129 I have held Mr Angus to be without fault in terms of the lateness of the issuing of the subpoena, though I have also held that the defendant knew about D1 to D6 and D15 and D16 by December 1998. That, one would think, would be the end of the matter. I hold that the plaintiff is blameless. This issue is of minimalist importance in my view. There are far more important issues determinative of the defendant's application.
130 The eighth factor is that the defendant has stated in evidence that it was unaware of the fresh allegations not only at the time of the broadcast but also up until 11 February when it inspected the documents produced by the Police. It is stated for the plaintiff that the authorities indicate that a relevant matter to be taken into account by the Court on an amendment application to plead truth at the last minute (which is not the case here: the defendant has always justified - this is an application to amend its case on truth), is the defendant being unaware of the fresh allegations at the time of the initial publication.
131 There is cited on behalf of the plaintiff a statement made by Stocker LJ in Atkinson v Fitzwalter at 221D "… it behoves a defendant to be in possession of all the relevant facts in support of a contention before he makes the defamatory statement and he cannot be allowed to amend on the basis that his statement was unsupported by evidence known to him at that time". It is suggested that that "principle" applies the more so in the light of the imputations the jury have found, the defendant having stated in terms in both broadcasts that the imputations are true, the defendant having repeated the imputations in a second program and having admitted that it intended to convey the imputations (presumably in interrogatories).
132 This is an extraordinary position for the plaintiff to take: it can be of no relevance to the issue of whether or not the defendant should be granted leave to amend its defence of justification. The defence of justification is not limited to the facts known to the publisher at the time of publication (Maisel v Financial Times (1915) LT 953). The substance of the imputations has always been the subject of a plea of justification. The defendant is seeking to amend its case on that issue. I have accepted the defendant's position that the delay (of three months) in the issuing of the subpoena was without fault in the circumstances. I indicate now that I am persuaded that the defendant cannot be criticised for want of promptitude in seeking leave. I am persuaded that the evidence fails to expose a reasonable basis for asserting that the information was or would have been available to Channel 7 before 11 February 1999. I reject this eighth basis advanced for the plaintiff.
133 The ninth factor is the defendant maintaining it still has a viable defence of justification. This is clear from Mr Angus' evidence. The present application does not involve a situation where the defendant will be wholly prevented from mounting a defence which might have led to a successful result for it in the proceedings, so it is submitted. It might be one thing if the defendant had never mounted a defence of justification prior to the trial and had discovered at the last minute that the allegations it had made were true. Even then the Court would be reluctant to grant the amendment, so it is argued.
134 The plaintiff submits that in the present case the defendant said in both broadcasts that the allegations were true and that it was in possession of sufficient facts to justify the imputations clearly conveyed. It is said that the defendant has D1, D2, D3, D5, D6, D13, D15 and D16 with which to run a complete defence of justification. For that reason alone the amendments should not be granted. The defendant is not being prevented from running a defence. It has had a defence of justification and has had one for years. If, on the other hand, it has no faith in its defence as previously pleaded it should not be permitted to "throw mud" at the plaintiff.
135 The defendant contends, as I have indicated, its entitlement to run a "full" defence in accordance with authorities and principles that ensure that the public interest is served in a fair hearing in which it is afforded the opportunity to present a case in full (cf. TCN Channel Nine Pty Limited v Antoniadis (supra) at 691D, 694C, 695C - E). It is to be borne in mind however that relevant to the Court of Appeal's consideration in Antoniadis was the fact that the defendant did not rely on any new facts in support of the proposed defences and there was no suggestion that allowance of the amendment would have caused an adjournment (this is why the Court of Appeal held that my discretion had miscarried). It is said for the plaintiff that in the present case there is a myriad of new facts which will be used to support the new "defences" and these new facts and allegations will cause an adjournment in mid-trial for at least six months.
136 Leaving to one side the determination, in the event that it arises, of the length of any adjournment, I am of the view that the defendant is perfectly entitled to take the position subject to all relevant considerations founded in principle that it must be able to present its full case. It is no answer to say "well, you've got D1 to D16, what more do you need?" The defendant is entitled, in my view, as a matter of principle to seek to present its full case. If the defendant is otherwise entitled to amend, it would be an extraordinary state of affairs for it to be confined to all that was perceived to be "needed" rather than to be in a position to advance all in support of a defence, (cf . Lord Denning MR in Associated Leisure), thereby being deprived of the opportunity to litigate matters that might have ensured that there was a complete answer to the plaintiff's claim. I see no merit in this component of the plaintiff's opposition.
137 The tenth factor raised is the risk of the plaintiff's witnesses dying. There is simply no evidence in advance of the position that was placed before the Court on the expedition proceedings.
138 The eleventh factor is case management principles in the Defamation List.
139 It is stated that as noted by Dawson, Gaudron and McHugh JJ in J L Holdings at 155, "case management, involving as it does the efficiency of the procedures of the Court was in this case a relevant consideration". In J L Holdings a relevant issue focussed upon by the trial judge was the loss of the hearing date and the High Court held that in the circumstances there was no real likelihood of this. The plaintiff submits that in the present case the loss of the hearing date is a relevant consideration.
140 If the defendant's application succeeds and terms are imposed, the hearing date has not been lost but the continuation of the hearing rather will be adjourned. As I have remarked earlier, the continuation of the hearing of this case will be the continuation of the hearing of Mr Marsden's matter with the benefit of its status as an expedited one and that factor will be taken into account in the event of the allowance of the amendment and management being required.
