Blomfield v Nationwide News Pty Ltd (No 2) [2009] NSWSC 978

New South Wales Supreme Court

CITATION : Blomfield v Nationwide News Pty Ltd (No 2) [2009] NSWSC 978

HEARING DATE(S) : 7 - 16 September 2009

JUDGMENT DATE : 15 September 2009

JUDGMENT OF : Harrison J

DECISION : Documents admitted

CATCHWORDS : EVIDENCE - defamation - admissibility and relevance - facts relevant to facts in issue - facts showing state of mind - credit and credibility - objection to the tender of evidence on the contention that it is irrelevant, unfairly prejudicial, previous representation and does not qualify as business record - Evidence Act 1995 ss 44, 69 and 135

LEGISLATION CITED : Evidence Act 1995

CATEGORY : Procedural and other rulings

CASES CITED : R v Burns [2003] NSWCCA 30; 137 A Crim R 557

Michael Blomfield (Plaintiff) PARTIES : Nationwide News Pty Ltd (First Defendant) News Digital Media Pty Ltd (Second Defendant)

FILE NUMBER(S) : SC 20218 / 2008

COUNSEL : P W J Gray SC with M F Richardson (Plaintiff) A Leopold SC with D R Sibtain (Defendants)

SOLICITORS : Clayton Utz (Plaintiff) Blake Dawson (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

HARRISON J

15 September 2009

20218 / 2009 Michael Blomfield v Nationwide News Pty Ltd & News Digital Media Pty Ltd

JUDGMENT 1 HARRISON J: The plaintiff sought to tender a series of documents that were produced by Ms Dye in response to a subpoena directed to her. They became collectively MFI 21. The defendants objected to the tender of the documents on a number of bases. These were that they are either irrelevant, that their probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendants and fall to be excluded in accordance with the general discretion in s 135 of the Evidence Act 1995 ("the Act"), that their tender is precluded by s 44(1) of the Act or that, where applicable, they do not qualify as business records in accordance with s 69 of the Act. 2 The plaintiff submitted that the documents were relevant to the issue of Ms Dye's state of mind at the time that she went to New York, and her reasons for having done so, having regard to her evidence that she went there to recover from the adverse effects of her treatment at the hands of the plaintiff in the ways that she earlier described. That treatment is in part the subject matter of the publications in respect of which the plaintiff sues. Ms Dye's evidence on this topic was as follows: "Q. Did you travel somewhere in early 2008? A. Yes.