Marsden v Amalgamated Television Services Pty Limited

[1999] NSWSC 1308

CITATION:

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1308

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20223 of 1995; 20592 of 1996

HEARING DATE(S):

16 December 1999

JUDGMENT DATE:

16 December 1999

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	M Hall (Plaintiff) W H Nicholas Q.C. J S Wheelhouse (Defendant)
SOLICITORS:	Marsdens (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	Direction as to order of witnesses - T3393
DECISION:	See paragraphs 28-32

DLJT: 78
(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

THURSDAY 16 DECEMBER 1999

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
ACN 000 145 246
(Defendant)

JUDGMENT (Directions as to order of witnesses - T3393)

1    HIS HONOUR: By Notice of Motion filed in Court on 14 December, 1999 the defendant seeks the following order:

"Direction 4 (a) made … on 25 June 1999 be vacated".

2    That direction 4 (a) is in the following terms:

"At the trial the defendant is directed to present its case on justification and qualified privilege in that order. In that regard, (a) the defendant is to present its case on justification by commencing with D 1, then in numerical sequence to D 24."

3 That direction was one of several made by me following the grant to the defendant of leave to amend its case on justification. See my judgment DLJT 44, [1999] NSWSC 619, 23 June 1999. 4 In the course of that judgment I said in paragraph 528:

"My immediate concern are orders to be made consequential upon the resolution of the present notices of motion. I am satisfied that the plaintiff is entitled to an adjournment but I am not persuaded, particularly given the refusal of leave in relation to D 25, that the period should be in excess of three months.
Other orders I have in mind to facilitate the earlier resumption of the trial and the investigation of the new claims by the plaintiff include the delivery by the defendant to the plaintiff of signed proofs of evidence of D 17 to D 24 and other witnesses in regard to those complainants together with copies of any physical evidence, photographs, plans et cetera upon which the defendant intends to rely. Those matters would be the subject of delivery within seven days."

5    In paragraph 529 of that judgment I said:

"Further, the terms include the defendant agreeing to the presentation of its case in a particular order, presumably commencing with D 1 to D 6 then D 13 to D 16, and then D 17 to D 24, with an indication to the plaintiff of the identity of the witnesses to be called in respect of each block. Naturally some allowance will have to be made for flexibility in this regard depending upon the availability of witnesses, particularly any witness who might at the relevant time be in custody.
The matters referred to in paragraphs 528 and 529 can be dealt with when the matter is next listed for directions."

6    There had been discussion about the directions, including an acknowledgment for the defendant by Mr Wheelhouse, particularly in relation to the concept of blocks of witnesses, as not being something to which the defendant was averse (see T 1847.55). 7    The grant of leave, in my view, cannot be said to have been conditional in the sense that the directions and compliance with them were terms of the grant: that is non-compliance involving some basis for automatic, default, or self-executing, or upon application, revocation of the grant of leave. 8    What can be said as to the directions generally is, first, they reflected the spirit of the discussions recorded in the transcript prior to the making of those directions. Secondly, as was submitted by Mr Stitt in the present motion, they provided a mechanism for the reduction of disadvantage to the plaintiff by reason of the grant of leave. 9    Further, save for the requirement then imposed as to numerical sequence, direction 4 (a) does not compel the order of witnesses itself. 10    On 13 August 1999 consent orders were made, the second of which providing:

"The defendant is to provide to the plaintiff a list of the names of the witnesses to be called, and in the order in which they will be called on the issue of justification by 3 September 1999."