141 The submissions otherwise advanced for the plaintiff under this heading are rhetorical. They really amount to an assertion that a case having gone through the Directions procedure of the Defamation List and being allocated a hearing date will enjoy a status whereby a defendant simply should not be permitted to amend or in some way will undergo closer scrutiny than the application of the usual principles commands. I do not agree. It is unwise, in my respectful view, to make sweeping statements about the conduct of media defendants in invidious comparison to any other litigants in the List in relation to their litigious behaviour vis-a-vis plaintiffs. Equally it is unwise to make broad statements of policy that will apply inflexibly merely because the matter is a defamation matter and has gone through the List.
142 Case management, in my view, should not prevail over the justice of the particular application. Insofar as the plaintiff was trenchant in his criticism of the defendant as an exemplar of media organisations one could, with facility, be critical of the plaintiff for embarking upon the amendment of its imputations. If, as is submitted, late amendments by defendants to justify are the "bane" of the Defamation List, that charge also can be levelled at the tiresome frequency with which plaintiffs amend their imputations at or shortly before trial. An amendment of the imputations, viewed objectively is really a fundamentally more serious step: the plaintiff is seeking to change the very causes of action on which that plaintiff is suing. Any change made as a result of a legitimate application to amend has immense flow-on effects not the least reason for which is that the imputation is the starting point. I do not consider it appropriate to descend into the arena on this issue as I do not consider it appropriate to make "policy" statements in the conduct of the Defamation List as opposed to procedural directions.
143 The amendments to the Defamation Act 1974 in 1994 permit a degree of flexibility. A jury comes and performs its function and it goes: all other issues are left to the trial judge. The Court is therefore not faced with the practical problem of having present a jury whilst contentious matters of law are dealt with. The mere availability of such flexibility however, should not be understood as permitting "open slather" by either plaintiffs or defendants in terms of seeking amendments. The feature of the flexibility is in the management of cases generally but in particular in those trials where amendment applications are legitimately made and granted.
144 In the instant litigation it has been made clear to the parties that it is the desire of the Court, that is of the Common Law Division, that the trial of this action be completed as soon as possible. In the "early days" that desire was expressed in terms that it is the hope of the Court that the trial of this action will finish in 1999. At the end of six months the only component of the "trial" has been the finding by the jury that the publications conveyed defamatory imputations (after a hearing that is measured in mere days).
145 In the context of "case management" and in the event of the amendment being allowed, that factor together with the fact that the case is an expedited one will be accommodated in directions as to the further management of the "hearing" of the trial.
146 The observations I have made above about the non-desirability about making statements of "policy", I have made in full knowledge of the announcement by Hunt J (as he then was) on 14 October 1988 which was cited by Badgery-Parker J in Jones v TCN Channel Nine at 9. His Honour's announcement cannot constitute binding authority and I do not consider that it purports to do so. His Honour was stating general principles of particular concern in the operation of the Defamation List.
147 The plaintiff contends that if the Court allows the defendant to amend its defence in this case there will be almost no situation in which an amendment of this kind will be refused. I do not accept this proposition: it smacks of a "floodgates" argument. If the defendant succeeds in this application it will be on the basis that it has made out a case for amendment on the evidence in accordance with the principles that apply. If it fails it will be for reasons to similar effect. The principles will apply to any application for amendment, the outcome will depend upon the factual material and the application of those principles to the found facts.
148 The twelfth factor is said to be the prejudice to the plaintiff which cannot be compensated by costs. It is, of course, in the discretion of the judge to make an order for costs appropriate to the circumstances of the amendment. These may include an order for costs in relation to the application for leave to amend itself; the costs arising from or occasioned by the amendment or costs thrown away by the amendment, including any adjournment. It will be open to the judge to make an order that the costs be subject to assessment forthwith.
149 Insofar as it is alleged that a costs order will not compensate the plaintiff for any personal stress he endures as a result of the amendment and any adjournment, it is to be borne in mind that the stress and anxiety the plaintiff undergoes in the course of the litigation as a whole is a factor that can be taken into account in the assessment of general damages.
150 I am not persuaded that the plaintiff's submissions elevate this component to the level indicated. It is a matter that is taken into account generally in an application of this kind and is one amenable to appropriate orders of the Court upon its disposition.
151 The thirteenth factor is the defendant's intention to overreach.
152 In J L Holdings, at 153, Dawson, Gaudron & McHugh JJ quoted with approval the statement, cited above, by Bowen LJ in Cropper v Smith where his Lordship said that the Court would not allow an amendment if it formed the view that the amendment was "intended to overreach" the other party. The plaintiff submits the present amendment application is made with such an intention. The plaintiff's submits that if the Court forms the view that the defendant is deliberately attempting to strain the plaintiff's emotional and financial resources for tactical reasons the Court will disallow the amendments.
153 It is not in dispute that the defendant has been in possession of most of the plaintiff's psychiatric evidence and it is asserted that the defendant has been aware of what the plaintiff asserts to be his dire psychiatric state. Any tactics adopted by the defendant must be viewed in the light of its knowledge of the plaintiff's vulnerability in this regard.
154 The plaintiff further contends that the defendant also knows that the longer the case goes on, and the greater the time spent in preparation, the less likely it is the plaintiff will be left with any money in his hand at the end of the case even if he wins. This will arise because there is a clear differential, it is said, between the costs incurred by a plaintiff and those which are obtained upon assessment.
155 The purpose in bringing defamation proceedings is to attain a solatium for hurt to feelings and compensation for the fact that the plaintiff's reputation has been damaged. It is important that such proceedings be resolved quickly; the risk being that if they are drawn out the purpose of bringing them is defeated. The plaintiff submits that if one starts from the premise that if the Court formed the view that the reason for the large number of complaints was to pressurise the plaintiff it would decline the amendments. That premise is critical.
156 The plaintiff submits that various matters show that the defendant's intention in pursuing the amendments is to overreach rather than to raise allegations which the defendant believes are likely to succeed.
