Marsden v Amalgamated Television Services Pty Limited

HIS HONOUR: An application has been made by the defendant to amend the case it proposes to make against the plaintiff in relation to the witness D20. The amendment sought is to eliminate from sub-particular (2) the words " in 1985 ".

The effect of that amendment is to maintain the defendant's position as to the age of the witness, maintain the defendant's position as to the event and the activities that occurred on it, but to extend by eight months the period of time during which the defendant alleges this one single encounter took place. It is submitted that there is no prejudice to the plaintiff, again by reference to the fact that D20's statement to the police on 1 May 1998 has been served.

That statement, which will be marked for identification 128, as a document sets out a lot of things of the kind that has been the subject of testimony from other witnesses. By that I mean no more than testimony as to what occurred, where it occurred and a physical description of where it occurred.

It must be the case, taking into account the plaintiff's stated position that nothing occurred, that to be confronted by such an extension of time during which it is alleged one event occurred, really poses a preparation burden hitherto and quite reasonably not anticipated to be borne in the light of the case earlier particularised.

There cannot be any question in this litigation that the onus of proof is on the defendant to establish the relevant facts in support of its plea. In relation to D20, one event is relied upon. It is, as I have already ruled, isolated to a discrete period of time in respect of which the plaintiff has had an opportunity to prepare a case in reply. The proposed amendment would have the effect of prejudicing the plaintiff by having, and one would think this would be a matter of common sense, to reconsider every aspect of the matters in the particulars and in MFI 128 over the further period of eight months all over again.

I propose to decline the defence application to amend its case and it can consider its position.