Marsden v Amalgamated Television Services Pty Limited

[1999] NSWSC 1170

CITATION:

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1170

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20223 of 1995; 20592 of 1996

HEARING DATE(S):

30 November 1999

JUDGMENT DATE:

30 November 1999

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	M Hall (Plaintiff) R Stitt Q.C. W H Nicholas Q.C. J S Wheelhouse (Defendant)
SOLICITORS:	Marsdens (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	Admission into evidence of MFI 27, copy "unabridged" report of Dr Dent dated 18 May 1998: T2702
DECISION:	See paragraph 6

DLJT: 60
(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

TUESDAY 30 NOVEMBER 1999

JOHN MARSDEN
(Plaintiff)

v

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


JUDGMENT (Admission into evidence of MFI 27, copy “ unabridged” report of Dr Dent dated 18 May 1998; T2702)

1    HIS HONOUR: At the conclusion of the evidence of Dr Dent yesterday, there remained outstanding the question of the tender of MFI 27, the copy of a report dated 18 May 1998. It is a report by Dr Dent which, on the state of the evidence, fairly can be described as the “unabridged” report. What on the state of the evidence can fairly be described as the “abridged” report is part of exhibit F. 2 The document MFI 27 was the subject of much cross-examination as to its creation, its alteration by omission, its references to matters other than the two television programs as stressors and the like. Its importance as at 26 November, in terms of relevance, is set out in paragraph 15 of my judgment on that date in relation to a claim for privilege ([1999] NSWSC 1155: DLJT: 59). The present state of the evidence leads fairly easily to the conclusion that the witness disavowed the “abridged” report of 18 May, being part of exhibit F. 3    The defendant says it would be unfair to admit the MFI as a medical report which was not served. It was indicated that it had not been made available, as it would be in the usual course, to any expert qualified by the defendant, in a way that would enable such an expert to provide comment and thus lay the groundwork for cross-examination. 4    The ambit of the cross-examination of Dr Dent is capable of indicating various areas under challenge by the defendant. It questions whether any opinion was expressed at all; whether any opinion, if expressed, was founded on bases that could be described as true or false by reason of the alteration of the report; and whether the opinion, if any was expressed, took into account the matters I have referred to as "other stressors". 5    If the defendant's position is that Dr Dent's overall report establishes nothing in the context I have just outlined, even by way of opinion, I do not see how it is disadvantaged or prejudiced by not having been provided it to any expert retained by it. If it is the defendant's position that Dr Dent failed properly to give weight to the other stressors conformably with an opinion held by an expert qualified for the defendant, as I have indicated, that appears to have been dealt with in cross-examination. 6    It is all very well to refer to the energies expended by the plaintiff some days ago, and yesterday, to keep the report "out”. At the same time there was the expenditure of energies by the defendant to get it “in”. The reversal of those positions, in the light of yesterday's evidence, to the point where MFI 27, that is the “unabridged” 18 May 1998 report is excluded, would, at the very least, make a mockery of the quest for truth in litigation of this kind, even within the structure of the adversary system. The unabridged report of 18 May 1998, being the one presently marked for identification 27, will become exhibit G.

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Last Modified: 12/03/1999