157 It is contended that there has been no full investigation by the defendant of the allegations relating to D17 to D25. It is further put that the defendant has not attempted to "sift" or to select a number of the allegations from D1 to D6, D13 to D16 and D17 to D25 on the basis that it cannot be that all of these complaints are of equal merit. There is no reason why the defendant should not be put in a position where it has to elect which allegations to press and which to forego. If the defendant does maintain that all the allegations are likely to succeed, it is no doubt content, so it is asserted, for a special costs order to be made in relation to the costs occasioned by any particular of truth which is rejected (and on the basis that this order will be made come-what-may). This is disputed by the defendant.
158 It is said that the evidence shows that Mr Angus deliberately held off notifying the plaintiff in relation to the new amendments respecting D13 to D16. He no doubt knew, it is submitted, that the plaintiff would want time to investigate these matters and yet deliberately put him in the position where he either had to seek an adjournment of the proceedings or else proceed with the case without proper investigation of the particulars relating to D13-D16. (See Exhibit 11 tabs 18 and 25; affidavit of Mr Angus dated 4 February 1999).
159 The defendant submits that that submission is not open and indeed, is not supported by the evidence and that such evidence as there is to the contrary (T541.15-30). The proposition itself was not put to Mr Angus in cross-examination. In any event the evidence is that the plaintiff has extensively investigated the allegations made by D15 and D16. In the context of overreaching, the defendant's submissions in relation to D13 to D16 to the effect that the evidence clearly establishes that the plaintiff knew of the allegations long before the defendant did and was well able to meet them and had marshalled information to attack them for the purposes of putting material before Mr Woodhouse, must be taken into account.
160 The plaintiff asserts the defendant is aware that the allegations involve matters of antiquity, that the investigation and preparation of such a case involves extra preparation and cost, and that the increase in the length of the case by reason of the fresh allegations will greatly distort the difference between the costs which are payable on assessment and those which are actually incurred. This is disputed by the defendant: no evidence being offered in support by the plaintiff.
161 Further, it is submitted, that the defendant is well aware of the weakness of many of its allegations made in its particulars of truth.
162 The plaintiff suggests that the Court will form the view that there has been absolutely no attempt by the defendant to abbreviate this amendment application and again, the differential between the costs which are payable on assessment and those which are payable between solicitor and client are here relevant.
163 Many of the allegations made in the particulars are "scurrilous" and I will deal the submissions in that regard in due course.
164 Further, reliance is placed upon what is asserted to be the "holding off" of issuing a subpoena to the Police until just before the trial (as to which see my findings above).
165 The defendant has made late amendments to the particulars in relation to D1, D2 and D6 and in particular, the amendments show that there has never been any proper preparation of this component of the case.
166 In the light of these matters, if accepted, the Court may infer that the defendant is using the amendment application as part of the general tactic to try to overreach the plaintiff. If the Court concludes that this is the case, the amendment application should be declined.
167 The defendant maintains its position as to what is meant by intended to overreach in that it is submitted that for the purposes of an application to amend the relevant consideration is whether or not the evidence establishes the application is made mala fides (cf. Douglas v John Fairfax & Sons Pty Limited (1983) 3 NSWLR 126 at 135C and Jones (supra) at 5). It is the general submission of the defendant that there is no evidence that the defendant or its representatives have acted otherwise than bona fides in relation to this application.
168 Further, although it was put to Mr Angus in cross-examination that he delayed in issuing the subpoena to disrupt and delay the proceedings (T857.1, T534.35), he denied that he knew at the time when he issued the subpoena it had the potential to interrupt the proceedings by causing extensive delay. It was not put to Mr Angus that he had not given truthful answers in cross-examination and thus his denial should be accepted.
169 With respect to the submission made by the plaintiff that the present amendments are made with the intention to overreach the plaintiff the defendant responds that it is not open to the plaintiff to so submit. It was not put to Mr Angus that the defendant's purpose in applying to add particulars to its defence was mala fides. It was not suggested to Mr Angus that he was not of the honest belief that the application to amend was for the legitimate purpose of the defendant resisting the plaintiff's claim for damages.
170 The defendant, of course, does not accept that the claim made that the plaintiff is suffering a "major depressive episode" of such magnitude that he is disabled from prosecuting the litigation.
171 The submission that the defendant knows that the longer the case goes on for the less likely it is the plaintiff will be left with any money is met with the proposition that such a submission is not open to the plaintiff. It was not put directly to Mr Angus that his manner of conducting this litigation on behalf of the defendant was to deliberately financially exhaust the plaintiff or that he had adopted an illegitimate tactic for the purpose of causing the plaintiff to incur unnecessary expenditure. The defendant submits there is no evidence upon which the Court could make a finding that if the plaintiff was successful and obtained a costs order in his favour he will not adequately be compensated for costs.
172 The importance of having a rapid resolution of the litigation should not prevail over the need to ensure that resolution is of all matters in issue at the trial on the merits, so submits the defendant. There is no evidence upon which the Court could come to a finding that the reason why the defendant particularised several complainants was to "pressurise" the plaintiff. The evidence is to the contrary (T542-543). The defendant carefully chose which complainants to particularise (T931). Further, it appears Mr Woodhouse's report to the DPP does contain a complainant not in fact particularised by the defendant.
173 As to the suggestion by the plaintiff that various matters point to the defendant's intention to overreach him, Mr Angus denied that he did not have sufficient material to plead and maintain a plea of justification, asserted that the he did exercise caution (T541.34-542.40; T892.39-893.57; T894.35-894.38; T895.32-895.36; T896.54-897.20; T897.30-897.32).
174 I have considered the evidence generally and specifically. Mr Angus was thoroughly cross-examined, was firm and candid in his responses and I accept his testimony. These matters of intended withholding, delay and intentional conduct I find not to have been made out.
