New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 367 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 1 May 2000 JUDGMENT DATE : 1 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. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On admissibility of various warrants and reports under Listening Devices Act 1984 tendered on application for use of a pseudonym - Supreme Court Act 1970 s 82 - Evidence Act 1995 s 190(3) - T5546 DECISION : See paragraph 8 DLJT: 138 (Ex Tempore - Revised) [2000] NSWSC 367 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE MONDAY 1 MAY 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On admissibility of various warrants and reports under Listening Devices Act, 1984 tendered on application for use of a pseudonym - Supreme Court Act 1970 s 82 - Evidence Act 1995 (NSW) s 190(3) - T5546) 1 HIS HONOUR: In the light of the history of the conduct of the defendant's motion filed on 14 March 2000 and, in particular, the cross-examination of Mr Price, for example at T4955 to 6, and in the light of the position taken for the plaintiff at T4983, (whilst in a different context), it appears quite clear to me that there cannot be any rational foundation for a dispute between the parties as to D18 having been, pursuant to warrant issued by a justice of this Court, namely the two warrants issued by Ireland J, reference ST99/267 (a) and (b), a person in respect of whom an authority was given for the attachment of a listening device under the Listening Devices Act 1984 for the recording of a conversation referred to in his Honour's warrants. 2 I have made specific reference to the warrants issued by Ireland J in this context. The defendant has tendered four warrants, two issued by Sperling J, bearing reference 99/278 (a) and (b). The two warrants of Ireland J to which I have just referred and the reports under section 19 (1) of the Listening Devices Act, are reports in respect of the Ireland J warrants, not reports in respect of the Sperling J warrants. That is determined by reference to the warrant reference. 3 Objection has been taken to the tender especially of the reports under section 19 (1) on the basis that section 69 (3) of the Evidence Act 1995 (NSW) precludes their admission. 4 That which excites the objection in particular is the statement in paragraph (b) (i) of the return that purports to prove a person to be a registered informant with a number. When one reads the warrants with the returns, no other rational conclusion could be reached but that D18 is the person to whom the label "registered informant" has been ascribed in the returns to the warrant. 5 Leaving to one side the description "a registered informant number so and so", as I have said, in the light of the history of the conduct of this motion, there could be hardly any reasonable basis for there being in issue anything, save for that ascription of a label and a number; by that I mean the wiring up pursuant to a warrant and that that wiring up was put into effect on 15 August 1999. 6 In the end it will be a matter for submission as to whether or not all of those matters would give to D18 some status which would attract some relevant authority which would operate for or against the relief sought in the notice of motion. It seems to me, and I accept the submission for the defendant, that in the whole scheme of things the discrete matter of the provision of a title and a number is peripheral, first, and, second, in the light of the history, cannot be said to be genuinely in dispute in any event. 7 Having formed that view, either s 82 of the Supreme Court Act 1970 or s 190(3) of the Evidence Act compels the admissibility of the documents tendered; particularly in relation to the latter legislative provision an order that part 3.2 to part 3.8, (which commences with the hearsay provisions of the Evidence Act) will not apply to exclude it when that discrete peripheral matter can hardly be said to be genuinely in dispute. 8 I will admit the documents as exhibit B on the application. *********** Last Modified: 09/25/2000 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.