Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 429

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 429 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 22 May 2000 JUDGMENT DATE : 22 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 admissibility of evidence sought to be led from Mr Arnold - T6308 DECISION : See paragraph 9

DLJT: 156 (Ex Tempore - Revised) [2000] NSWSC 429

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

JUSTICE DAVID LEVINE

MONDAY 22 MAY 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 Arnold - T6308) 1 HIS HONOUR: During the course of his cross-examination by Mr Barker, Mr Kinchela, at T3957 and 3958, was asked questions about the availability of amyl nitrite in small brown bottles at the time of the asserted association between that witness and the plaintiff in 1970/71. The suggestion was made and dealt with negatively by the witness at T3958.10 that bottles of amyl nitrite were not available until 1976 or 1977. 2 As I understand it, the present witness is called, not as an expert in the generally understood sense of that word but rather, as a non-expert or lay witness to deal with the fact in issue as to the availability of a container for amyl nitrite in the relevant period testified to by Mr Kinchela. 3 Thus far, over objection, Mr Arnold has given evidence as to opening a nightclub "Club 80," in or about October or November 1972, a club exclusively for gay men from which, in 1973, Mr Arnold says, he supplied the product amyl nitrite which he had manufactured, in 100 millilitre clear glass bottles of the dimensions of approximately six inches by three inches obtained by him from the chemistry department of the University of New South Wales. 4 In 1975, as I understand his evidence, the format of the container changed to a clear bottle with a screw top, approximately half an inch wide and one and a half inches long. 5 He has been asked whether he observed patrons in "Club 80" consuming amyl nitrite and the objection consistently taken hitherto were taken in relation to that question. 6 Evidence sought to be led in the way of "survey" evidence has already been rejected. The evidence of this witness as to his observations of what people may or may not have done in his club in 1973 in relation to the consumption of amyl nitrite cannot, in my view, rationally affect directly or indirectly the assessment of the probability of the existence of the fact that at the relevant times in 1970 and 71, Mr Marsden supplied the amyl nitrite in the way Mr Kinchela said. It is therefore irrelevant, inadmissible and I disallow the question. 7 The difficulties confronting the plaintiff flow, not surprisingly, from an attempt to prove a negative. That is not to say it can never be done but having identified, by reference to earlier testimony, the person who gave it and its subject matter, it would be unarguable, in my view, that historical events subsequent thereto of the kind to which Mr Arnold is deposing could not, on any rational basis, go to establishing either by elimination, let alone in any positive way, that which I understand the plaintiff is seeking to do. 8 There was discussion before lunch as to the ambit of the evidence to be given by Mr Arnold in which regard what can be described as an outline was provided by Mr Hall of counsel, on the clear understanding of Mr Nicholas and myself, that it was not a proof, it was not a statement but an outline, in regard to several aspects of which, I understand, there would be variations from that which is set out in the document. 9 Further examination-in-chief along the historical lines of what this witness would, if sought to be obtained by the kind of questioning which I have just rejected, will inevitably have to be subject to similar adverse rulings. ***********