New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 709 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 14 July 2000 JUDGMENT DATE : 21 July 2000 JOHN MARSDEN (Plaintiff) PARTIES : v AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J at 1 M R Hall (Plaintiff) COUNSEL : J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Various documentary tenders by defendant DECISION : See paragraph 9 DLJT: 202 CAV [2000] NSWSC 709 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE FRIDAY 21 JULY 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Various documentary tenders by defendant) 1 The first bundle of documents is comprised of message book entries kept by Mrs Kirk in relation to Mr Stringer. They date from the period 17 June 1996 to late 1998. They were tendered on the basis of laying the foundation for a Jones v Dunkel submission. On that basis I would not admit them. They were also tendered as being relevant to, as I understand it, the continuity of acquaintance between the plaintiff and Mr Stringer going back to the 1970s when it is said Mr Stringer was a client of the plaintiff's. This is relevant to the issue raised in the course of the trial as to whether the plaintiff ever went to Costellos, with which it appears Mr Stringer was associated and whether or not he had even heard of the establishment. On that basis I will admit the bundle of documents as Exhibit 265. 2 The second bundle of documents are message book entries in relation to Mr Herbert Field. I will admit this bundle as Exhibit 266 on the same basis. 3 The next tender document is MFI 161, a memorandum from Mark Bailey to Keith Rainey dated 25 August 1999. 4 The evidence at T6449.35 decisively lays the groundwork for the admission of this memorandum. It will be Exhibit 267. 5 The next category of documents is constituted by MFI 232 being records of court appearances by Stacey Fenton and a message book entry previously marked for identification 261, noting the funeral of that gentleman. 6 I must say that the weight that ultimately could be attached to this material, at present, appears to be almost minimal. I am not persuaded however it is inadmissible by reason of irrelevance. It will be defendant's Exhibit 268. 7 The defendant then tenders MFI 224. This is subpoena addressed to Dr Dent returnable in this Court on 10 November 1998, it having been issued on 26 October that year. The submissions in relation to the tender of this document were extensive and are recorded from T8376 and following. I cannot see any relevance of this tender. The service of this subpoena brought it about that documents were bought to the Court in respect of which a claim for privilege was made and in respect of which claim there has been no challenge. It is contended for the defendant that it was in no position to mount a challenge by reason of the opacity of the claim. There is an abundance of material in relation to Dr Dent. I do not see this document as having any probative value at all and it will remain MFI 224. 8 The final document for consideration is MFI 154 being a letter from Mr Bates of the defendant's solicitors to Ms P A Bergin (as she then was), Counsel Assisting the Royal Commission and dated 21 February 1995. Objection is taken to this letter on the grounds of relevance. It is said to be irrelevant because the letter pre-dates the exhibit to which it would otherwise relate, namely, Exhibit AO (the Stals drug allegation video tape). On this basis the tendered material is inadmissible and it will remain MFI 154. 9 In summary therefore, the following rulings are made: 1. Message book entries dated 17.6.96, 14.5.96, 29.7.98, 2.12.98 & 9.10.98 will be defendant's Exhibit 265. 2. Message book entries dated 26.3.98, 5.5.98 & 17.12.98 will be defendant's Exhibit 266. 3. Memorandum from Mark Bailey to Keith Rainey dated 25 August 1999 (previously MFI 161) will be defendant's Exhibit 267. 4. Record of court appearances by Stacey Fenton (previously MFI 232) and message book entry (previously MFI 261) noting the funeral of Mr Fenton will be defendant's Exhibit 268. 5. The tender of MFI 224 is rejected and it will remain MFI 224. 6. The tender of MFI 154 is rejected and it will remain MFI 154. *********** Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.