11    Thereafter, on the evidence in the affidavit of Mr Angus sworn on 14 December 1999 the following occurred: the defendant’s solicitors wrote on 3 September a letter setting out the order of twenty-eight witnesses on truth to be called. The list on its face does not appear to contain a numerical order, a chronological order, or a grouping or blocks. The plaintiff's reply to that letter dated 6 September 1999 makes no complaint. 12    On 12 October, 1999 a further letter was sent by Mallesons Stephens Jaques varying the order of witnesses set out in the letter of 3 September. 13    By letter dated 18 October, 1999 the plaintiff's solicitors acknowledged as "noted" the contents of the 12 October letter. There the matter rested until 7 December 1999 when, during the course of submissions on the plaintiff's adjournment application, and submissions by the plaintiff, I raised with the plaintiff the question of compliance with direction 4 (a). See transcript 3004.15. 14    The plaintiff, upon my interruption, said that he was “coming to that”, and he did so at transcript 3008.42 where, by way of submission, he said it was "unfair". He referred to what was said to be the plaintiff's anticipation of blocks of witnesses, and importantly the extreme difficulty he would have if required to cross-examine the defendant's witnesses himself. He did not blame the defendant for what it had done. 15    In my judgment granting the adjournment on 8 December 1999, in paragraph 21, I referred to my intervention, and in paragraph 22 expressed the view about the effect of the consent order not varying the original direction, a view to which I adhere. 16    On the same day, 8 December 1999, the plaintiff wrote to the defendant's solicitors seeking confirmation of the lists of witnesses as had been set out in the defendant's solicitors' letters of 3 September and 12 October. On 9 December, 10 December, and 13 December the plaintiff wrote to the defendant's solicitors raising the issue of non-compliance for the first time in a real sense, that is after my having raised it on 7 December, and referring to it in my judgment of the 8th. 17    Mr Angus was cross-examined by Mr Marsden on his affidavits relied upon in support of the notice of motion. I accept on his evidence that the letters of 3 September and 12 October were sent by him in ignorance of direction 4 (a), but not of 4 (b) and (c). 18    As I understand it, the basis for the defendant's application is that the orders generally have the effect, as I have said, of diminishing the disadvantage to the plaintiff of the grant of leave to amend. Direction 4 (a) has the specific effect of cutting across the exercise by counsel of that onerous but independent discretion as to the presentation of the client's case, especially as to the calling of witnesses. The relevant authorities are: Briscoe v Briscoe (1968) 501 at 504; Bond v Australian Broadcasting Tribunal (1988) 1 FCR 494 at 514. These were discussed in my judgment of 16 November 1999, NSW SC 1120, DLJT 54 at paragraph 25. See also Giannarelli v Wraith (1988) 165 CLR 543 at 556, per Mason C J. 19 It is to be observed that whilst the principles are to be taken as well-known, at no time in the context of the making of the directions in June were submissions made in accordance with them. Be that as it may. What is clear is that direction 4 (a) has, to the limited extent referred to, the quality of cutting across that discretion. What is clearer is that the letter of 3 September was not in accordance with 4 (a), nor the consent orders of 13 August which did not vary it. What is equally clearer is that the letter of 12 October, 1999 varying the list was despatched without application having been made to vary the notified order of witnesses as provided for by direction 6 of the directions of 25 June. 20 The following matters also are clear: the only assumption that can be made is that the defendant's solicitors' letters of 3 September and 12 October in fact reflect the exercise by the defendant's legal advisors and counsel of that discretion to come to the order of witnesses therein set out. What is equally clear is that no complaint was made till after I raised the issue on 7 December, and then the remarks of the plaintiff were focused on the need to adjourn the hearing to obviate his personal difficulties arising from him being compelled simply to cross-examine the defendant's witnesses, not by reason of the order they had at that time been specified, I having raised it in my judgment of 8 December 1999, then the complaint was made. 21 The defendant does not assert prejudice. The essence of the unfairness to the plaintiff has been removed by the granting of the adjournment. 22 The reality now is that a status quo reflected in the letter of 12 October has been permitted to be reached in circumstances where counsel has exercised that discretion to which I have referred. Mr Angus was ignorant of direction 4 (a). 23 The plaintiff two months later, after my intervention, now complains in circumstances where the real reason, non-representation, has been dealt with. It is the status quo now in place following the letter of 12 October which in my view should be maintained. It should be maintained as a matter of trial in progress management. 24 In fairness to the parties, as at the resumption of the trial in the next court week, which happens to be 31 January 2000, and in their preparation therefor, the status quo can be maintained by a new direction. 25 There are, however, two matters of importance. The first I would understand to be non-contentious. The calling of witnesses in a notified order is always subject to what I describe as the everyday exigencies; illness, death, transport delay and the like. This is recognised by both sides and points to that flexibility to which reference has in my view always been made and acknowledged. 26 The second matter is the more important of the two, and it is the question of blocks of witnesses. This was specifically acknowledged by junior counsel for the defendant at page 1847.55 as not being in dispute. By reference to the letter of 12 October 1999 the defendant should inform the plaintiff in writing as to which of the non-complainant witnesses, that is its non "D" persons, as they were then referred to in that letter, are being called in relation to the defendant's case in respect of each "D" person. If it is the case that one complainant is to be called to give evidence in support of another complainant's case that should be specified. 27 I acknowledge that to some extent where proofs have been provided it may be self-evident as to which witnesses are giving evidence on which issues. But I do not know. However, by way of example, from the list of witnesses the defendant has provided in its letter of 12 October, 1999, the defendant should notify the plaintiff by reference to name and the number in the letter next to each witness which is being called, for example in relation to D 6, Mr Stephen Elomari. 28 First, I vacate the direction I made on 25 June 1999. 29 Secondly, I direct, subject to direction 6 which remains in place, that the defendant present its case in truth in accordance with the order specified in the defendant's solicitors letter of 12 October 1999, being annexure E to the affidavit of Ian Robert Angus sworn 14 December 1999. 30 Thirdly, by 4 pm on Friday, 7 January 2000, the defendant is to notify the plaintiff in writing which of the 28 persons referred to in that letter will be called in respect of each of the persons referred to by name and by D number. 31 No further order is sought by the defendant. 32 I am concerned at the number of dangling costs positions that are developing in this case. I can express a very firm view about this application in the light of the position of each side: that the costs of this motion should be costs in the cause, and that is what I order.

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Last Modified: 06/26/2000