Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 663

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 663 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 10 July 2000 JUDGMENT DATE : 10 July 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J at 1

M R Hall (Plaintiff)

COUNSEL : W H Nicholas Q.C. R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On admissibility of evidence sought to be led from Mr Cook in relation to his connection with Costellos Nightclub - T8164 DECISION : See paragraph 9

DLJT: 189 (Ex Tempore - Revised) [2000] NSWSC 663

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

MONDAY 10 JULY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On admissibility of evidence sought to be led from Mr Cook in relation to his connection with Costellos Nightclub - T8164)

1 HIS HONOUR: Objection has been taken to the evidence sought to be led from Mr Cook in relation to his connection with Costello's from early to mid 1979. 2 The evidence has progressed to the point where all that is known is that he first attended Costello's in early to mid 1979 and, thereafter, at a time not yet identified, came to work there. 3 Objection is taken to the proposed evidence on the basis that it is irrelevant and, thus, inadmissible. It is said to be not relevant to any event upon which the defendant relies in its case as to alleged occurrences at or sourced in Costello's between Mr Marsden and any complainant. 4 It is submitted that the last incident in point of time sourced in Costello's is the Homes/Murphy incident, as I will describe it, in the period June/July 1978. Thus, Mr Cook's testimony as to any observations he made after he commenced to go to Costello's in early to mid 1979 is temporally irrelevant. 5 The defendant has been strictly confined, as was submitted by Mr Nicholas, in its case in relation to the various acts and incidents. There has evolved in this trial, however, not least in response to the defence of justification, an issue which may be identified as to whether or not Mr Marsden ever set foot in or was in any way an habitue of Costello's. 6 That is an issue the evidence in relation to which can be described as direct and circumstantial by nature and no doubt at the end of the day submissions will be made for and against the availability, if any, of inferences that might point to or against Mr Marsden having gone to Costello's. It is thus, in my view, in a general sense not irrelevant. 7 Further, there is express evidence from Mr Russell at pages 3991, 3992 and 3993 that in very general terms points to the following: the "raid" incident in 1975, thereafter Mr Russell seeing Mr Marsden at the club at least six to seven times, the completion of the renovation work in 1979, Mr Russell's employment at the club until it closed probably, according to Mr Russell, in 1982 to 1983 and particularly at 3993.5 to 10, the evidence of Mr Russell that after the renovation work was done and the cubicles were built, his having seen Mr Marsden up in that area of the second floor a couple of times. Thus I am persuaded that it is relevant. 8 The question of finality does not arise and I would not exercise the discretion provided by s 135, particularly (c), to exclude it under the Evidence Act 1995 (NSW). 9 Thus far we know no more than the commencement time of Mr Cook's attendance at Costello's, namely early to mid 1979. I will allow the evidence. ***********