Conduct on the part of the plaintiff. 4 In a letter dated 10 May from the solicitors for the plaintiff it is stated that the proposed amendment as to the date when the event is alleged to have taken place reflects the contents of statements of D18 served on the plaintiff on 9 July pursuant to a direction given by me on 25 June last year. Those statements are constituted by exhibit B on the application, and upon my reading of them I can find nothing in them that would warrant the assertion in the defendant's solicitors' letter that the shift from a specific month in 1990 to a more general period of time is available on that basis. 5 From the material available to me it seems quite clear that the plaintiff hitherto has been prepared to meet the case articulated in the particulars thus far in relation to February, and by reason of what I understand to be a general denial on the part of the plaintiff on its face it would appear that he would be not prejudiced or confounded by the proposed change. I can only describe it as curious (because I do not have all the information which no doubt is available to the parties), but the shift in ground of the defendant is to be based upon, first, nothing forthcoming from the proposed witness D18 but from something seized upon by the defendant; namely, exhibit 2 on the application, an entry in the plaintiff's diary referring to the fact that a Seminar was held at the Regent Hotel on Wednesday 10 January. Secondly, reliance is placed on the contents of exhibit C, a record of interview between the plaintiff and Detective Superintendent Woodhouse that is said to have occurred on 29 January 1999 wherein on page 39 a statement to the effect then made by the plaintiff, namely in January 1999, in relation to 1990, that he could have stayed there on one occasion. 6 The view to which I have come is that if the defendant chooses to make this amendment application and seeks to shift its ground on those bases and in the absence of any material that points to the plaintiff being prejudiced thereby either by way of preparation, knowledge, or otherwise forensically, the defendant should be permitted to do so. 7 With respect to the second component of the defendant's application, the admissions by conduct, certainly the substance of the conduct of others, which the defendant will no doubt seek to link to the plaintiff, are as set out in the original particulars of the truth (Admissions) delivered on 25 January this year. Those particulars of truth, namely admissions by conduct, in the form as attached to the letter of 11 May 2000, forming part of exhibit A, are preceded by a preamble to the effect that the plaintiff instructed or directed or knew or acquiesced in or facilitated the specified conduct in this case by two people, Messrs Rainey and Bailey. 8 When one looks at the particularisation of the conduct on its face the statements attributed to others must be pure hearsay and nothing is specified in the document, the proof of which would establish that necessary link between what was said or done by others and what was said or done, having been said or done under the authority or with the acquiescence, et cetera, of the plaintiff. It is in this area that exhibit D on the application is relevant, being a memorandum from the plaintiff to one of the two named persons relating to D18 and a draft letter attached to it. Arguably the memorandum could be understood as being innocent and anodyne , but if the amendment is allowed no doubt evidence will be forthcoming one way or the other that would seek to put another complexion upon it and upon the draft letter. 9 In relation to the second component of the amendment application I propose to grant the application, but evidence as to the matters in the document appended to the letter dated 11 May 2000 constituted by statements said to have been made to D18 by other people will in the first instance be admitted not as to the truth of their contents but as to the fact of the statements having been made. This will be subject, of course, to the defendant discharging a clear evidentiary burden to link any such statements and the conduct they might reflect with conduct on the part of the plaintiff which could be held to amount to an admission against his interests within the context of the plea of justification. 10 I am reinforced in relation to the first part of the application, namely the change of date, and for the purposes of determining the application, by the contents of exhibit 1 insofar as investigations upon which apparently the plaintiff hitherto has relied are negative in terms of the disclosure of results relating to the plaintiff's staying at the Regent Hotel for the now expanded period in 1990. 11 The defendant is granted leave accordingly and the exhibits are returned. *********** 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. 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