New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 55 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 15 February 2000 JUDGMENT DATE : 15 February 2000 JOHN MARSDEN (Plaintiff) PARTIES : v AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J I Barker Q.C. M Hall (Plaintiff) COUNSEL : R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On notice given by the defendant pursuant to s 67 of the Evidence Act - ss 62, 63 & 74 - T3874 DECISION : See paragraph 10 DLJT: 90 (Ex Tempore - Revised) THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE TUESDAY 15 FEBRUARY 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On notice given by the defendant pursuant to s 67 of the Evidence Act - ss 62, 63 & 74 - T3974) 1 HIS HONOUR: Notice has been given by the defendant pursuant to s 67 of the Evidence Act 1995 that the defendant intends to rely on s 63(1) and s 63(2)(a) to adduce evidence for the following effect. Witness A will say that person B said something to witness A. Amongst the things said by person B to witness A is a statement by witness B as to witness B's age. 2 The plaintiff objects to the leading of the evidence in that form on the basis that evidence by A of what B said as to B's age must involve a statement by witness A about something said by witness B, which thing said by witness B could only have been known by witness B as a result of a previous representation made by another person, whom I will call C. It is argued that witness A cannot give evidence about what B said as to his age because what B said as to his age would depend upon B having been informed by someone else as to the fact of B's age. Thus, it is submitted that by the operation of s 62(2), the evidence would be inadmissible. 3 I suppose it fairly can be said that it has been a curiosity in recent decades of the rules of evidence that a person could not give direct evidence of that person's age. The operation of that rule is, no doubt, founded in considerations of the basis upon which a person would not have direct knowledge as to the date, time, place and circumstances of that person's birth. To this day, it is still the case that a witness is often led in terms "You understand that you were born on such and such a day?". In my experience, the leading of evidence in that form has not given rise to any objection; usually because there is no issue as to the age of the witness. 4 Section 73 of the Evidence Act is one of the exclusionary provisions of that legislation; and by that I mean it is one of those sections that provides for the non-application of the hearsay rule. Relevantly it says in subsection 1: "The hearsay rule does not apply to evidence of reputation concerning…; (c) a person's age". 5 The section, as far as I am aware, has received judicial consideration once only to date and that was by Hidden J in Regina v Mrish (unreported 15 August 1996) in which his Honour held in relation to evidence of reputation as to relationships that that section was directed to evidence of the fact of a relationship and not its quality. 6 Reliance is placed by the defendant on s 73(1)(c) as well as the terms of s 63(2), which provides that the hearsay rule, an exclusionary rule, does not apply to oral evidence by witness A as to a representation by B; the oral evidence being by A that that person saw, heard or otherwise perceived the representation being made. 7 The commentary on the Evidence Act to which I have had access for the purposes of this ruling is sparse. The evidence is sought to be led as to the truth of the statement by person B to witness A as to person B's age. That, as I understand it, is one of the purposes that underlies the complex provisions as to the admissibility of hearsay under the Evidence Act. 8 It would seem to me that in light of the historical matters to which I referred at the outset of this ruling, common sense must intrude upon the construction of the Evidence Act to the point where the artificiality involved in the submission for the plaintiff is simply not available and, indeed, is not acceptable as a mechanism to exclude material being placed before the Court for its ultimate determination as to what it might prove. 9 In a general way, I would find it remarkable in this year and in this era if a person seriously could be challenged as to a statement by that person as to that person's age. It might well be submitted, as implicitly it was as I understand it, that this is a case where age is of critical importance. But acknowledging the critical importance of testimony on that issue in relation to the forthcoming witness, or anyone else, the ultimate decision must be based upon a consideration of all testimony in the balancing exercise, and by what I hope would be the application of common sense. 10 Acknowledging the curiosity of the proposed evidence and the problem arising from the objection to it, I am, nonetheless, unpersuaded that it should be excluded and I will admit it. *********** 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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