175 At the time an application to amend is made there is no way of evaluating the evidence which may subsequently be called to support the case of which particulars are given. The quality of the evidence is always for determination at the trial: Tedeschi (supra) at 12. In a defamation case the plaintiff may ask that a defendant's conduct be taken into account only if it demonstrates a lack of good faith or is improper or unjustifiable. However, "the vigorous persistence in a legitimate defence cannot be used to aggravated the damages. The manifest unfairness of any contrary view is obvious": Steele v Mirror Newspapers Limited (1974) 2 NSWLR 348 at 379D per Samuels JA.
176 As to the allegations as to deliberating withholding the issue of the subpoena this has been dealt with above and I have made my findings.
177 With respect to the late amendments made to D1, D2 and D6 Mr Angus gave an explanation therefor at T932 on which he was not cross-examined. I accept his testimony.
178 In response the plaintiff identifies his central submission as that the defendant in the amendment application is "attempting" to overreach him. I presume the plaintiff is being consistent here. The plaintiff hitherto has asserted the defendant is "intending" to overreach. I take this expression in the written submissions to mean no more than the defendant is intending to overreach or intending to attempt to overreach. The key point, the plaintiff says, is that the Court is not dealing with the situation where a dozen potential complainants were provided by the Police and where the defendant has carefully looked at each one and decided to plead (say) three complainants which it asserts are credible. Instead, the defendant has simply thrown every allegation that it can at the plaintiff. Many of the allegations are obviously flawed, it is said; however, the defendant submits that it is entitled to force the plaintiff to "spend many tens of thousands of dollars investigating these complaints, adjourn the hearing of this case and face up to a trial which will probably be three times longer by reason of these additional allegations". I find this somewhat rhetorical and question-begging: the defendant has the right to seek leave to amend to present a case or in the instant application, an additional or expanded case in support of the plea of justification which has always been on the record. The defendant can take the view and take the view at its peril, that each and every one of the proposed new allegations is viable and credible.
179 In any event the plaintiff persists in asserting that the matters just referred to come on top of a variety of other circumstances which add to the "pressure" put on Mr Marsden. These matters include his fragile psychiatric condition (which will be dealt with later); the difference between actual costs and costs on assessment which differential increases the longer the period of preparation and hearing (there is no evidence in this regard and in any event, an order for costs can, in my view, ultimately accommodate this problem if it exists).
180 A further matter on top of everything else is asserted to be that the very "amendment application itself has been stated to be approximately four weeks longer than most defamation trials". It is certainly the longest interlocutory amendment application in my experience. It has certainly, in its duration, exceeded defamation trials over which I have presided. The length of the application can be viewed as no more than a fact of life during the course of this hostile and vigorously contested litigation; the defendant proposed to amend, sought leave to amend, the application has been vigorously contested and as it so happens took about eight weeks. There, that aspect can rest.
181 The plaintiff submitted that the defendant should be invited to nominate which of the allegations from D13 to D15 it believes are most likely to succeed (a suggested invitation, it is to be noted, made in the context where no opposition is advanced to the amendments incorporating D13 to D16). If the defendant, it is said, is not in a position to say which ones are most likely to succeed, that is an additional ground for refusing the amendment application. If on the other hand, the defendant is able to indicate which allegations have a strong likelihood of success, it should be invited to rely upon those allegations and those alone in the particulars which it seeks leave to add. It is the defendant's refusal to "prune" its case which is most indicative of the defendant's intention to overreach. What reason, it is asked, can the defendant have for pressing all of these allegations in this situation other than the stringing out of the plaintiff?
182 The short answer, as I have already indicated, is the defendant's belief that it is entitled to present its full case, it is aware of the perils of presenting a weak case but it should not be shut out, all other things being equal, from presenting that case in its possession to meet the plaintiff's claim for damages. If the leave amendment application is successful, the quality of the evidence will be determined at the trial, the outcome of which determination might have a profound effect on the ultimate outcome of the litigation. I reject therefore the plaintiff's submission as to the defendant failing to "prune" its proposed case.
183 The plaintiff urges upon the Court the need to be astute to prevent large media companies from engaging in tactics which render the whole purpose of proceedings futile. I agree. When I say "I agree" I say no more than that the Court should be astute to ensure that no defendant (or indeed, plaintiff) engage in tactics which render the whole purpose of proceedings futile. As I have made clear above, I am not prepared to make sweeping statements in the course of a judgment as to the conduct of media corporations in defamation actions.
184 In relation to the question of costs the plaintiff relies upon the failure of the defendant to suggest that it is prepared to submit to such a costs order. The defendant, in my view, is entitled to abide the outcome of the application.
185 It is further submitted by the plaintiff that the defendant's submissions that Mr Angus did not deliberately hold off anything in notification of the plaintiff with respect to D13-D16 is without foundation. It is positively asserted by the plaintiff that Mr Angus did hold off. The evidence, it is said, discloses that the defendant through Mr Quail was investigating allegations concerning D13 and D15 prior to 2 October (Mr Woodhouse affidavit 2 March 1999 annexure E). The same evidence discloses that on that day the defendant through Mr Quail learnt that both D15 and D16 were "police witnesses" against the plaintiff. The defendant made contact with D13 and D15 no later than 10 and 11 November 1998 (Mr Angus' affidavit 4 February 1999 paragraphs 3 and 13), and took their signed statements on 9 and 11 December 1998 (Mr Angus (supra) paragraphs 7 and 14). The particulars concerning D15 were notified to the plaintiff on 6 January. When the plaintiff finally got a copy of the 11 December statement provided by D15 on which the 6 January particulars were based (Exhibit 11, tab 18), it became clear that Mr Angus's statement that the particulars based on the statement were provided as soon as possible was false: the proposition advanced by the plaintiff is simply that the particulars could have been drafted by anyone in five minutes. There is some ingenuousness, I respectfully suggest, in this proposition advanced for the plaintiff. When one views the chronology realistically, the submissions is without merit.
