Marsden v Amalgamated Television Services Pty Limited

[1999] NSWSC 1204

CITATION:

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1204

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20223 of 1995; 20592 of 1996

HEARING DATE(S):

6-7 December 1999

JUDGMENT DATE:

8 December 1999

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	Mr Marsden (Plaintiff) W H Nicholas Q.C. J S Wheelhouse (Defendant)
SOLICITORS:	Marsdens (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	On application for adjournment - T3086
DECISION:	See paragraph 48-50

DLJT: 67
(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

WEDNESDAY 8 DECEMBER 1999

JOHN MARSDEN
(Plaintiff)

v

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


JUDGMENT (On application for adjournment - T3086)

1    HIS HONOUR: By a Notice of Motion filed in court on 30 November, the plaintiff seeks the following order (1):

"Following the plaintiff's evidence on damage the trial be adjourned until commencement of the new term in February 2000."

2    In support of the Motion two affidavits were relied upon. The first is that of Mr Nassir Bechara sworn 30 November 1999. Paragraphs 1, 2, 8 and 9 were read without objection, paragraphs 5, 6 and 7 were admitted over objection. Paragraphs 3 and 4 were not read. This deponent was cross-examined. He has been employed on a contract basis by Marsdens since October in relation principally to the damages claim but also to assist in the discovery process. He has but a limited understanding in relation to what I will describe as the $240,000 matter consequent upon orders of the Court of Appeal. He has made no inquiry, and he knows of nobody else who has made an inquiry as to "the availability of counsel of whatever level and experience to act for Mr Marsden through to the end of 17 December 1999" (T2982.30 per Nicholas Q.C.). 3    The second affidavit was that of Mr Potter sworn on 26 November 1999. It was read without objection subject to it being relevant, which it clearly became. Mr Potter was cross-examined. From his evidence I find that Mr Marsden's position vis-a-vis Mr Barker Q.C. is unchanged in this sense, that Mr Barker's unavailability until the new term has been known since August. 4    Second: Mr Barker has now been retained from the first day of term 2000, subject to what has been described as "the financial aspect". 5    Third: that financial aspect as at the date on which Mr Potter gave his oral evidence is very close, or was then very close to a position of finality. Nothing in Mr Potter's evidence would lead to any view that the situation will be otherwise than that the financial aspects will be attended to. 6    Fourth: Mr Potter has not made any inquiry as to counsel on the damages question. That is clear from his oral evidence. 7    Fifth: Mr Potter has not made any inquiry as to the availability of counsel on the truth issue other than of Mr Barker who, as a matter of record of course, appeared at the jury trial in this action, and during the critical Amendment Application. 8    A generalised assertion that the plaintiff has made no inquiry as to the availability of counsel to act for him up to 17 December is not open on the evidence, or in the face of the record by reason of Mr Donohoe Q.C. and Mr Hall's appearance on the damages issue, and by reason of the inquiries of Mr Barker. 9    The point is that no step has been taken to engage counsel for the truth issue and act for the plaintiff on that issue up to the end of 17 December this year. That, on, the material, is indisputable. 10    Other evidence is made up of Exhibit 1, tendered by the defendant, being the transcript of proceedings in the Court of Appeal on 13 September 1999. The relevant part of that transcript is at page 4, and I read from some remarks of the President to provide a context for the statement made by Mr Reynolds S.C. His Honour said:

"I am very conscious of the fact that Levine J intended your client to be put in funds so as to get on with the trial as a represented party.
REYNOLDS: In the sense it is blunter than that. If my client doesn't get these funds he will be presenting the case personally. That's what it amounts to. That's the suggestion that we’re making, and they are my instructions."

11    I make no comment on his Honour's observation. The fact relied upon is the statement by Mr Reynolds as at 13 September that in the event of the matters he refers to, the plaintiff will be representing himself. 12    Exhibit B is a bundle of correspondence that has passed between Mallesons Stephen Jacques, solicitors for the defendant, and Marsdens. 13    On 13 September, coincidentally the day on which Mr Reynolds made his statement to the Court of Appeal, Marsdens wrote a letter which was addressed to my associate, but a copy of which appears to have been provided to the defendant’s solicitors. In that letter the plaintiff makes an observation propos the trial resuming on 15 November. He was endeavouring to be ready on that day, and noted that the “learned judge had said there would be no further adjournments”, stating his need to clarify his position in relation to recoverable costs. 14    The only observation I make with regard to the letter of 13 September is that I could find no statement by myself that there would be “no further adjournments”. Be that as it may, as I understand the letter it is relied upon, as evidencing a perception in the plaintiff, at the very least, as to his chances of any such development. 15    On 5 November Mallesons wrote to Mr Marsden, apparently in response to a request, with that firm's assessment of the likely course the proceedings would take. Mallesons state their view:

