Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 435

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 435 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 22 May 2000 JUDGMENT DATE : 22 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 application to postpone evidence of Mr Arnold in order to make determination as to whether to present him as an expert witness - T6326 DECISION : See paragraph 4

DLJT: 158 (Ex Tempore - Revised) [2000] NSWSC 435

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

JUSTICE DAVID LEVINE

MONDAY 22 MAY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On application to postpone evidence of Mr Arnold in order to make determination as to whether to present him as an expert witness - T6326) 1 HIS HONOUR: Mr Arnold has given evidence as a non-expert and such evidence as he has given was subject to objection. Earlier this afternoon, I made a ruling as to relevance and admissibility and an application has now been made by the plaintiff to stand Mr Arnold down until Monday of next week to determine whether or not his evidence should continue in his present capacity or whether to present him to the Court as an expert with all that involves under SCR Pt 26 r 13B and any variation of the application of that rule as to service of reports. 2 As has been submitted for the defendant, one course available, subject to matters attending Mr Arnold, in the light of the history that goes back to 11 and 12 May as to the defendant's attitude to Mr Arnold as an expert witness, is that we conclude his evidence now, that is, I mean in his present status. Mr Nicholas can make whatever decision he wishes as to cross-examination and then if at some later stage in the trial the plaintiff wishes to seek leave to recall Mr Arnold as an expert, then that application will be dealt with. 3 The attitude of the defendant has been fairly clear, as I understand it, for over a week. The plaintiff elected to lead Mr Arnold's evidence at 2 o'clock after various aspects had been canvassed during the course of submissions. 4 At 9.30 tomorrow, the plaintiff is to indicate whether he proposes tomorrow to lead further evidence to conclude Mr Arnold's evidence-in-chief or whether there is to be no further evidence. The application discretely made a few moments ago is refused. ***********