Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 123

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 123 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 6 March 2000 JUDGMENT DATE : 6 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 : 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 cross-examine unfavourable witness on certain topics - Evidence Act 1995 (NSW) s 38(1)(a) & (c) - T4481 LEGISLATION CITED : Evidence Act 1995 (NSW) DECISION : See paragraph 3

DLJT: 109 (Ex Tempore - Revised) [2000] NSWSC 123

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

JUSTICE DAVID LEVINE

MONDAY 6 MARCH 2000

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (On application to cross-examine unfavourable witness on certain topics - Evidence Act 1995 (NSW) s 38(1)(a) & (c) - T4481) 1 HIS HONOUR: An application has been made on behalf of the defendant pursuant to s 38 of the Evidence Act, following the ruling I gave admitting exhibit 70 (NSWSC 122: DLJT: 108). 2 The application is to cross-examine the present witness in addition to the right already existing, namely as to age and year, as to his never having had underage sex with the plaintiff, as to the "circumstances" of his coming forward and his motive for so doing and as to the "circumstances" of his recanting. The application now made is understood by me to be made under s 38(1)(a) and 38(1)(c), as to the latter by reference to the document described as the "Denham Court Statutory Declaration" and declarations admitted in the evidence of Mr Gulley. 3 Motive for coming forward and recanting must inevitably and inexorably involve the reasons therefor, which themselves must inevitably and inexorably involve the circumstances thereof. I will permit cross-examination on both. ***********