Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1061 | Case summary

JUDGMENT (On Plaintiff's Notice of Motion re " structure " of trial) 1 By Notice of Motion filed in Court on 18 October 1999 the plaintiff applies for the following orders: "1. That the plaintiff not be cross-examined by the defendant until the hearing of all the defence evidence on its truth defences in both actions. 2. Alternatively, that the plaintiff's cross-examination by the defendant after giving evidence in relation to the damages section be limited to damages and cross-examination in respect of truth be subject to cross-examination after the plaintiff has given evidence in relation to the truth question. 3. Alternatively, for such orders as the Court deems fit". 2 A cognate application was made on 9 February 1999 and decided adversely to the plaintiff ([1999] NSWSC 28: DLJT: 4). 3 The import of the application as explained by Mr Marsden (who argued it himself) was that the cross-examination of the plaintiff upon his having giving evidence on damages be either (a) adjourned until the plaintiff has given evidence on justification; or (b) he be allowed to give evidence on damages in his justification case (that is, in rebuttal of the defence case on justification) or (c) that the cross-examination of the plaintiff after he has given evidence (in a case in chief, as I understand it), on damages be restricted to damages. The plaintiff says that of the three alternatives the last only is likely to cause the defendant any disadvantage. 4 I am asked to exercise the powers and discretion provided by s 85(2) of the Supreme Court Act and SCR Pt 31 r 2. 5 It is submitted that I should take either of the first or second courses and make an order accordingly on the basis of "fairness" in the light of the peculiar nature of this defamation action. 6 The imputations found by the jury, it is submitted, are of the utmost gravity. It is of course part of the plaintiff's case on damages that they are false. As to the gravity of the imputations that, in the normal course, is a factor to be taken into account if and when damages are to be assessed. For the purposes of this interlocutory application it is sufficient for me to acknowledge that the imputations are, of course, very serious. I do not propose to embark upon a qualitative comparison between the imputations here found by the jury and imputations that have been litigated in other defamation actions. In the course of submissions Mr Marsden remarked that he would rather falsely be accused of being a murderer than be falsely accused of being paedophile. The seriousness of the imputations as a factor by itself is not persuasive. It is of the essence of defamation actions that imputations are serious and alleged to be false on the issue of damages. 7 The touchstone of Mr Marsden's position is the asserted unfairness of him being in "double jeopardy". That state of affairs would come about by his being cross-examined twice on the issue of justification. In what I will for the sake of convenience call the "normal course" the plaintiff in a defamation action in which there is a defence of justification, and in which the plaintiff in chief relies upon the falsity of the imputations for damages, would expect to be cross-examined on any evidence he gave as to hurt to feelings by reason of the falsity of the imputations and to have put to him the defence case on justification. Upon the defence presenting its evidence on justification in support of the issue on which it bears the onus, the plaintiff, again, in the "normal course" can call his case in rebuttal. In the event of the calling of the plaintiff's case in rebuttal, the plaintiff goes into the witness box again, the ambit of the testimony of the plaintiff in those circumstances would be circumscribed. As far as cross-examination is concerned and this appears to have been conceded by Mr Wheelhouse for the defendant, in the normal course, the plaintiff could not be required to be cross-examined again on the same subject matters that were put to him in cross-examination during his giving evidence in his case in chief. Further, of course, s 41 of the Evidence Act 1995 (NSW) must be taken into account. 8 Insofar as concern was expressed, by way of example, in relation to one anticipated witness for the defendant, it is said that it would be unfair to the plaintiff to be cross-examined on allegations this witness would be called to make in circumstances where the plaintiff knew that the witness has made varying statements concerning the alleged events. When there exists accepted forensic mechanisms for dealing with a situation of the kind that gives rise to concern in the plaintiff, whilst the statement of concern might be noted it is not persuasive to the point where I can make rulings the effect of which is merely to obviate some concern in the plaintiff which exists in the face of the "normal course" being followed in this piece of civil litigation. 9 I am of the view that the ultimate objective sought by the making of this application is essentially that same as that sought in the application upon which I gave judgment on 9 February. Certainly there have been changes in circumstances; the defendant case has been expanded on the issue of justification as a result of my ruling on 23 June 1999 (DLJT: 44). In my earlier judgment I drew attention (paragraph 19) to the distinction between the particularisation of a defence case and the evidence called in support of it. The situation presently exists where I have required the defendant to provide to the plaintiff proofs of evidence of the witnesses the defendant proposes to call on the issue of justification. The plaintiff's knowledge of the defence case is, to that extent, now far better than it was in February even taking into account the amendments, if not, by reason of the circumstances in which the leave to amend was granted. 10 Both Mr Marsden and Mr Wheelhouse reminded me of the authorities to which I referred in my judgement of 9 February 1999 and I do not propose to repeat what I said in relation to them (paragraphs 21-27), those case being Jerome v Anderson (1964) 44 DLR (2d) 516; Beevis v Dawson (1957) 1 QB 195; Downs Irrigation Cooperative Association Limited v National Bank of Australasia Limited (1983) Qd R 130. 11 Mr Marsden also relied upon, as a material change, the state of his legal representation. Mr Marsden, as I have said, argued this application in person. Mr M Hall of junior counsel has over the last week appeared for Mr Marsden in relation to other interlocutory matters; Mr Reynolds S.C. will be appearing in relation to two interlocutory matters, as I understand it; Mr Donohoe Q.C. is available for some time to represent Mr Marsden in regard to the damages component of his case. As far as I can understand it, there is a suggestion that subject to when the event occurs, Mr Barker Q.C. may well be available to represent Mr Marsden when the defendant presents its case on justification. This is a state of uncertainty which it has to be acknowledged gives rise to satisfaction in nobody. But again it is not a factor of such persuasion as to oblige me or compel me to order the departure from the "normal course" by itself or together with the other factors to which I have referred. A litigant in person enjoys of course some indulgences; that litigant is bound by the same rights and rules and obligations as any other litigant and as any other litigant who may be represented. Any indulgence granted to a litigant in person is not at the expense of the interests of justice as it affects both parties to the particular cause. 12 It was argued by Mr Wheelhouse that in effect I would be giving judicial advice and by acceding to the plaintiff's application would in effect be taking a position which is simply a matter entirely for him (cf. Urban Transport Authority of NSW v Nweiser (1991) 28 NSWLR 471 per Clarke JA at 476A-D). I consider there to be merit in the substance of this submission. Not being persuaded that there is any basis for making any order of the kind sought by the plaintiff on the grounds of fairness and in accordance with any discretion I have under the Act, the Rules or at common law, that should be the end of the matter. Otherwise to take any step along the lines suggested by the plaintiff would be in effect taking a decision that is entirely in his hands. As Mr Marsden quite candidly remarked in the event of his application failing it will then be "his call". 13 I am not persuaded that there is any reason to depart from the approach I took in my judgment of 9 February 1999 or discretely that any basis has been made out to grant the relief sought in the present application. 14 The Notice of Motion is dismissed.

Marsden v Amalgamated Television Services Pty Ltd

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