186 The remaining factors out of the original seventeen are fourteen - subpoena to the Police was an abuse of process; fifteen - documents obtained as a result of an agreement to abuse the process of the Court; and sixteen - breach by the Police of their duty to notify the plaintiff of the subpoena and the proposed agreement. It is appropriate that these matters be dealt with on the question of the subpoena.
187 There is the additional ground namely, seventeen which has already been referred to, namely the antiquity of the allegations and the difficulty of investigations.
188 It is said the fresh allegations involve matters going back to the 1970s. This is apparently the case on an overview of all the particulars. In that situation the plaintiff submits the words of May LJ in Atkinson v Fitzwalter at 210 are apposite: "it must be remembered that fraud is a very serious allegation to make against a person, as for instance, would be an allegation of criminal offence and may, if not raised at the outset, be difficult, if not impossible, properly to investigate at a later stage in the proceedings".
189 In relation to this seventeenth factor the plaintiff says that he has had enough difficulties in trying to investigate the allegations made against him in the four years since the proceedings were first commenced. It is simply not fair to him to postpone the hearing indefinitely so that Channel 7 can see if they can put together a case that they have already had four years to investigate and which involve allegations which stretch back ten to twenty five years.
190 This reverts to the "premise". As by now should be clear I do not find the defendant intentionally to be overreaching the plaintiff (even taking into account some of the scurrilous particulars to which I refer below). The fundamental reality as I find it on the evidence is that the information came to the defendant late; it was not otherwise available earlier. Such information, for example, relating to D15-D16, was not deliberately withheld from the plaintiff who, in any event, could not have been surprised thereby. It is not a case of the defendant "seeing if it can put together a case". It is, as I see it, in context, a bona fide application for leave to expand an existing case of justification which it is free to make.
191 The amendments concerning D17 are not consented to. Although the plaintiff still has much to do, it is said, to prepare to meet a case involving D17, it is not asserted that this prejudice is the reason why this amendment should be disallowed. Thus, of the seventeen factors relied upon in relation to the other amendments, all factors are relied upon except the need for a lengthy adjournment. There is one caveat: if amendments are made other than in relation to D1, D2, D6, D13-D16 then a lengthy adjournment will be required. In substance therefore, D17 is in the same category as D18-D25.
192 The allegations in relation to D1, D2 and D6 are the subject of the plaintiff's Motions filed on 7 May 1999 to disallow certain amendments purportedly made by leave but which were not in fact "consequential". Further amendments were proposed in relation to D6 in the First Consolidated Particulars of Truth of 18 February and then by letter dated 17 March. These allegations have all been changed which changes are "presumptively prejudicial" and time consuming. For example, in relation to D1, the allegation is now dated at mid-1976 were as it was formerly dated January 1975. As to D2, by way of further example, this was formerly 1979 which was then changed to 1975 and then May 1975 (with a change of birth date from 1965 to 1961). As to D6, the allegation originally related to an unidentified place at some time between 1982 and 1988; then Easter in 1984 at Noosa; then Easter in 1983 at Noosa; it is now 1982 at some unspecified place.
193 It is contended that these variations represent an irresponsible approach on the part of the defendant and are indicative of a failure properly to check dates or otherwise to make proper inquiry. The evidence is (T932) that the defendant's solicitors had no contact with D6 until February 1999. It is submitted that if a basic check had been made as to D6's age it would have been realised that the allegations in the original particulars even if proved to be true could not prove the truth of the imputations because D6 was 18 at the relevant time. Thus, it is argued that the amendment should be disallowed or alternatively, taken as evidence that the defendant is trying to overreach the plaintiff. I reject both submissions. The plaintiff has consented to these amendments. The "changes" no doubt will be matters which will confront the defendant at trial.
194 The defendant's response is that as to D1, D2 and D6 Mr Angus was not cross-examined upon the evidence he gave at T932. As to D13 and D16 in circumstances where the plaintiff had had ample opportunity to investigate these allegations, no condition should be attached to the amendment as sought by the plaintiff. In this regard see the letter of 14 October being annexure B to Mr Lee's affidavit of 28 April 1999 and the letter of 20 September 1998 being annexure C to Mr Woodhouse's affidavit of 2 March 1999. I accept the defendant's contentions in this regard.
195 The plaintiff also contends that the amendment should be disallowed by reason of scurrilous allegations in the particulars and they themselves represent an intention on the part of the defendant to overreach the plaintiff.
196 It is to be borne in mind that the plaintiff's imputations set out at the beginning of this judgment are concerned with sexual intercourse and the defendant's contextual imputations are concerned, as to the first program, both "homosexual intercourse" and "sexual intercourse" and, in relation to the second program, with "homosexual intercourse".
197 The Second Consolidated Particulars open with a preamble which purports to define "homosexual intercourse" to include anal penetration, fellatio, the continuation of either of those forms of intercourse, mutual masturbation and the striking of a male person by another male person during sexual intercourse or as part of foreplay to sexual intercourse. The plaintiff is prepared to accept that the ordinary meaning of intercourse in the context of any of the imputations can only be anal intercourse or fellatio or the continuation of either. Recourse to the Oxford Dictionary and the Macquarie Dictionary to elicit some definition that speaks merely of "sexual gratification" does not satisfy me. I have no difficulty at all in coming to the conclusion that where "homosexual intercourse" or "sexual intercourse" is referred to in the imputations, according to its ordinary meaning, it has only one of the first three "connotations". "Mutual masturbation" and "striking" cannot be "intercourse" but evidence thereof may be admissible in respect of activity constituting the first three "connotations".
198 Indeed, I will go so far as to say they are the only meanings the imputations can have as arising from the programs telecast by the defendant. They are the only meanings the imputations do have. There is absolutely no room for manoeuvre as far as questioning the meaning of the imputations.
