Marsden v Amalgamated Television Services Pty Limited

[2000] NSWSC 538

CITATION:

Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 538

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 20223 of 1995; 20592 of 1996

HEARING DATE(S):

14 June 2000

JUDGMENT DATE:

14 June 2000

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J at 1

COUNSEL :	I Barker Q.C. M R Hall (Plaintiff) R Stitt Q.C. J S Wheelhouse (Defendant)
SOLICITORS:	Phillips Fox (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	On application to adjourn cross-examination of plaintiff - T7202
DECISION:	Application refused - see paragraph 25

DLJT: 174
(Ex Tempore - Revised)
[2000] NSWSC 538

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE

WEDNESDAY 14 JUNE 2000

JOHN MARSDEN
(Plaintiff)

v

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

JUDGMENT (On application to adjourn cross-examination of plaintiff - T7202)

1    HIS HONOUR: The defendant seeks to adjourn the cross-examination of the plaintiff. That cross-examination commenced on 6 June. 2    The structure of a cross-examination is a matter in the hands of cross-examining counsel in accordance with duties to the Court and to the client, as is referred to, for example, in the judgment of Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543 at 556-7, that is the structure, form, content and order of the cross-examination. The ambit of the cross-examination, the structure of which is in the hands of counsel, is determined by issues relevant in the trial and evidence in relation to them. 3 The basis for Mr Stitt's applying to adjourn this cross-examination rests in his wish to perform his obligations and duty as the defendant's counsel in terms of the structure of the cross-examination but dependent upon and informed by proceedings listed in the Court of Appeal. The desired structure, as I understand it, especially in relation to matters of credit, is underpinned to a great extent by what has now been called "the Elomari tapes". 4    The defendant's case in relation to Mr Elomari on the plea of justification has been presented fundamentally by the testimony of Mr Elomari. The defendant's case in relation to matters that may go either to the plaintiff's credit or to matters of fact on “admissions by conduct,” and thus the relevance of “the Elomari tapes” themselves, at present can only be gleaned by myself from those particulars of “admissions by conduct” handed up in Court on 22 February. 5    The present reality is that the Elomari tapes are not in evidence in this trial. Second, the Court of Appeal, on 16 June, will be hearing a summons for leave to appeal in respect of several of my rulings, treating the leave application and the substantive appeal as one, as I understand it. 6    Next, in the event that the Court of Appeal does something favourable to the defendant on the issue, in the normal course leave to reopen the defendant's case would, I would venture to suggest, inevitably be granted. Admissible evidence would then be received, the plaintiff would be granted leave to reopen his case in reply and cross-examination, after any evidence given in chief in that reopened case in reply, would then take place. 7    Next, in the event that the Court of Appeal does nothing favourable to the defendant to permit the course that I have just outlined, some status quo must then persist. 8    The status quo at the moment can be summarised in this way. The plaintiff chose not to give evidence in his case in chief, inter alia depriving the defendant of the opportunity of putting to the plaintiff in chief the defence case. The defence case was opened and closed and does not contain any evidence of “the Elomari tapes”. The plaintiff's case in reply to the defence case has opened, the plaintiff's evidence-in-chief is over. 9    In general terms, the plaintiff's position vis-a-vis the case made by the defendant or sought to be made on the evidence called in the defendant's case, is denials supported by or to be supported by independent objective evidence. 10    Next, as I have said, the cross-examination of the plaintiff has been conducted since 6 June and various areas, particularly in relation to the plaintiff's credit, but not exclusive of some areas of fact, if I might so describe them, have been dealt with. 11    In the normal course of events, absent any such intervening consideration as “the Elomari tapes” issue by itself or being one for the Court of Appeal, the nature and extent of the cross-examination of the plaintiff in the face of the stand taken by the plaintiff would be a matter for the defendant’s counsel. The Court, in those circumstances, could not be called upon in advance to rule on, for example, Browne v Dunn considerations. The applicability of that rule, as explained by Hunt J in Allied Pastoral Holdings v The Commissioner of Taxation (1983) 1 NSWLR 1, would be considered at the appropriate time - if not at moments arising during the course of cross-examination, then during the course of submissions at the close of the evidence. 