New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 659 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 7 July 2000 JUDGMENT DATE : 7 July 2000 JOHN MARSDEN (Plaintiff) PARTIES : v AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J at 1 M R Hall (Plaintiff) COUNSEL : R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Admissibility - Evidence Act 1995 (NSW) - s 106(a) - T8107 DECISION : See paragraph 14 DLJT: 188 (Ex Tempore - Revised) [2000] NSWSC 659 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE FRIDAY 7 JULY 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Admissibility - Evidence Act 1995 (NSW) - s 106(a) - T8107) 1 HIS HONOUR: This is about the third occasion on which consideration has to have been given to what is known at common law as the collateral facts rule and the effect upon it of s 106 of the Evidence Act 1995. 2 An earlier ruling in relation to s 106(a) was given on 20 March 2000, (NSWSC 194: DLJT 121) and on 4 July 2000 (NSWSC 631: DLJT 184), in relation to s 106(a)(c). This is another instance of the consideration of the operation of s 106(a). 3 Mr Avzarradel is giving evidence; he has been referred to in prior testimony by the name of Carlos. 4 At transcript 4179, line 37, to 4182, line 56, Mr Elomari was cross-examined in relation to Carlos and conversations and events involving him and the arrangement made with the defendant. He was also cross-examined in relation to the conversation with the plaintiff in which reference was made to the arrangement with the defendant, Carlos, and whether the plaintiff could look after the witness Elomari. (See 4182, line 21, in particular). The plaintiff gave evidence in relation to that aspect. 5 The position of Mr Elomari is that the substance of his dealings with Carlos was denied by him. The substance of the events and conversation with the plaintiff was denied. 6 The clear import of the plaintiff's position vis-a-vis Mr Elomari, is that he has lied in giving his evidence and was induced to do so by the agreement with the defendant, which is in evidence, which agreement has been characterised as a "bribe". No clearer allegation of bias or a motive for being untruthful could be made in the presentation of one side's case against the other's. 7 What is now sought to be done is to lead from Mr Avzarradel his account of the conversation with Mr Elomari and the circumstances of it, all of which, as I have said, was expressly denied by Mr Elomari. 8 But for s 106, one would have little difficulty in coming to a view that on its face this would appear to be an exercise in the pursuit of collateral issues. The link, however, is made up of the agreement, the express denial by Mr Elomari of those two areas of evidence, (the wall/Carlos incident and the Campbelltown/Mr Marsden incident), in both of which the evidence points to references being made, first, to the agreement between Mr Elomari and the defendant and, second, a request from Mr Elomari to the plaintiff for assistance. 9 Mr Marsden has dealt with the last part. The present witness, it is intended, will deal with the first. 10 In rather dramatic language, the submission was made for the plaintiff that what the evidence presently on the record indicates is an attempt by Mr Elomari "to ignite a bidding war". However, I have, after consideration, come to the view that the evidence proposed to be given goes to the conduct of Mr Elomari in terms of his credibility in relation to the agreement, vis-a-vis Mr Marsden and the request for assistance. 11 This evidence adduced from this third party, that is otherwise than from Mr Elomari, is evidence that will be adduced in circumstances where Mr Elomari denied its substance. It can only be characterised as having, in my view, the requisite tendency - and that is all s 106 requires - to prove that Mr Elomari was biased or had a motive for being untruthful. That bias or motive, as I understand the plaintiff's position, being to tell the truth as Mr Elomari sees it in the context of an arrangement made by him with the party who calls him. 12 The quality of the evidence, it is inherent in the plaintiff's position, is that it is affected not by objective truth but by his perception of what the party calling him would want him to say, irrespective of the truth on any issue. 13 Whether in the end that is established or whether in the end Mr Elomari is taken to be a witness of truth is a long way down the track. 14 I am satisfied that s 106(a) will permit the proposed evidence. *********** Last Modified: 09/26/2000 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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