New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services [2000] NSWSC 27 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 7 February 2000 JUDGMENT DATE : 7 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 the defendant's Notice of Motion relating to order of witnesses - T3620 DECISION : See paragraph 30 DLJT: 83 (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 7 FEBRUARY 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On the Defendant's Notice of Motion relating to order of witnesses - T3620) 1 HIS HONOUR: By a Notice of Motion filed in court today the defendant seeks orders that the directions made by me on 16 December last year that it call its witnesses in support of its defence of justification in the order set out in the letter of 12 October 1999 be vacated, and that it be granted leave to call its witnesses in accordance with the order set out in the letter dated 24 January this year. 2 The evidence on the motion is constituted by an affidavit of Mr Angus sworn 31 January and two affidavits of Mr Potter, the first sworn 29 January and the second, being the one annexing the transcript of proceedings in the Court of Appeal, sworn 3 February. 3 I have previously ruled in relation to the order of witnesses on 16 December 1999 ([1999] NSWSC 1308: DLJT: 78) and on 31 January 2000 (T3442). 4 In relation to one of the two witnesses who particularly were the subject of mention in the course of submissions, Mr Olive, I declined a pseudonym order on 16 December ([1999] NSWSC 1309: DLJT: 79). The refusal of that order is the subject of an application for leave to appeal to the Court of Appeal, expedition of which application was refused on Wednesday 2 February by the learned President. 5 The Notice of Motion with which I am concerned was filed and argued pursuant to the directions given by me on 31 January 2000, (T3442.15). 6 The following has occurred, as a matter of history. On 31 January, the first day of the resumption of the hearing, I made an order nunc pro tunc varying the order of 16 December founded upon the letter of 12 October, to permit the calling first, of Mr Leary, (who has given his evidence), and on that day permitting Mr Barker an adjournment to enable him to prepare his cross-examination. 7 Next, the Court of Appeal, as I have said, has refused to expedite the application for leave to appeal in relation to the refusal of the pseudonym order. When that leave application is likely to be heard is presently unknown. 8 Next, in relation to the witness Mr Homes, I am informed by Mr Stitt that Mr Homes is presently in custody serving a sentence. He will not be released until 24 March. He is said to be unwilling to give evidence whilst in custody for reasons which he regards as good and proper but which, at the moment, are not the subject of evidence. 9 Next, matters have been raised in paragraph 13 of Mr Angus's affidavit in relation to witnesses whose evidence will be led by Mr Nicholas Q.C., the testimony of those people embracing both the defence of justification and the defence of qualified privilege. 10 Next, in the course of submissions and in answer to an inquiry by me, there has been indicated an order of witnesses by reference to the letter dated 12 October 1999 presently up to Mr Elomari, who is numbered (10) in that letter, omitting of course Mr Leary who has come and gone, Mr Olive, Mr Homes and a position in relation to Mr Pearce to which I will return. 11 The next development, of course, is that the trial of the defendant's case is running. Mr Stitt has made submissions on matters of principle conformably with those made on earlier applications, and I do not propose to rehearse them. 12 I will not permit myself to be concerned with tactical manoeuvring by the parties, whether it is real, perceived, or suspected. My principal concern is with the running of the trial and the usual considerations of the interests of justice and fairness. 13 The orders I made on 16 December 1999 are in place, subject to the variations I made on 31 January. Those orders, I repeat, were anchored in the order of witnesses set out in the defendant's solicitors' letter of 12 October 1999. 14 Any disadvantage to counsel for the plaintiff by the variation of the order in terms of the lack of an opportunity properly to prepare a cross-examination can of course be cured by an adjournment. None of the material provided to me, or anything said in this current application, persuades me that any variation will be a matter of irremedial prejudice, or indeed unfairness to the plaintiff which cannot be cured at all. 15 The Court will, of course, not take any step the effect of which would be contrary to the interests of justice, or an unfairness to both parties, or to the prejudice of the continued running of the trial; any step that would, expressly, by implication or by a matter of perception, have the present effect of shutting out the defendant from calling relevant evidence subject to the directions in place and as varied, or to be varied. 16 It all circumstances whether a witness will be called by the defendant will be a matter for the defendant. 17 In the hope of clarifying that position, let me take a hypothetical example. Let us assume that, subject to variations which I will propose, by a miracle forensic efficiency, the defendant's case ends in a fortnight and there is a yawning chasm between the termination of that case at that point and the availability of a still outstanding witness. That will be the time for the court to further consider any application that the defendant might then make in relation to that witness. 18 It does seem to me, however, that the direction of the 16 December remains in place and substance. It was varied on 31 January. It is capable of variation in the light of the defendant, as Mr Stitt indicated, being ready to call (through either himself, or through Mr Nicholas), the witnesses as set out in the letter of 12 October 1999 subject to those witnesses the defendant has indicated it does not propose to call, and taking into account that Mr Leary has given evidence, and subject to evidence being provided in relation to Mr Homes and subject to the status of Mr Olive. 19 In respect of the last mentioned, as it was made clear in the Court of Appeal, and which I understand presently still to be the position of defendant, the defendant does not wish to call that person until the Court of Appeal has resolved the leave application. 20 It safely can be assumed, on present information, that this trial, and in the terms of calling of available witnesses, will roll on week after week after week. Whether in the course of that time the Court of Appeal will have entertained a leave application, I do not know, but then again, whether or not the defendant calls that person and at what time and in what circumstances is entirely a matter for the defendant. 21 Any application that the defendant wishes to make in relation to that person can be made to me. Presumably one could be made to the Court of Appeal. But the very least the defendant can do, if he intends to call that person in certain circumstances, is to give due notice of that fact to the plaintiff. 22 I am of view that the trial should proceed. I do not propose to order the defendant to call the last mentioned person in a particular order, or not to call that person. The progress of the trial will no doubt determine the steps the defendant proposes to take in relation to that person, or indeed in relation to Mr Homes. 23 So I formally decline to make the orders set out in the Notice of Motion. 24 The order I make on 16 December remains in place, but subject to the following. 25 The defendant is not bound by that order in relation to Mr Homes. I have to hear evidence in relation to any particular application that is to be made in respect of him. I have said enough about Mr Olive. 26 The order as set out in the letter of 12 October, subject to the events that happened, the present removal of witness number (1) and witness number (8) and other witnesses not to be called identified by the defendant to the plaintiff, is still in place. 27 A further variation is that the Court will note that, after the calling of witness identified as number (17) in the letter of 12 October 1999, Mr Liliburn, there will be called a Mr Travis. 28 The remaining matter in relation to that order of witness as it presently exists is the person presently identified as the ninth in the order Mr Pearce. That is an example of a state of affairs which is really not satisfactory to the Court, or to the plaintiff, and it might not be to the defendant either, namely, that the defendant says "it does not know" whether it is going to call Mr Pearce in the order. Until the defendant is in a position to present an application to vary the order which presently does include Mr Pearce in his place, he will remain in that place. 29 It thus seems to me that the present order of witnesses, omitting Mr Leary, Mr Olive and Mr Homes, it can be anticipated will be the conclusion of the present Maynard, to be followed by his brother, Mr Stals and Mr Kinchela, and Mr Russell, Mr Pearce, Mr Elomari, and thereafter as set out in the letter of 12 October varied by the addition of Mr Travis and as varied by the omission the named witnesses not to be called. 30 Both parties have liberty to apply on twenty-four hours' notice in relation to the order of witnesses. *********** 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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