12 Bringing back into the equation “the Elomari tapes” component, I am not persuaded that the situation is otherwise. I cannot be called upon to rule in advance as to the effect of any approach Mr Stitt decides to take in the face of the plaintiff’s denials in the blanket sense or denials in the blanket sense plus independent material. 13    Next, the matters before the Court of Appeal have, to a very great extent, enjoyed the support of both parties in their presentation to that Court and to an extent, as far as I am able, I too have sought to facilitate the disposition of “the Elomari tapes” issue in that court. 14    Next, the outcome of the proceedings in the Court of Appeal, to state the obvious, will not be known until it occurs, nor will it be known, certainly until Friday, when any such outcome is likely to take place. 15    It would be inappropriate and improper for a trial judge in any way to seek to provide any input, or otherwise affect the manner in which the Court of Appeal conducts its business, arising from the trial over which that judge is presiding. 16    In the course of further submissions after lunch, I was referred to the various statements made by counsel and the learned President, as recorded in the transcript of proceedings before his Honour on 31 May. I cannot form any concluded view - and it might be presumptuous of me to seek to do so - as to what anyone had in mind there in terms of the interrelationship between the Court of Appeal's hearing the summons for leave, and the further conduct of this trial. 17    There might have been perceptions and understanding on the part of the President and counsel in his court on 31 May which are unknown and can never be known, nor can I presume to state the extent to which the learned President was then seized of all that was likely to be involved in the disposition of the leave application, and the issues to which it would give rise. 18    I am therefore not persuaded that what took place on 31 May took place in anticipation of, or on the assumption that there would be, an interruption to this trial. 19    Whilst the resolution of “the Elomari tapes” issue in the Court of Appeal is a matter of importance, my present view is that it enjoys a discrete status, which can be accommodated in the event of the ruling favourable to the defendant, by the model or structure to which I referred earlier. 20    I appreciate - as I said before lunch, and have said already - the obligation and duty on the defendant’s counsel in terms of his command of the structure of his cross-examination. That duty and that obligation is important and precious, but the exercise and discharge of it must be viewed in the context of this extraordinary trial. 21    I have been troubled by this application but, in the end have not been persuaded that the discrete issue of “the Elomari tapes”, which are not evidence in this trial, is such that to refuse the application made by Mr Stitt would compromise the duty he has to his client, the duty he has to this court, or the continuation of such cross-examination that he chooses to pursue. 22    The structure of this trial, which I outlined earlier, as Mr Stitt said, is unusual. It involves matters no doubt that could be argued to be to the prejudice, in the end, of the plaintiff. It involves, no doubt, matters that could be argued as being to the advantage of the defendant. But I am not persuaded that the election made by the plaintiff not to give evidence in the case in chief brings it about that the defendant should have that which is sought, namely the adjournment of the cross-examination, when I am not persuaded that the cross-examination in the holistic sense that seems to be advanced by Mr Stitt, is dependant upon the resolution by the Court of Appeal of a discrete matter that presently plays no part in this trial. 23    It was submitted that if the cross-examination was to proceed in a way that would involve Mr Stitt, should he choose to do so, putting to Mr Marsden, for his rejection or denial, each and every component of each and every part of the defence case (which the plaintiff has denied globally), then should the Court of Appeal decide “the Elomari tapes” are admissible, he would have to go over the whole ground again on the issue of credit. Of that I am not persuaded either. 24    The real mechanism for dealing with any result from the Court of Appeal beneficial for the defendant, is the reopening of its case, followed by that of the plaintiff, during which, dependant upon the quality of this new evidence, the most vigorous attack presumably could be made upon the plaintiff's credit in such a way as to cover the field that thitherto, in the normal course, would have been covered in the balance of cross-examination. 25    Otherwise to repeat the acknowledgment of all the peculiar features of this case in terms of its structure, and the importance of “the Elomari tapes” issue and the Court of Appeal, would be bordering on condescension. They have been clearly recognised, but nonetheless for the reasons I have stated, I decline the application.

***********

Last Modified: 09/26/2000