"1. We estimate that the evidence from your damages and reputation witnesses should take about two weeks.
2. If you choose to give evidence in the plaintiff’s case, we anticipate that will commence on approximately 29 November 1999. If 7 court days are allowed for your evidence, the defendant’s first truth witnesses will commence their evidence on or about 8 December 1999 and will continue until the end of the Court term on 17 December 1999. The balance of the defendant’s truth witnesses will give evidence, presumably from 31 January 2000 onwards. They will be followed by the witnesses on qualified privilege.
3. If you choose not to give evidence in your case in chief, the defendant’s truth witnesses will commence giving evidence on or about 29 November 1999 and will continue until the end of the Court term. The balance of the defendant’s truth witnesses will give evidence, presumably from 31 January 2000 onwards. They will be followed by the witness on qualified privilege”.

16    As a matter of history of course the prognostications of the defendant, who cannot be criticised for forming a view as they saw it as of 5 November, have not been shown to be accurate. 17    Included in Exhibit 2 is a letter from Marsdens dated 11 November 1999 that refers to the plaintiff having provided a witness list on 25 August this year, and to something that might be described as a confusion of information, as at 11 November 1999, relating to whether or not the plaintiff would give evidence. I propose not to further remark on that letter. 18    There are two other letters, the significance of which is that they play no part in the resolution of this motion. 19    On 25 June, 1999 in DLJT:45 I gave directions after the delivery of the judgment on the Amendment Application. The fourth direction is in these 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 D1 and then in numerical sequence to D24”. Subparagraph (c) provided that the time within the notification of the witnesses was to be made would be the subject of further directions. 20    A letter dated 3 September, 1999 from the defendant solicitors to Marsdens indicates an order of witnesses which commences with Shane Olive (D18), then proceeds to Mr Stalls (D1), then Mr Kinsella (D5) and then Mr Ray Leary (D23). On 12 October the order indicated in relation to the first 4 witnesses was Mr Olive (D18), Mr David Maynard (D15), Mr John Maynard (D16), Mr Stalls (D1). 21    I raised the question during Mr Marsden's submissions that those letters on their face did not indicate compliance with the Direction I had given. The defendant relied on consent orders made on 13 August, the relevant one of which is number 2, that the defendant is “to provide the plaintiff with a list of names of the witnesses to be called and the order in which they will be called on the issue of justification by 3 September 1999”. 22    It is not necessary for me to make a finding about that. But I will express the view that I do not presently consider the consent orders to have varied the direction other than as in accordance with the direction to provide a date by which the list of names was to be provided. But there has been no complaint about that. The nub of Mr Marsden's submission in this application is that he will be confronted by the calling of truth witnesses. I certainly am in no position to make a qualitative judgment about those witnesses. The matter of apparent non-compliance with the direction is a non-issue in the adjournment application. 23    Further I will not take as evidence, or in any other way, what the plaintiff said from the bar table as to other counsel, as to the personal attributes of anticipated witnesses for the defendant, or indeed his own. Other matters clearly by way of submission I will have regard to: the question of fairness, matters of history in light of earlier rulings and the like. 24    The essence of the plaintiff's basis for the application was set out in an affirmative answer to a question from myself at page 2976. The import was that the only reason, or it may be the principal reason, for the adjournment application, is that a firm of solicitors, Phillips Fox, and Senior Counsel, Mr Barker, are now in a position to act for the plaintiff in meeting the defendant's case on truth, that Mr Barker is not available until 31 January, the first day of the new term. 25    The essence of the application in terms of relevant principle was stated by counsel for the defendant at the close of his submissions at T3021.25 in these terms: "in the interests of the overall justice of this case at this point of time to both parties would require the rejection of the application." 