Marsden v Amalgamated Television Services Pty Limited

HIS HONOUR: The present witness is one in respect of whom the application to amend, disposed of on 23 June last year (NSWSC 619: DLJT: 44), was not in contention.

The directions made on that occasion as to the delivery by the defendant to the plaintiff of proofs of evidence related to the people then described as D 17 to D 24.

This strictly can be characterised as a late application to amend. It seems to me, however, that the plaintiff is not surprised in any technical sense, by reason, as I understand it, of the plaintiff independently having had access to material in which reference is made to there being at least more than one occasion of a "threesome", as I would describe it.

Further, in the event that the evidence of this witness evolves on this subject matter in a way that requires further time on the part of the plaintiff's counsel to prepare cross-examination, appropriate allowance will be made. Further, of course, without deciding such issue, presently it could hardly be said that in a general forensic sense the plaintiff is disadvantaged by this development.

In those circumstances, I am not presently inclined to direct the provision of the proof that the defendant's solicitors obtained from this witness which would otherwise, in my view, be privileged.