Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 38

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 38 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 9 February 2000 JUDGMENT DATE : 9 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 : Admissibility - relevance to admissions of conduct - use limited - Evidence Act 1995 (NSW) s 136 - T3775 LEGISLATION CITED : Evidence Act 1995 (NSW) DECISION : See paragraph 6

DLJT: 86 (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

WEDNESDAY 9 FEBRUARY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant)

JUDGMENT (Admissibility - relevance to admissions of conduct - use limited - Evidence Act 1995 (NSW) s 136 - T3775)

1 HIS HONOUR: The witness is being examined on the issue of the falsity of the statutory declaration he asserts he swore at the request of the plaintiff. Thus far his evidence indicates, on his account, that the statutory declaration is not false in every respect. 2 Paragraph 8 of the statutory declaration has been put to the witness, and the witness asked whether it was true or false. That paragraph says: "I can say that from my observation none of those persons were remotely near the age of 18 years. They were all persons in their mid or late twenties." 3 It fairly can be anticipated that the witness' answer to the question would be to the effect that that paragraph of the statutory declaration was false. 4 The evidence constituted by that answer to that question, which is relevant to the alleged admission by conduct sought to be relied upon by the defendant, cannot be relevant to anything but that, and in the context of the alleged admission, to the question of the falsity of the declaration in the overall context of the defendant's case against the plaintiff relating to this particular witness. 5 It is not, cannot and will not be admitted as being relevant, in the sense of being capable on any rational basis of proving any general conduct on the part of the plaintiff, conduct alleged in relation to other people in a general sense, or conduct in relation to what I will describe as the other complainants, which have been particularised. 6 I will limit the use of the evidence to it being relevant to the issue of the alleged conduct by the plaintiff to be relied upon by the defendant, if established, as an admission by conduct against his interests in the defendant's case in respect of this witness only. The evidence will be so limited pursuant to s 136(a) and (b) of the Evidence Act 1995.