Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 132 (1 March 1999)

Last Updated: 3 March 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 132

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20223 of 1995

20592 of 1996

HEARING DATE{S): 1 March 1999

JUDGMENT DATE: 01/03/1999

PARTIES:

JOHN MARSDEN

(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED

(Defendant)

JUDGMENT OF: Levine J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

R G McHugh

(Plaintiff)

J S Wheelhouse

R Titterton

(Defendant)

SOLICITORS:

Phillips Fox

(Plaintiff)

Mallesons Stephen Jacques

(Defendant)

CATCHWORDS:

On admissibility of evidence on Defendant's Motion to set aside Notices to Produce

ACTS CITED:

DECISION:

See paragraph 7

JUDGMENT:

- 4 -

DLJT: 17

(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

MONDAY 1 MARCH 1999

JOHN MARSDEN

(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED

ACN 000 145 246

(Defendant)

JUDGMENT (On admissibility of evidence on Defendant's Motion to set aside Notices to Produce)

1 HIS HONOUR: In the course of an application being made by the defendant to have set aside a Notice to Produce issued on 23 February 1999, being the Notice identified as NP4 in these applications, a question of admissibility of evidence has arisen.

2 The evidence sought to be admitted is documentary and is constituted by correspondence and other material on its face sourced in the Police Service. The material has been tendered in the context of a submission being made for the plaintiff in support of the Notice to Produce that compliance with the Notice would lead to the production of material capable of showing that the Police Service, in complying with a subpoena issued on 18 January 1999 by the defendant, had conducted itself less than impartially as between the plaintiff and the defendant in this litigation.

3 The documentation constituting the tender was produced to the court by the Police Service in answer to a subpoena to the Police Service issued by the plaintiff and has been inspected by both parties. The subpoena was issued by the plaintiff on 23 February 1999 and made returnable on 25 February 1999. The material was tendered to prove, shortly stated, that there is no foundation and cannot be any foundation for the suggestion implicit in the plaintiff's position that compliance with the Notice to Produce would bring to light material showing that the police had been less than impartial in complying with the subpoena.

4 The tender is objected to on essentially three bases:

(1) It is not relevant to the issue I have sought to articulate within the application to set aside the Notice to Produce;

(2) It would not be admissible under s 69 of the Evidence Act, 1995 by reason of at least the operation of sub-sections 3 and 5; and

(3) As I understand it, goes to an ultimate issue relating to the determination of whether or not the Notice to Produce should be set aside.

5 The recitation of the events leading to this point in the application to set aside the Notice to Produce, which itself is part of at least two other substantive interlocutory applications, exposes a frightening tendency: for every step in this case to run away into side issues. The fundamental issue I have to decide on bases available to me, other than any potential exposure by production of material relating to a want of impartiality on the part of the police, is whether or not the Notice should be set aside.

6 I propose to refuse to admit the evidence, exercising my discretion under section 135(1)(c), if not (b), of the Evidence Act principally, if I might candidly say so, with a view to trying to do justice on an application to tender within an application within another application of the parties and to keep the conduct of this litigation under a degree of control. I would also exclude the evidence at this stage under s 135(a) insofar as it is pressed as to the truth of its contents.

7 I will have the material marked for identification 1 on the defendant's application to set aside Notice to Produce 4. I decline to admit the tendered documents.

LAST UPDATED: 02/03/1999