199 As was stated in TCN Channel Nine v Antoniadis (1998) 44 NSWLR 682 at 7202F "the proper function of particulars is to limit the issues under the pleadings and inform the opposite party of the case he has to meet. In general a party providing particulars need not disclose the evidence on which he relies but particulars may have this effect". Their Honours then went on to cite with approval the statement of Isaacs J in The Queen v Associated Northern Collieries (1910) 11 CLR 738 at 740-741. This statement of principle also conforms with the statement in Dare v Pulham (1982) 148 CLR 658 at 664.
200 Mr Stitt Q.C. who argued this aspect of the application for the defendant placed reliance upon what Hunt J said in Sims v Wran (1984) 1 NSWLR 317 at 321G: "there is often a fine line between giving particulars of the case which a party proposes to make and disclosing the evidence by which that case is proposed to be proved. It all depends on what is necessary to guard the other party against surprise. If the other party cannot be otherwise so guarded, it may sometimes be necessary for a party to disclose his evidence, or at least a broad outline of it. The starting point is what is necessary to guard the other party against surprise; the starting point is not what can be said without disclosing the evidence to be lead. It is however important to emphasise that, ordinarily speaking, particulars are concerned with the nature of the case to be made by way of evidence; …"
201 That is, the case to be made by way of evidence on the particular issue. There must be some logical connection between a fact, matter or circumstance particularised and, if it is proved, the issue to which the proof of such fact, matter or circumstance goes to establish. To shortly state an example: if it is particularised that on day X the plaintiff had anal intercourse with person Y at place Z and those facts are proved, their proof will logically be connected with the substantial truth of one of the imputations. At the other extreme, as exemplified by Mr Reynolds in argument, a particular that whilst in London in 1975 the plaintiff shot a brown dog would obviously have no rational connection at all with that ultimate issue to be proved.
202 I have already remarked upon the obvious meaning of sexual intercourse involved in the considerations of the imputations and contextual imputations. One component of many of the particulars attacked by the plaintiff is the reference to "sexual activity". To state that "sexual activity" took place between the plaintiff and X is a totally insufficient particularisation of a case in support of the substantial truth of the relevant imputations.
203 A further component of this segment of the argument on the amendment application is what clearly appears to be an attempt by the defendant to rely upon "tendency" evidence.
204 Mr Stitt argued that Part 3.6 of the Evidence Act 1995 (NSW) has no application in the instant litigation because character, reputation, conduct or tendency are facts in issue. There is thus no requirement that the notices referred to in s 97(1) will be required. Regulation 6(2) requires that the notice must state the substance of the evidence of the kind referred to in the subsection and if that evidence consists of or includes evidence of the conduct of a person particulars of the date, time, place and circumstances at or in which the conduct occurred and the names and addresses of each person who saw, heard or otherwise perceived the conduct so far as they are known to the notifying party. Even if Mr Stitt is correct in asserting the non-application of Part 3.6 of the Evidence Act 1995 (NSW) to the circumstances of this case, (which I presently do not decide) the requirements of the notice just referred to pretty well indicate the kind of particulars that the defendant is obliged to give.
205 The first component of the Second Consolidated Particulars attacked by the plaintiff was item 20. Mr Stitt Q.C. for the defendant conceded that standing by itself this set of "particulars" would not "stand a snowball's hope in hell". It has the same level of hope, in my view, even included with the other particulars and cannot be saved by seeking to convert it into some form of "summary" or "conclusion" based upon that which precedes it. I do not propose to repeat the terms of paragraph 20. I merely note that it covers but twenty four years, does not discriminate between ages of boys let alone when. I accept the plaintiff's submission as to item 20 as a set of scurrilous particulars. Item 20 will be "struck out".
206 Paragraph 19 of the particulars purports to particularise the defendant's case in relation to D25. Nowhere in those particulars is there any allegation of sexual conduct as between the plaintiff and D25. Indeed, from internal material, D25 did not meet the plaintiff until 1992 when he was 26 years of age. After that there are the most generalised allegations not about the plaintiff, but about a place called the City Plaza Hotel and what went on there. In what conceivable way can the plaintiff view the contents of paragraph 19 as either directly or indirectly "limiting the issues" or informing him of the "case" he has to meet, that is, of a case that bears a rational relationship with the proof of the substantial truth of the imputation? I would rank the particulars under paragraph 19 in the same category as those under 20. They will be "struck out". The defendant will not be granted leave in respect of D25.
207 The next paragraph the subject of criticism is paragraph 16 relating to one Trevor Michael Pollard. The same observations relate to paragraph 16; they will be "struck out".
208 As to paragraph 15, it makes no allegation directly or indirectly against the plaintiff in respect of the plaintiff's conduct with a young boy in a sexual sense. Indeed, in sub-paragraph 5 of paragraph 15 wherein Mr Brinkworth purports to remember merely the plaintiff arriving at the hotel with a "young scruffy looking teenager", it does not coincide with any other particular especially that set out in paragraph 10 where an event is described as having taken place at The Regent Hotel.
209 Paragraph 15 without more is a, generalised recitation that fails to specify any particular matter rationally capable of going to the substantial truth of the relevant imputation. It will be "struck out".
210 For similar reasons I would not allow that which is purported to be particularised in paragraph 9(4), (12) and (14).
211 Paragraph 8 of the particulars deals with D16 and at great length. I will not allow paragraph 8(26). What the defendant has failed to do is to specify with precision what acts took place. For example, in sub-paragraph (18) what I understand to be arrangements for meetings that are alleged to have culminated in homosexual intercourse went on until 1994 or 1995 when D16 was aged 23 or 24. Whilst I do not propose to "strike out" these paragraphs the defendant will be confronted with the situation where the greatest of care will have to be taken by it in leading evidence from this complainant and in leading the "relevant" evidence, and by relevant I mean relevant to the proof of the substantial truth of the imputations. In relation to D16 I consider sub-paragraph 8(23) to be an irrelevant assertion.
