Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 37

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 37 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 of evidence - "context" - relevant to conduct sought to be proved as an admission - T3766 DECISION : See paragraph 5

DLJT: 85 (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 of evidence - " context " - relevant to conduct sought to be proved as an admission -T3766)

1 HIS HONOUR: The defendant seeks to lead evidence from the present witness, Mr John Maynard, on matters relevant to, so it is said, particular 6 in MFI 69 being the Particulars of Truth (Admissions Part 67 Rule 18) which were the subject of a ruling on 3 February NSWSC 24: DLJT: 82). 2 That earlier ruling contains observations in paragraphs 8 and 9 in particular relating to the weight that, in the end, might be given to such evidence and what, in the end, is proved merely by a witness saying things. Those observations are repeated. I propose to allow the evidence conformably with my earlier ruling. 3 It is said by Mr Stitt for the defendant that the matter particularised, going to the asserted admission, relates to the execution of a statutory declaration by this witness. It is said that that evidence cannot be understood without material by way of context; that material by way of context will involve evidence as to employment and personal relationship between the witness and the plaintiff. 4 The structure of this case in terms of both the found imputations and the asserted contextual imputations, in respect of which the defendant proposes to establish truth, does not involve, I am presently quite clearly of the view, any general examination of the plaintiff's conduct in respect to any person unless that person and that conduct falls within the "below 18 years of age category", which, to state it shortly, is the nub of the series of imputations to which I have referred. 5 The plaintiff's conduct with people 18 or over in any general sense, it seems tolerably clear to me, is irrelevant. But in the particular sense, namely in relation to this witness, its area of relevance and the basis upon which I will admit it, relates to the probability of that conduct occurring which is sought to be relied upon as an admission. As I have said before, whether in the end it establishes that is yet to be determined. 6 I, of course, do not know what the witness is going to say. It seems to me, however, that the employment and what is said to be a sexual relationship as providing a context for understanding the nub of the particular issue, should be dealt with succinctly and quickly. ***********