Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1187

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1187 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 1 December 1999 JUDGMENT DATE : 1 December 1999

JOHN MARSDEN (Plaintiff)

PARTIES : v

AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J

M Hall (Plaintiff) COUNSEL : W H Nicholas Q.C. J S Wheelhouse (Defendant) Marsdens (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Admissibility of evidence - anonymity of makers out of court statements - impact of publication - Evidence Act 1995 (NSW) ss 48 & 135 - T2847 CASES CITED : Hughes v Mirror Newspapers Limited (1985) 3 NSWLR 504 DECISION : See paragraph 9

DLJT: 64 (Ex Tempore - Revised) THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

WEDNESDAY 1 DECEMBER 1999

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant)

JUDGMENT (Admissibility of evidence - anonymity of makers out of court statements - impact of publication - Evidence Act 1995 (NSW) ss 48 & 135 - T2847) 1 HIS HONOUR: I am asked to rule in advance on a body of evidence proposed to be led for the plaintiff. The witness from whom the evidence is to be led is disabled, and it would be an inconvenience for her to be in and out of the witness box. 2 A statement of principle that has been referred to again and again in this litigation is that set out at page 513 E of the judgment of Hunt J in Hughes v Mirror Newspapers Limited (1985) 3 NSWLR 504 where his Honour said: "Mr Peters could give evidence of the precise words used by some other person out of court which demonstrated that person's contemporaneous reaction to the publication of the matter complained of." 3 The evidence sought to be led, it is submitted, falls within that category. It is proposed to lead from the witness who, as I presently understand it, occupied an administrative office in the Council of Civil Liberties, that within a short time after the publication of the first matter complained of, she and the office of the Council received, respectively, telephone calls and letters demonstrating the callers' and correspondents' contemporaneous, and also particularly adverse, reaction to the plaintiff. In respect of each type of communication the caller and the letter writer, or the callers and letter writers, was or were anonymous. 4 In respect of the letters received, evidence will be given that they were destroyed and thus the witness will give evidence as to the contents. Assuming that the letters are "unavailable" documents, as defined in section clause 5 of the dictionary to the Evidence Act, in relation to each such unavailable document, it would be, in my view, a "document in question" as defined in s.46 (1) in respect of which evidence may be adduced pursuant to s.48 (4) (b) by oral evidence of its contents. The opening words of s.48 (4) are: "A party may adduce evidence of the contents of a document in question that is not available to the party" is to be read disjunctively to the balance of the introductory paragraph in subsection 4. 5 In circumstances where, assuming contemporaneity and linkage with the relevant publication, an identified caller has a communication with someone in the position of this witness, or a letter identifies its author to that person, and the letter exists, it would seem to me that that evidence would be admissible in accordance with the Hughes principle I have identified. The mere fact that the caller was not identified and the author of the letter not identified, seems to be an insufficient basis for the exclusion of the evidence as a matter of principle, provided all other components of it satisfy the statement by Hunt J. It is evidence of the very kind, one would have thought, to which his Honour was directing his attention at the passage cited. 6 On that basis, subject of course as to how the witness evidence comes out, but subject to one other matter, I have come to the view that it is admissible. 7 It is argued by the defendant, however, that I should exercise my discretion under s135 of the Evidence Act on the basis that the probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendant. The probative value of the evidence is infected, it is said by, first, anonymity and, second, by reason of the absence of the documents in the case of the letters. No material would be available to determine how many correspondents there were, on the assumption that there was more than one. Reference was made, in the course of submissions, by myself, to an obsessive person who might write hundreds of letters. 8 By reason of those qualities, of course, the ability of the defendant to test what I will describe as the strength of the presumably disparaging content, both of the calls and the letters, is affected, as well as the number. 9 The witness herself can be tested as to her recollection, and in the end weight or lack of it given to the testimony she gives. By its very nature, the evidence will not have the probative value that evidence in relation to identified letters, existing letters and identified callers evidence would have. I am not persuaded that its potential probative value or its probative value is outweighed substantially by the danger of unfavourable prejudice to the defendant, given its capacity thoroughly to test this witness as to her recollection and the contents. I propose to allow it, subject to all the other matters to which I have referred being established in her testimony. I will add that no authority really one way or the other has been cited in the context of a defamation case, apart from the principle stated in Hughes. Hughes case, as I understand it, was concerned with the evidence of Mr Peters in the context of talk-back radio program. To that extent the present point is novel. ***********