212 With respect to paragraph 7 dealing with D15, clearly sub-paragraph (20) must go. It is an irrelevant assertion. One possible explanation for it remaining in the Second Consolidated Particulars is some indirect relevance to what have become known as the "Anita Cobby imputations". It is argued by Mr Stitt that this goes to the "gravity" of the conduct. It does not. The gravity is contained in the imputation which if proved to be true will make clear to the world how serious the conduct of the plaintiff was. What is asserted in paragraph (20) cannot on any rational basis go to prove the truth of any imputation.
213 No argument was addressed to sub-paragraph (19) the relevance of which escapes me, however I will make no order in regard to it.
214 Otherwise, complaint is made about the use such expressions as "sexual contact" or "encounter". I see no necessity to conduct a strip and burn operation in relation to the particulars concerning D15 to cure these defects. The defendant again will have to exercise caution in the presentation of its case in chief in relation to this complainant.
215 Whilst the plaintiff has to some extent succeeded on the cause of scurrilous particulars, I do not find that outcome to evidence intentional overreaching. The plaintiff can seek his remedy for the defendant's conduct in this regard in the area of aggravated damages - if a case therefor is made out at the relevant time.
216 The point thus has been reached where what is said to be the penultimate bar to amendment is to be considered.
217 I turn now the psychiatric component. On 23 March 1999 it was asserted on behalf of the plaintiff that he would suffer an extreme psychiatric reaction from an adjournment occasioned by any amendment. This was put in response to a question from myself to the effect that if the defendant was otherwise entitled to a grant of leave, should it be refused because of the plaintiff's "extreme psychiatric state" because of which the consequence of the grant leave in terms of adjournment and delay will cause him grievous injury?
218 On 1 March 1999 the plaintiff consulted Dr Dent whose diagnosis was that he was suffering from such a degree of depression as to amount to a very serious illness.
219 Dr White was qualified by the defendant to interview the plaintiff on 23 March 1999, in order to determine whether the plaintiff had developed a psychiatric disorder which would put his life in danger if the Court hearing was prolonged or whether he was suffering understandable distress from the lengthy and highly personalised proceedings.
220 Shortly stated, it is submitted for the defendant that Dr Dent's evidence was that his view is that it is in the plaintiff's best interests to continue with the litigation to its end for as long as it takes under his supervision with appropriate medication because he is able to cope (T684). There is no requirement for hospital treatment nor for referral to a mood disorder specialist; the likelihood is that he will recover (T685) and it is Dr Dent's hope and goal to manage the plaintiff through the litigation and it is his expectation that this will be achieved. He will do his best to support and help the plaintiff to cope through any period of interruption or postponement of the trial (T695).
221 Except for an occasion of 20 January 1999 (as to which there is no report nor indeed, any need for medication), the plaintiff had not consulted Dr Dent between 4 September 1998 and 1 March 1999 (T693). Dr Dent's report of 8 September 1998 (annexure A to Mr Potter's affidavit of 14 September 1998) reports on the consultation which took place on 4 September 1998. His view was that Mr Marsden was then suffering from a mood change rather than an illness as a result of an event at Mascot airport. Medication was prescribed in the form of Nortab and the plaintiff was then able to cope.
222 Dr Dent had first seen the plaintiff on 21 April 1998 (report dated 18 May 1999); his then view was that the plaintiff had recovered from an episode of severe depression and no medication was prescribed (T688-9).
223 Dr White on the other hand saw the plaintiff on 23 March. His conclusion was that the plaintiff suffers understandable "existential distress and perhaps existential despair about this case (and probably the unresolved Police proceedings). He does not fulfil the criteria for mental illness and the Court case is neither necessary nor sufficient cause for mental illness in any reasonable person. From Mr Marsden's point of view, the Court case is proceedings in an unsatisfactory manner so he is suffering understandable emotional distress which he will not decompensate into a mental disorder regardless of how the case proceeds". Dr White also expresses the opinion that "because the capacity for a psychological stressor to precipitate or perpetuate psychiatric disorder dissipates with the passage of time … it will be safe, although, distressing for Mr Marsden to proceed with the matter. Furthermore, I believe that he has the psychological resources to deal with the variations in the proceedings".
224 Dr White's observations as to the plaintiff's condition were as follows: the plaintiff's presentation during the interview was not consistent with psychological symptoms; he did not suffer and has never suffered from mental illness, he suffered from distress; the symptoms described by the plaintiff pointed to depression, the symptom, not major depression being a mental illness; the plaintiff's symptoms were not consistent with major depression but pointed to reactive emotional distress. The various symptoms put to Dr White in cross-examination as symptoms of major depression, Dr White said might be due to alcohol abuse. The activities engaged in by the plaintiff including organising the case and continuing as a partner of a law firm, would not be possible for someone who has an incapacitating mental illness. Importantly, the plaintiff's global clinical impression was not of a person suffering mental illness.
225 It was submitted for the plaintiff that the essential difference between Dr Dent and Dr White is that Dr Dent says that the plaintiff is suffering mental illness whereas Dr White says he is not. Dr Dent has said that the plaintiff is suffering a "major depressive episode" (report dated 1 March 1999) and that his illness of depression has been exacerbated with the prolongation of the litigation (T676). He is of the opinion that it is in the plaintiff's best interest to see the litigation through, no matter how long it takes, and with the benefit of his treatment and medication, the plaintiff can continue with the litigation without risk to his physical and mental health. Dr Dent says that the plaintiff can be managed through the litigation and that the plaintiff will able to cope through any period of interruption or postponement as long as he is managed by Dr Dent.
