New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services [2000] NSWSC 24 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 3 February 2000 JUDGMENT DATE : 3 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 admission of evidence - T3577 - further particulars of truth - admissions by conduct DECISION : See paragraph 13 DLJT: 82 (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 THURSDAY 3 FEBRUARY 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On admission of evidence - T3577 - further particulars of truth - admissions by conduct) 1 HIS HONOUR: On 25 January this year a document described as "Particulars of Truth (Admissions) Pt 67 r 18" was delivered by the solicitors for the defendant to the solicitors for the plaintiff. The document, as I presently understand it, purports to give notice to the plaintiff of the subject matters of evidence to be called from various witnesses in relation to what is said to be admissions by the plaintiff constituted by conduct represented, in general terms, by what was done by others and, in some instances, by what was done by the plaintiff. 2 As Mr Stitt in his submissions in reply rightly said, there is no issue on the matters of principle to which he referred in his submissions in chief as to the availability of material probative of conduct of a party amounting to an admission relating to a matter in issue in the action. 3 It was argued for the defendant that there was no obligation on it in any event to provide these particulars. Whilst it is not necessary for the determination of the admissibility of the evidence sought to be lead to resolve that, I can indicate a view I fairly firmly hold that there does rest upon the defendant an obligation to give particulars. Admissions by the opposing party would be either a fact, or a matter, or a circumstance upon which the defendant could rely in support of its plea of truth and would in the normal course be the subject of particulars. 4 The document contains what I would describe as 17 separate series of assertions in respect of most of which, according to the document, conform with principle. The evidence pointed to can be relied upon as giving rise to an inference that the conduct constitutes the admission. 5 It cannot go unremarked that the form of the document does not quite coincide with that submission. It would have been helpful if the document was framed in a way clearly to indicate that, by reason of certain facts set out, it will be contended that it can be inferred that the conduct constituted an admission by the plaintiff against his interests on an issue in this trial. 6 The lateness with which the document was served on the plaintiff fairly can be the subject of some criticism, on its face, given the wide ambit of circumstances to which it refers. 7 The view I take is this: when one considers Part 3.4 in Chapter 3 of the Evidence Act dealing with admissions the process of seeking to assimilate the operation of the hearsay rule on the one hand with the statutory provision of its exclusion, for example in section 81 and in 82, and bearing in mind the breadth of the definition of relevance, I can see no basis for excluding the evidence, or for not receiving it. 8 It must be made quite clear, however, that the weight to be given to it, or any of it, will be a matter no doubt for argument and ultimate determination. 9 The other thing to be made clear is that it is not to be taken that by admitting the evidence, that is by permitting witnesses to say things, that those things are either credible, or true, or in the end, will prove anything at all. 10 The parties have the benefit of this document. The description given to it by Mr Barker in the opening of his submissions, if one takes a fairly detached view, might not be without merit. The document's contents presently known to the parties contains, for example, on page four in paragraph 5.2, something in respect of which one might reasonably come to the view that it is inherently incredible that someone would say what is there said. 11 In terms of the determination of the facts it is early days yet. 12 No other basis having been advanced for the exclusion of this material, I rule in relation to the present witness that the material, the subject of the particulars on page four, can be subject to the leading of evidence. 13 It is not to be taken, as Mr Stitt has in fact conceded in his submissions in reply, that every time a witness opens his or her mouth that the evidence in this general area necessarily would be admitted. I am not prepared to exclude it globally as is sought for the plaintiff, and for present purposes I rule in favour of the defendant in relation to this witness. *********** 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.