New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 220 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 22 March 2000 JUDGMENT DATE : 22 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 : R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Admissibility - relevance to case as particularised - objection - T4881 DECISION : See paragraph 15 DLJT: 126 (Ex Tempore - Revised) [2000] NSWSC 220 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE WEDNESDAY 22 MARCH 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Admissibility - relevance to case as particularised - objection - T4881) 1 HIS HONOUR: On 12 March 1999, by the service of the Second Consolidated Particulars of Truth under SCR Pt 77 r 18, the defendant particularised its case in relation to D20 as follows: "(1) D20 was born on 26 August 1970." 2 Exhibit 88, tendered through D20, who is now giving evidence, is a birth certificate which seems to establish that fact. 3 The second particular is that: "(2) When D20 was 15 in 1985 he worked as a prostitute soliciting clients at The Wall and adjacent to the El Alamein fountain in Kings Cross." 4 Particular (3) states: "(3) When D20 was 15 he observed the plaintiff at The Wall and at the El Alamein fountain." 5 Particular (4) commences: "(4) When D20 was 15 and working near the El Alamein fountain, the plaintiff engaged D20 …" 6 and then sets out the conduct. 7 As I understand it, the plaintiff has viewed these particulars of the defendant's case as particulars in the usually understood sense: that is, particulars of the case the defendant proposes to make, (not the evidence), and particulars of the case the defendant proposes to make in relation to D20 in support of its plea of justification of the relevant imputations. 8 The particulars have been understood as identifying in (4) what I will call the activity and, by reference to (1) and (2), the time at which that activity occurred. By reference to (1) and (2), that time is circumscribed by two components: the age, namely fifteen, and the year, namely 1985. 9 In 1985 D20 was fifteen years of age from 26 August to 31 December. (He was, of course, fifteen from 1 January to 25 August 1986). So, the plaintiff has understood that the allegation of one meeting involving the conduct described as underage sex, that is: (a) the event occurred in that context; (b) it occurred when D20 was fifteen; and (c) that one event took place when D20 was that age, - when? - in 1985. 10 To my mind there can be no other explanation for the inclusion in sub-particular (2), (the date of birth having been set out in sub-particular (1)), of the year 1985, other than to state: the case we are presenting is that what we say happened in sub-particular (4) happened in 1985. 11 It is said for the defendant that a document, being a statement said to have been made by D20 on 1 May 1998 to the police, has been served on the plaintiff and, curiously, it was submitted, or stated, that it was served by way of particulars. It cannot be. 12 The particulars were set out in the document to which I have been making reference and the statement, as I understand it, could only have been served in compliance with directions that I gave. The area of the evidence to be admitted is limited, in relevance terms, to the particulars of the case in respect of which it is sought to lead that evidence. 13 If a statement served in accordance with my directions contains material that falls without the case particularised, it is irrelevant and will not be admitted. 14 My attention has been drawn to paragraph 7 of the statement of 1 May 1998, in which reference is made to moving to Cairns, about which D20 has, in fact, given evidence. The want of apparent consistency between what is said in paragraph 7 of this statement and the evidence given in this courtroom as to that movement, need not be remarked upon apart from being noted. 15 The conclusion to which I have come is that the defence case is limited to evidence relevant to the time frame I have identified, following upon Mr Barker's elucidation of it: namely, when D20 was fifteen and in the year 1985. Any evidence sought to be led on the substance of the particulars as set out in sub-particular (4) as occurring at any other time is inadmissible on the particulars as they presently stand. *********** 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. 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