226 Dr White is of the opinion that the plaintiff is not suffering from major depression or mental illness but distress and that it is safe, although distressing, for the plaintiff to proceed with the matter and that the plaintiff has the psychological resources to do so.
227 For the defendant it is contended that Dr White's views should be preferred by reason of Dr Dent not having carried out a full mental status examination which, on Dr White's evidence, was critical for a proper assessment of an individual suffering from mental illness (T714); indeed, Dr Dent's report did not fulfil the minimum criteria for a medico-legal report. There was no history of symptoms, there was no mental status examination and there was no assessment of the plaintiff's substance abuse and alternative stressors. Dr Dent carried out no investigation of the plaintiff's alcohol and marijuana intake. It is suggested that Dr Dent's comments are inconsistent with his treatment responses: in a brief "corridor" consultation which led to a note (being part of Exhibit J), Dr Dent notes he was extremely concerned about the plaintiff but did not recommend any hospitalisation (T671). Dr Dent (T671) recalls that the plaintiff was concerned about the pressures on him over the two weeks prior to the consultation on 1 March. He cannot recall what the pressures were and did not take any notes. In this regard it does appear that Dr Dent was unaware of the Police investigation and of the fact that the plaintiff had been interviewed by the Police on 29 January. Dr Dent made no inquiry of any general practitioner in relation to any medication which had been prescribed for the plaintiff nor did he, in his diagnosis of 1 March 1999, refer to or take notice of the plaintiff's sleep apnoea. Indeed, Dr Dent did not ascertain if the plaintiff was consulting anybody else.
228 In relation to the report made on 8 September 1998 Dr Dent found that the plaintiff was suffering from depression and diagnosed "mental illness" but provided no treatment nor did he refer the plaintiff to any specialist. In short, Dr Dent, the defendant contends, did not explore with his patient beyond the matters subjectively conveyed to him by Mr Marsden.
229 Dr White on the other hand carried out a mental status examination (Exhibit H), made and recorded relevant clinical observations, questioned the plaintiff about his alcohol and drug abuse and unlike Dr Dent did not make a positive diagnosis of mental illness and therefore would not be expected to seek corroborative data to positively exclude substance abuse.
230 In conclusion for the defendant it is submitted that accepting Dr Dent's at his highest, he establishes the plaintiff to be able to proceed with the litigation, it is in his interests to do so and under the supervision of Dr Dent and his present regime, the plaintiff should proceed to the conclusion of the litigation however long it may take. There is no evidence to support the proposition that the plaintiff is presently in an extreme psychiatric state such that a grant of leave resulting in an adjournment and delay will cause him grievous injury or alternatively, that the plaintiff would experience an extreme psychiatric reaction from an adjournment occasioned by the amendment. Thus, it is submitted, that the plaintiff's condition is not a factor either of itself or in combination with others which would prevail over the injustice of shutting the defendant out from raising the additional particulars.
231 For the plaintiff it is submitted that a review of the evidence establishes that Mr Marsden already suffers from a severe form of psychiatric illness; that illness may best be characterised as major depression; that illness has already been greatly exacerbated by the events that have occurred in this litigation since the proceedings were commenced in 1995; any delay in the resolution of the truth of the allegations would result in the further exacerbation of plaintiff's psychiatric condition. It is possible that the granting of the amendments and the consequential adjournment would result in the plaintiff committing suicide as a result of the exacerbation of his psychiatric condition. This last mentioned component was never elevated beyond a "possibility" as I understand the plaintiff's position.
232 In addition to the exhibits tendered and the oral evidence from the two psychiatrists and oral submissions from counsel, I have had the benefit and have had regard to the twelve pages of written submissions lodged by the defendant and the fifteen pages of written submissions lodged by the plaintiff.
233 Dr White was trenchantly criticised in submissions and embarrassed in the course of his evidence by reason of his report containing proforma material from his computer that had absolutely nothing to do with the case. Furthermore, Dr White was rightly attacked for his statement in his report of 25 November 1998 relating to the plaintiff's vocational, non-vocational, interpersonal and sexual functioning not suggesting psychiatric disorder on the one hand, whereas he had history in relation to each of those four components that was to the contrary.
234 In the end, given the high level to which the psychiatric condition was elevated for the purposes of the determination of the amendment application, after considering the evidence and the impression made upon me by the testimony of both psychiatrists and what I read in their reports and the submissions made by counsel both orally and in writing, I am not persuaded either that the plaintiff has a psychiatric illness or that he has a psychiatric or emotional condition such as to preclude the granting of leave to amend if it is otherwise available to the defendant. I find, notwithstanding the litany of faults in his report, Dr White to have been the more objective examiner of the plaintiff. I conclude on the probabilities that Mr Marsden suffers this existential despair, is of course subject to great distress, but is not so ill as to require hospitalisation and importantly, on Dr Dent's own testimony, with Dr Dent's assistance is able to cope.
235 There remains the plaintiff's Motion to set aside the subpoena. Leaving that to one side for the moment, I can say that the defendant has succeeded in persuading me to exercise my discretion to grant leave to amend. As I have said I am not satisfied on the evidence that there has been a want of good faith in the defendant, that there has been culpable delay, that there has been no or no proper consideration of the amendments themselves, that there has been an intention to overreach. I am satisfied that the plaintiff will be able to cope, in the psychiatric context and has the legal representational resources and an existing reservoir of knowledge to minimise the impact of the grant of leave. The amendment will not be to the full extent sought. Appropriate terms and trial management processes will be available to accommodate the parties needs and the interests of justice.
236 I turn to the plaintiff's Motion to set aside the defendant's subpoena dated 18 January 1999 to the New South Wales Police Service. The text of the Schedule to the subpoena is appended hereto.