26    The statement I have reproduced was made in a context that was important, and I will return to it. 27    What is the point of time in the trial over which I am presiding? As at the conclusion of submissions at about 11.30 yesterday, we were in the middle of a four day week, it being the second last week of term and the fourth week of the resumed hearing. We are in the presentation of the plaintiff's case on damages in which hitherto thirty-nine witnesses have been called, and, perhaps inconsequentially I add, fourteen rulings have been delivered since 15 November. We are at a point where the duration of the plaintiff's case cannot be in any finite way identified. What is now clear is that the plaintiff will not be giving evidence in it, and what is equally clear is that had he chosen to do so, this present exercise would be academic. 28    Also at this point of time there is part-heard an application for inspection by the defendant of documents set out in the plaintiff's list recently served pursuant to order. About half an hour has been spent on that matter. As to inspection, it is said by Mr Wheelhouse to be of the utmost importance to the presentation of the justification case; so important, that I should rule in favour of the plaintiff, steps forthwith will be taken to institute an appeal. 29    Not having heard submissions what I will decide is unknown. If I decide adversely to the defendant, it will only be a matter of speculation as to what the Court of Appeal will do, and if it does anything, whether it's intervention, that is by doing anything, will in effect operate in some way as a stay of the progress of the hearing which the defendant is anxious otherwise to secure. 30    What are the interests of the defendant? It will be ready to proceed to call its truth witnesses, about four, doing the best one can to anticipate progress, and taking into account as far as necessary the unresolved inspection application. The witnesses have been ready on a prior occasion. So have presumably those of the plaintiff. 31    The readiness of the defendant is to call truth witnesses to be dealt with by an unrepresented plaintiff. I do not concern myself with the forensic manoeuvring and obvious forensic advantage to the defendant of that situation. The unrepresented plaintiff is to deal with such witnesses on such an important issue: that is a matter that goes, at least, to his interests. 32    The defendant submits the position in which the plaintiff presently finds himself is one which can be characterised as his being the author of his own misfortune, to adopt the language of the justices of the High Court in Sali v SPC Limited and Another (1993) 116 ALR 625 at 631.29. Sali's case, leaving aside the valuable statement of principles by their honours, like The State of Queensland v JL Holdings (1996-7) 189 CLR 146, on a factual basis, is far removed from the present circumstances. The former is concerned with proceedings in an appeal court, the latter with the question of an adjournment well before any trial had commenced. 33 At this point the plaintiff's case has run quite smoothly over four weeks, about one and a half hours only being lost by reason of running out of witnesses. At this point of time neither side can be criticised for that. No doubt the plaintiff did not anticipate Mr Lyall lasting about two minutes upon his being called on 15 November, and then there taking three days to complete his evidence. The defendant no doubt did not anticipate having the opportunity legitimately to expend so much time, including a whole day of cross-examination with Dr Dent, in the light of the events that occurred during his evidence. 34 I do not see any benefit in speculating at this point, or hypothesising, as to what would have been the position had Mr Marsden been appearing in fact alone - that is unrepresented - from August. Nor do I see any point in speculating or hypothesising as to what the position would have been had the plaintiff's case, with representation, in fact ended at the end of what I understand to be Mr Donohoe's two week retainer from November 15. 35 At this point of time it further has to be observed that there is no evidence before me other than that the defendant will be ready to begin at the end of the plaintiff's case on damages. By that I mean there is no evidence that it will not be ready on any day from 31 January 2000 or that there has been lost to it witnesses and the like. 36 The only matter adverted to, by way of submission in this context, is the natural fading of human memory in a case in which alleged events are said to have occurred decades ago, at the earliest. The four or five witnesses ready now for the defendant, in the absence of evidence to the contrary, safely can be assumed will be ready whenever called, and would have been ready next year in the event, for example, of the plaintiff having gone into the witness box and the balance of this Term taken up with his being dealt with. 37 A point of time has been reached which exposes a situation which, with stark simplicity can be described as the plaintiff's case on damages will soon end. Mr Marsden has been represented by Mr Donohoe, for two weeks, commendably by Mr Hall who still appears for him, and by himself.

