Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 478

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 478 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 31 May 2000 JUDGMENT DATE : 31 May 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

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

I Barker Q.C. 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 application to tender microfilm of Regent Hotel records and summary - Evidence Act 1995 (NSW) ss 48 & 50 - T6687 LEGISLATION CITED : Evidence Act 1995 (NSW) DECISION : See paragraph 12-15

DLJT: 168 (Ex Tempore - Revised) [2000] NSWSC 478

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

JUSTICE DAVID LEVINE

WEDNESDAY 31 MAY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On application to tender microfilm of Regent Hotel records and summary - Evidence Act 1995 (NSW) ss 48 & 50 - T6687)

1 HIS HONOUR: The plaintiff has tendered two "things:" one is a box of what I understand to be microfilm copies of material from the Regent Hotel. That material covers the period 1 January 1990 to 28 February 1990. It was part of material produced to this Court pursuant to a subpoena served on the proper officer of the Regent Hotel, that subpoena having been issued by the Court on 14 January 2000. 2 A letter dated 20 May from Phillips Fox to Mallesons, which has been provided to me on the dispute as to the tender, informs that the documents in question have been, since 7 February, in the exhibits office on level 5 of this building. 3 On 15 May, D18 gave evidence in support of the defendant's case as to an event occurring in January or February at the Regent Hotel in 1990 involving the plaintiff. 4 In August of 1999, as far as I understand it, statements of D18 had been served on the plaintiff in accordance with directions. 5 On the 15th if not 16th of May, it became known to the defendant that as a matter of fact, there was a real issue as to whether or not any event involving D18 and the plaintiff took place at the Regent at all. 6 I have been provided Mr Nicholas Q.C. with historical information as to the dealings between the parties in relation to the tendered material. The time, however, has come simply to determine whether or not, on the tender, the material is admissible. 7 Taking into account the subpoena, the production pursuant to it, the material in the single box of the four I understand originally produced and the second item the subject of the tender, the summary, I am of the view that the latter is admissible under s 50 of the Evidence Act. 8 Statements have been made as to the summary being of material which in itself is not complete. The summary itself indicates at least two gaps: that is a matter going to weight. The summary pursuant to s 50(2)(a) provides the name of the person who compiled it and I am not persuaded that the defendant has not had a reasonable opportunity or otherwise will not have a reasonable opportunity to examine the documents now the subject of tender. The source documents have been part of the material in the physical presence of the Court since 7 February, part of which became clearly relevant to the fact in issue, namely, January, February 1990 upon the cross-examination, if not earlier in examination-in-chief of D18, that is, on 15-16 May 2000. 9 There are two other matters which I wish to remark upon. The first is the use by the plaintiff in the tender material of a tab containing the words "aggravated damages". Part of the material behind the tab (being document 128), certainly up until the end of 1999, points to the question of the records of the Regent Hotel, or is capable of pointing to that material being in some way to be relied upon in issue on the question of aggravated damages. The material after that is capable of being viewed as going to the issue of fact that was subsequently exposed on 15-16 May. 10 Whether the defendant fairly can be considered to have been confused or misled, I simply do not comment upon. I would have thought that the latter part of the material, the year 2000 material, would have been fairly clear in its import consequent upon judgment DLJT 73: NSWSC 303 of 14 December 1999. 11 The second matter is the indication given by the defendant that it might wish to apply to call evidence in rebuttal. That will be dealt with in the event that that occurs and I say no more. 12 I propose to admit the summary as exhibit EO and have the box 225 marked for identification 208.