Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 194

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 194 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 20 March 2000 JUDGMENT DATE : 20 March 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

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

I Barker Q.C. M R Hall (Plaintiff) COUNSEL : R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Evidence - admissibility - Evidence Act 1995 (NSW) s106(a) - contemporaneous notes by Mrs Ferry of telephone conversations with Mr Pearce - T4850 LEGISLATION CITED : Evidence Act 1995 (NSW) DECISION : See paragraph 8

DLJT: 121 (Ex Tempore - Revised) [2000] NSWSC 194

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

JUSTICE DAVID LEVINE

MONDAY 20 MARCH 2000

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (Evidence - admissibility - Evidence Act 1995 (NSW) s 106(a) - contemporaneous notes by Mrs Ferry of telephone conversations with Mr Pearce - T4850)

1 HIS HONOUR: The evidence sought to be tendered through a document said to be a contemporaneous record of a telephone conversation between the witness and Mr Pearce is evidence that goes the recanting on which the defendant is seeking to rely, the recanting being, as I mentioned in the first ruling this morning (NSWSC 193: DLJT 120), the withdrawal, inter alia, by Mr Pearce, of the Grusovin statutory declaration (Exhibit 57). 2 Mr Pearce, leave having been granted to the party calling him to cross-examine him as an unfavourable witness, was asked a series of questions at T4421 and T4425-6 in relation to this telephone conversation. Save for apparently conceding at T4421.25 that a reason for ringing Mrs Ferry was to apologise, the oral evidence of Mr Pearce appears substantially to be in conflict with what Mrs Ferry has purported to have recorded in the note. 3 Objection has been taken to both the tender of the note or any other mechanism of leading the evidence of Mrs Ferry as to what Mr Pearce said to her. The basis is that, classically, it falls within that category of evidence made up of issues collateral to facts in issue and collateral, peculiarly, in the context of evidence as to credit. 4 It is advanced for the plaintiff that Mr Pearce, having said "No" in answer to a question, the counsel who called him is bound by that answer, and the pursuit of it falls within the proscribed areas referred to in Attorney-General v Hitchcock (1847) 1 Exch. 91 and discussed, as I have remarked in an earlier ruling (NSWSC 172: DLJT: 119), in paragraph 17580 of the most recent Australian edition (6th) of Cross on Evidence. 5 When one considers the content of the note in the light of the evidence recorded at the transcript references I have mentioned, there is great attraction in the submission for the plaintiff. On its face it seems to cry out to be a classic case of a binding nature of an answer to a collateral issue on credit. In response, however, for the defendant, it is argued that more relevantly does the proposed testimony cry out for the application of s 106(a) of the Evidence Act as an exception to the credibility rule. The section provides that the exclusionary credibility rule does not apply to evidence tending to prove that a witness is biased or has a motive for telling untruths, if the evidence sought to be led to go to prove those matters is led otherwise from the witness and, as is the case here, the witness has denied the substance of the evidence. The operation of s 106(a), as the learned commentators in Cross remark, does not render admissible in defiance of the credibility rule every piece of evidence of bias. 6 This evidence, I am of the view, is capable of tending to prove that this witness has the qualities referred to in s 106(a). It is a view to which I have not come in any way lightly, but a view to which I have come influenced by a very profoundly important component of this case in relation to Mr Pearce vis-a-vis the plaintiff. That is the very nature of the case the defendant seeks to make about Mr Pearce vis-a-vis the plaintiff: that Mr Pearce was "turned", which inexorably and inevitably involves bias. 7 Complaint has been made in the course of submissions by Mr Barker of the repetition by counsel for the defendant of the assertion that the plaintiff has manipulated evidence. Mr Stitt has repeated that assertion. Mr Barker is entitled to have recorded his complaint that that assertion has been made and is entitled to assert that his opponent's assertion really is unfounded. At the end of the day, that will be a matter for me to decide. 8 To make it quite clear, this objection has induced in me the need to give some intense consideration as to the very interesting question of the operation of s 106 and s 102. It is however that component and structure of the defendant's case founded in the volte-face by a witness, the complete change of face that attracts the operation of s 106(a), to such an extent to admit this evidence, which I propose to do. ***********