Marsden v Amalgamated Television Services Pty Limited

[1999] NSWSC 1068

CITATION:

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1068

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20223 of 1995; 20592 of 1996

HEARING DATE(S):

26 October 1999

JUDGMENT DATE:

26 October 1999

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	In Person (Plaintiff) J S Wheelhouse (Defendant)
SOLICITORS:	Marsdens (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	On defendant's Notice of Motion seeking lists of plaintiff's witnesses
DECISION:	See paragraph 11

DLJT: 49
(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 26 OCTOBER 1999

JOHN MARSDEN
(Plaintiff)

v

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

JUDGMENT (On defendant’s Notice of Motion seeking lists of plaintiff’s witnesses)

1    HIS HONOUR: The defendant moves by Notice of Motion filed on 25 October 1999 for an order that the plaintiff provide to the defendant by 4 pm on 29 October a list of the witnesses that he intends to call, in the order in which he intends to call them, in respect of the issues of justification and qualified privilege raised. 2    The basis upon which the order is sought is said to be “fairness” made up of essentially two components: first, the elimination of surprise, and second, trial management. Directions have been given hitherto in relation to the provision by the defendant to the plaintiff of lists identifying its witnesses on the issues of justification and qualified privilege. A direction has been given to the plaintiff to identify his witnesses on the issue of damages. In respect of each of those issues, vis-a-vis the parties, each party respectively bears the onus. There is nothing remarkable within the conduct of this case that the parties be called upon to identify their witnesses on issues on which each bears the onus of proof, that is not only fair, but conforms with sensible trial management. 3    Additionally, with respect to the defence of justification, the defendant has provided proofs to the plaintiff. It is not necessary for me to be informed with precision this morning as to the extent of the provision of such proofs. The effect of the provision of such proofs inter alia has been dealt with by the ruling I delivered at 10.30 this morning (DLJT 48: NSWSC 1061). 4    As to the defence of qualified privilege in respect of which, of course, the defendant bears the onus, I repeat what I said in the course of submissions. My acquaintance with the nature and extent of the defendant's case on that defence is minimal by itself and minimal compared to the inevitable acquaintance I have gained of the defence case on justification. On any real view of the matter, the conduct of this case since 2 February 1999 has been concerned with the issue of justification. I accept that in the course of arguing the leave to amend application, Mr Wheelhouse did refer to aspects of the defence case on privilege. My focus however has been inevitably on the structure of the defence case on justification. 5    It is said, and I have no reason not to accept, that the defendant has particularised at great length its case on privilege. It is said that the defendant has answered up to a thousand or so interrogatories consequent upon orders I made earlier this year on that issue. The provision of the particulars and the answering of interrogatories conforms with rules of practice and orders made in connection with the defence of qualified privilege. There is nothing remarkable about that I gather though the defendant has a view that the burden placed upon it has been unusual. 6    I do not propose to make order 1 in the Notice of Motion as sought today. The orders hitherto made in relation to the delivery of witness lists conform with each party's onus of proof on the relevant issues and obviously point to utility in terms of management of the trial. 7    I have been informed by Mr Marsden that in excess of 130 people have been interviewed by him, or by people on his behalf, in respect of the defence of justification. That which the defendant seeks is a list of the plaintiff's witnesses to be called in rebuttal. That is to be distinguished from the onus of proof situation where it can fairly be anticipated that a party who has to prove a case on damages or a party who has to prove a case on privilege or justification knows what its case is going to be. A case in rebuttal, in the end, very much depends upon the case presented by the opposing party. 8    I am not persuaded of any unfairness to the defendant based upon a proposition: “Well, we have had to disclose our witnesses on our defences, it is only fair that the plaintiff disclose his witnesses in relation to both of those defences in relation to his case in rebuttal”. 9    As at 26 October 1999 I am not persuaded that there is any unfairness merely by reason of the regime presently in place. It has not, as it cannot be, been submitted that the conduct of the defence case on justification or qualified privilege is compromised by the defence being ignorant of the plaintiff's witnesses that may be called in rebuttal; in respect of each defence the defendant bears the onus. As a trial management proposition the management of the trial, or that component of it constituted by the defendant presenting its case on justification and privilege, cannot be compromised or prejudiced by the absence of a list of witnesses in rebuttal from the plaintiff. 10    Reliance was placed by the defendant on what is said to have been a concession made by Mr Reynolds SC for the plaintiff as recorded on page 28 of the transcript of 3 February 1999 and the use by Mr Reynolds of the expression "it cuts both ways". That was in the context of an application then made in relation to the identity of witnesses that they be dealt with in blocks. The situation as it existed on what was, in effect, the second or third day of the week set aside for pretrial directions before the commencement of the trial in February 1999 really cannot be said to apply now. 11    One context, as I understand it, was in anticipation of a perceived requirement under the Jury Act for witnesses to be identified before the jury was empanelled. That however was not the exclusive context. That at some time the defendant, both as a matter of fairness and in the interests of efficient trial management, may well have to be informed of the list of anticipated witnesses for the plaintiff must be acknowledged as, indeed, as I understand it, Mr Marsden does acknowledge. When that time will be, I do not now propose either to indicate or to rule. All I am now ruling is that I have not been persuaded that there is any basis for making the order sought in paragraph 1 of the Notice of Motion and I decline to do so.

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Last Modified: 10/29/1999