Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 579 (27 June 2000)

Last Updated: 16 October 2000

NEW SOUTH WALES SUPREME COURT

CITATION: Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 579

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20223 of 1995; 20592 of 1996

HEARING DATE{S): 23 June 2000

JUDGMENT DATE: 27/06/2000

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:

I Barker Q.C.

M R Hall

(Plaintiff)

R Stitt Q.C.

J S Wheelhouse

(Defendant)

SOLICITORS:

Phillips Fox

(Plaintiff)

Mallesons Stephen Jaques

(Defendant)

CATCHWORDS:

Tender of MFI 240 - "long" statutory declaration of plaintiff dated 25 November 1998 - Exhibit 21 John Maynard statutory declaration 29 July 1996 - T7620

ACTS CITED:

DECISION:

See paragraph 6

JUDGMENT:

DLJT: 180

CAV

[2000] NSWSC 579

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DEFAMATION LIST

No. 20223 of 1995

No. 20592 of 1996

JUSTICE DAVID LEVINE

TUESDAY 27 JUNE 2000

JOHN MARSDEN

(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED

ACN 000 145 246

(Defendant)

JUDGMENT (Tender of MFI 240 - "long" statutory declaration of plaintiff dated 25 November 1998 - Exhibit 21 John Maynard statutory declaration 29 July 1996 - T7620)

1 During re-examination Mr Marsden was questioned in relation to Exhibit 21, the statutory declaration of John Maynard sworn 29 July 1996. That exhibit, in its paragraph 6, contains the statement "over that period and over the period since, that friendship was not of a sexual nature". The evidence of John Maynard in relation to this statutory declaration commences at T3772 (9 February 2000).

2 Mr Marsden was cross-examined at length in relation to his knowledge of the falsity of the statement extracted from the John Maynard declaration and at T6879 commenced the following exchange:

"Q. That statutory declaration was signed by John Maynard a day or so after he had come back from the snow with you at Perisher, wasn't it?

A. Yes.

Q. The relationship between you was certainly of a sexual nature, wasn't it?

A. We had had sex at the snow.

Q. But you had had a sexual relationship with John Maynard for some time prior to the date of this statutory declaration, hadn't you?

A. Relationship, yes I guess, yes.

Q. A sexual relationship?

A. Yes.

Q. What you did with that statutory declaration was to cause it to be sent to the police, wasn't it?

A. No. No way. No way.

Q. Did you make a statutory declaration in November 1998, a long statutory declaration?

A. Yes.

Q. Was the purpose of that statutory declaration to provide a detailed history of your contact with John and David Maynard?

A. Yes.

Q. In that statutory declaration did you enclose or annex a copy of Exhibit 21?

A. Yes.

Q. Did you do that for the purpose of attempting to put truthful facts forward?

A. Yes.

Q. But you must have known that the statutory declaration of John Maynard, Exhibit 21, in those terms was false?

A. I put it forward as a statutory declaration that he had signed in my office, it with was lots of other stat decs.

Q. I am asking you a simple question. You must have known that the statutory declaration of John Maynard, where it said that your friendship was not of a sexual nature, was false? A. Mr Stitt when I saw the statutory declaration in September on that Friday, and I saw that paragraph, I obviously poured over the paragraph. It is not my paragraph. It is a paragraph that was put in by whoever drafted it with John. I have obviously thought a lot about it. There are a number of interpretations you can put on it. I am not prepared to say to you that that is a black and white false statement. To me I think the interpretation in that one line there is wrong, but that's his statutory declaration, that's what I attached".

3 It was argued for the plaintiff that the "long" statutory declaration was admissible in re-examination to explain what was said to be the clear suggestion that not only was the plaintiff a participant in the preparation of the Maynard statutory declaration, he knew it was false and knowing it was false sent it to the police. The point is that the statutory declaration of the plaintiff sent to the police some years after the creation (for present purposes by whomsoever) of the John Maynard statutory declaration discloses the truth of the relationship between the plaintiff and that person (see paragraph 15).

4 Mr Stitt Q.C. argued that the component of his cross-examination extracted above merely went to the issue of having the plaintiff admit, contrary to his original assertion, that he in fact sent a statutory declaration to the police to which the Maynard declaration was attached.

5 At the time of the cross-examination, and upon considering the transcript, it does seem clear to me that the import of it was to suggest that the plaintiff knew that the contents of the Maynard declaration were false in the respect referred to, were knowingly false insofar as it is defendant's position that the plaintiff was its author, and that he knowingly sent this false information to the police. Taking that view it seems quite clear to me that the statutory declaration sent by the plaintiff to the police which is said to the contain the truth is clearly admissible as evidence in re-examination.

6 Accordingly, I will admit MFI 240 and it will become Exhibit FT.

***********

LAST UPDATED: 27/06/2000