Bass v McDonald & TCN Channel Nine Pty Ltd (No.3) [2001] NSWSC 956

New South Wales Supreme Court

CITATION : Bass v McDonald & TCN Channel Nine Pty Ltd (No.3) [2001] NSWSC 956 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 16791/90 17 - 19 October 2001 HEARING DATE(S) : 22 & 23 October 2001 25 October 2001 26 October 2001 JUDGMENT DATE : 26 October 2001

Robin Bass PARTIES : Thomas McDonald TCN Channel Nine Pty Ltd JUDGMENT OF : Sperling J at 1

COUNSEL : Mr T Molomby with Mr R Rasmussen for the Plaintiff Mr B McClintock SC with Mr M Richardson for the Second Defendant SOLICITORS : William Oates Lawyers for the Plaintiff Gilbert & Tobin Lawyers for the Second Defendant CATCHWORDS : No question of principle DECISION : See paragraph 8 of the judgment.

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SPERLING J Friday 26 October 2001 16791/90 Robin Bass v Thomas McDonald & TCN Channel Nine Pty Ltd Judgment (No.3 - On application by Mr Molomby for his Honour to give the jury an instruction. See p120 of transcript.)

1 HIS HONOUR: In the course of his opening to the jury Mr McClintock referred to the matter of a sum of $20,000 having been paid. This was said to be part of the defendant's case, that the description of the plaintiff as a shonky operator is true. In that connection, and it seems in connection with the events subsequent to the payment of such a sum of money, it was said that the plaintiff had dealings with Mr Lennie McPherson. 2 At the conclusion of counsel's address Mr Molomby, on behalf of the plaintiff, sought a direction from me, instructing the jury to disregard the comment made by Mr McClintock on the basis that there was and could not be any foundation for it. I have been shown part of the report of the Royal Commission into the building industry conducted by Mr R V Gyles of Queen's Counsel, as he then was, in which there is a passage in volume 4, pages 41 to 42, where Mr McPherson is mentioned. The critical part of the passage reads as follows: Mrs Bass gave evidence that Leonard McPherson was present at the club at the time of the meeting with Balac. McPhearson, when giving evidence, said he had never heard of Bass. However, during a later hearing he gave evidence of recalling of conversation on premises between Mr and Mrs Bass and said he recalled reference to money being paid "to an union bloke and they went to Freeman and tried to get him to give their $20,000 back." 3 I have also been shown part of the evidence of Mrs Bass given before the Commissioner, which shows that her evidence appears to have gone no further than to have placed Mr McPherson on the premises at the time of the meeting referred to in the report, but not as showing Mr McPherson in any way involved, either in conversation with Mr and Mrs Bass or being physically with them at all. 4 On the other hand, what is referred to in the report concerning Mr McPherson's evidence seems to me to be open to the construction and inference that Mr McPherson was in conversation with Mr and Mrs Bass at that time. 5 Mr McClintock indicates that, apart from cross-examination on the basis of the report, he intends to tender the relevant part of the report as evidence. Mr Molomby indicates, and I say this without criticism, that he is not in a position at the moment to indicate what his attitude would be to that report being offered in evidence. 6 I have not seen anything which persuades me that the reference to Mr McPherson, by Mr McClintock, in the terms used by him was improper or irregular, having regard to the course which he intends to pursue in the proceedings. It may be that the evidence, when complete, will not be sufficient to persuade the jury that there were any dealings with Mr McPherson. It may be that the evidence will be insufficient for any such association to be open to the jury to be found. In the latter event it would be appropriate for me to say something specific about disregarding what was said in opening in relation to Mr McPherson. 7 In summary, it does seem to me that this is a topic that Mr McClintock is entitled to pursue in the way in which he has in mind. I do not want to close off other possibilities, including the possibility that, if too much is made of this and it proves in the end not to be matter open to the jury to be taken into account, the situation might develop in which Mr Molomby would have a proper basis on which to apply for a discharge of the jury. That, however, is a speculative possibility and should not be construed as indicating a view on what would be a hypothetical situation at this stage. 8 For those reasons I decline to accede to the application that has been made. -oOo-