38    The defendant will be ready, as I have said. Its representation has been, on a comparative basis, quite stable. Importantly, that which the defendant will be ready to do is to present its first four or so witnesses on the most profoundly significant component of the trial: its case on the truth of the defamatory imputations which constitute serious charges against the plaintiff. The evidence will be led from about 28 people relating to the plaintiff's alleged sexual misconduct. That is the case the presently unrepresented plaintiff will be called upon to deal with in whatever number of days will be left this year. That is the case the plaintiff, with the independent, detached representation of a senior member of the bar who has been in this trial, will otherwise have to meet from 31 January 2000.

39    Consistency in approach has been urged upon me (the context of Mr Nicholas’ remarks above) and rightly so, by reference to at least eight earlier judgments or rulings of my own being: DLJ:2 of 5 May 1998 which dealt with the application for expedition; DLJ:4 of 18 September 1988 which dealt with the fixing of hearing dates for the expedited hearing; DLJ:5 of 23 October 1998, which dealt with an application for a three day adjournment during the trial; DLJT:44 of 23 June 1999, which was the lengthy judgment on the defendant's amendment application, which foreshadowed the giving of directions, the directions themselves, DLJT:45 (25 June 1999) to which I have referred; DLJT:47 of 19 August dealing with the plaintiff's application to adjourn the trial by two weeks, which was successful, thus resulting in its commencement on 15 November; DLJT:48 of 26 October 1999, dealing with what was, in effect, the second application by the plaintiff to restructure the trial; DLJT:51 of 12 November 1999, dealing with pseudonyms. 40    The consistent threads through those judgments and the transcript references made during the course of submissions, are that availability of counsel has not been a consideration in date fixing; secondly and more to date, the plaintiff has said that he will represent himself; and, thirdly, the repeatedly announced availability of the period from 15 November 1999 to 17 December 1999 for the hearing of this trial, subject to notified non-hearing days. Other consistent themes have been of course the magnitude of the litigation, the significance of the truth plea, and what I have expressed at least one if not more than once, the earnest hope that the plaintiff will adequately be represented. Consistency is important, but not at the expense of recognising changed circumstances, and there have been changed circumstances. 41    First, as a result of the amendment application, the appeal of the costs order and proceedings in the Court of Appeal, the plaintiff's representation status has changed. That was known in August. In that context all that has happened is that the plaintiff has not made inquiries, on the evidence, as to anyone's availability to be his counsel on truth, upon clarification of his financial position, other than the counsel of his choice who has been in the matter, Mr Barker QC. It would be imprudent to speculate as to the outcome of any inquiry if it had been made. This is the principal adverse thing against the plaintiff and the principal thing upon which the defendant relies. 42    What other changes have there been? In the evidence of Mr Potter, there is the availability of funds to which I have referred and the confirmation of the availability of Mr Barker from 31 January 2000. 43    But other things of critical importance have changed. The trial before me has been running quite well, with representation, thus far into the second last week of term for 1999. That is a critically important and new perspective from which to view the history, at this point of time. 44    The resources of the court are not, in my concluded view, a real consideration. Some weeks ago the parties were informed of the then rostered time available until May 2000. Insofar as the expression has been used that a judge has been “dedicated” to the hearing of this trial, that has been myself from the first week of 1999, and by "dedicated" I mean allocated virtually exclusively to hearing the case. That is the position that will apply in the year 2000. The present application can therefore be characterised as a “trial in progress” management matter, as distinct from a case management matter or a court list management issue. 45    It has been submitted that court time, in the public interest, must be responsibly be used. I agree. "Responsibly" is the key word. The public does have an interest in court time being used for the interests of the overall justice of this case for both parties at this point, not in the creation of unfairness or injustice for one party as weighed against the position of the other. On present indications, if the order is made there will be other matters for the court to deal with, and I mention that merely in the context of the exploitation of court resources. 46    I have been referred by both sides to what Kirby J said in J L Holdings, particularly between pages 170 to 172. His Honour concludes his most useful review of relevant principles in relation to adjournments and case management considerations as they were thrown up by that particular case by saying this: from p 172 (7):

"Whilst taking all of the considerations relevant to the circumstances of the case into account, the judge must always be careful to retain that flexibility which is the hallmark of justice. New considerations for the exercise of judicial discretion in such cases have been identified in recent years, but the abiding judicial duty remains the same. A judge who ignores the modern imperatives of the efficient conduct of litigation may unconsciously work an injustice on one of the parties or litigants generally or on the public".

47    At this point of time, will the interests of overall justice to both parties, given the respective positions I have identified on the evidence, in the orderly fair and sensible conduct of this part-heard trial before me, be served by an unrepresented plaintiff being constrained to meet the truth case in the circumstances I have described it? Constrained that is by, over the next few days, being kept to his position as stated, and known since August and, vis-a-vis a defendant about whom it can be said that it is “ready”. 48    Given the position of the parties, to force the plaintiff on, and that is what it amounts to, would be manifestly unfair in itself. It would serve no purpose in the orderly conduct of this part-heard trial before me and would bring about a situation contrary to the interests of overall justice, a situation which that flexibility to which Kirby J referred, can, and in all the circumstances, should be, employed to eliminate. I make order 1 in the notice of motion. 49    In the normal course of events, there would either be an order for costs made or an argument about costs. In the normal course of events, I would anticipate that an order for costs be to the following effect, and I am not making it, but that the plaintiff pay such costs as are thrown away by reason of the adjournment, that is the defendant's costs, and the defendant pay the plaintiff's costs of the contested application. If there is to be an issue about costs I will reserve it. 50    Costs reserved.

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Last Modified: 12/10/1999