Marsden v Amalgamated Television Services Pty Limited

HIS HONOUR: What is about to happen is probably somewhat unusual. I will direct that if at all practicable, that the transcript of the evidence I am about to hear be discrete, as in the case of the hearing of evidence in camera.

I think it fair to say that following upon the decision of the Court of Appeal handed down on Thursday 13 July, NSWCA 167, an application is to be made by the defendant to reopen its case. That an application to reopen was going made was in fact foreshadowed at the very latest on Friday, if not earlier.

As at the end of last week, tomorrow was tentatively set aside for the substantive application. It so happens that an investigator, Peter Raymond French, who gave evidence during the course of the trial, is available to give evidence this afternoon. I am informed that he has operational commitments in Queensland that would otherwise affect his availability. I propose to allow the defendant to lead evidence from Mr French, not as evidence in the trial and not as evidence in aid of any application to reopen. It is simply a practical measure.

Mr Hall of counsel for the plaintiff is not presently instructed in relation to the evidence of Mr French and is naturally concerned not only for his client's position in this exercise but for that of himself as counsel. I propose to permit Mr Hall as amicus to take such objections as he sees appropriate during the course of the leading in chief of Mr French's evidence. I will reserve in the plaintiff the right, of course, to cross-examination Mr French at an appropriate time, noting that the evidence is not called in aid of the application and noting the presently hypothetical situation that the need to cross-examine might not arise at all in the event of the leave application failing.

I stress that nothing is to be taken by permitting this course, for which the imperative is solely a matter of convenience at this stage, to be indicating one way or another a view I have formed as to the merits of the proposed application by the defendant, let alone, of course, the weight or significance of any evidence Mr French might give.