Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 475

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 475 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 29 May 2000 JUDGMENT DATE : 29 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 : R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Tender of Telstra documents - Evidence Act 1995 (NSW) s 48(1)(e) - T6580 DECISION : See paragraph 2

DLJT: 166 (Ex Tempore - Revised) [2000] NSWSC 475

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

JUSTICE DAVID LEVINE

MONDAY 29 MAY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Tender of Telstra documents - Evidence Act 1995 (NSW) s 48(1)(e) - T6580 ) 1 HIS HONOUR: I am not presently persuaded that the documents the subject of the tender; namely a letter from Telstra dated 28 January 2000 - which was the first component of the tender - or the second component of the tender made up of a letter dated 18 November 1999 addressed to the Prothonotary, and a letter dated 11 February 2000 enclosing the former, plus what is described as a "source" document, are admissible by the operation either of s 69 in terms of each respectively being a business record. 2 The argument Mr Stitt advances as to internal statements in the tender documents pointing to them not being such is persuasive, and therefore not being business records, are not amenable to the operation of s 48(1)(e), which requires the operation of subparagraphs 1 and 2 conjunctively. The documents will be marked for identification 204. ***********