Marsden v Amalgamated Television Services Pty Limited

[2000] NSWSC 519

CITATION:

Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 519

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 20223 of 1995; 20592 of 1996

HEARING DATE(S):

8 June 2000

JUDGMENT DATE:

8 June 2000

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J at 1

COUNSEL :	I Barker Q.C. M R Hall (Plaintiff) W H Nicholas Q.C. R Stitt Q.C. J S Wheelhouse (Defendant)
SOLICITORS:	Phillips Fox (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	Admissibility - defendant seeking to cross-examine the plaintiff as to contents of conversation between the plaintiff and Mr Elomari - the "Elomari" tapes - Listening Devices Act 1984 - T7023
LEGISLATION CITED:	Evidence Act 1995 (NSW) Listening Devices Act 1984
DECISION:	See paragraph 20-21

DLJT: 171
(Ex Tempore - Revised)
[2000] NSWSC 519

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

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE

THURSDAY 8 JUNE 2000

JOHN MARSDEN
(Plaintiff)

v

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

JUDGMENT: (Admissibility - defendant seeking to cross-examine the plaintiff as to contents of conversation between the plaintiff and Mr Elomari - the “ Elomari ” tapes - Listening Devices Act 1984 - T7023)

1    HIS HONOUR: Over the luncheon adjournment I have given consideration to a development in the cross-examination of the plaintiff, which, I candidly say, has caused me the utmost agitation and difficulty in its resolution. 2    Mr Stitt seeks to cross-examine as to the fact, subject matters and content of conversations between the plaintiff and Mr Elomari. Insofar as certain dates and times have been put to the plaintiff, he has answered them as best he could. Objection, however, has been taken to the "line" of the cross-examination. 3    What is quite clear is that it is sought to cross-examine the plaintiff on those conversations which, for present purposes, can be taken to have been recorded by a listening device, the product of which hitherto has been called “the Elomari tapes”. 4    Mr Elomari's evidence on the taping is set out in my judgment of 28 February 2000, (NSWSC 98: DLJT: 103). That was the first judgment excluding the admission of evidence of those tapes. A second judgment was that delivered on 26 May 2000 (NSWSC 465: DLJT: 164). 5    The administration of the various divisions of this court is such that in practice a trial judge is not in any formal way informed of the institution of appeal procedures in respect of interlocutory rulings or judgments, other than by the delivery to the judge's chambers of the judgment of the appeal court when it is handed down. Why that is so need not be explored, if it can be explained at all. 6    The fact of the matter is that I have been otherwise informed that the rulings of 25 May and 26 May are the subject of a summons for leave to appeal to the Court of Appeal to be heard, I am informed, on 16 June. (This information has been provided by the defendant since the oral delivery hereof and by the provision to me of a copy of the “White Folder”.) 7 I also have been informed that the plaintiff will be contending before the Court of Appeal that the relevant warrants should be set aside, an issue of a kind that was not raised before me, though nothing turns on that for present purposes. 8 The defendant argues that the proposed "line" of cross-examination will generate evidence admissible pursuant to s 13(2)(b) of the Listening Devices Act 1984. 9 Section 13(1) of that act provides that where a part of a conversation has come to the knowledge of a person - I emphasise “come to the knowledge of a person” - as a result, directly or indirectly of the use of a listening device in contravention of s 5, evidence of the conversation and evidence obtained as a direct consequence of the conversation so coming to the knowledge of that person - again I emphasise that phrase - may not be given by that person in any civil or criminal proceedings. 10    The relevant part of ss (2) provides that s (1) does not render any evidence inadmissible if the private conversation concerned comes to the knowledge of the person called to give the evidence, otherwise than in the manner referred to in that ss, namely ss (1), notwithstanding that the person also obtained knowledge of the conversation in such a manner. 11    Assuming for the moment that s 13 applies to a party to the conversation, it would seem to be clear that that person can be cross-examined as to the contents, the fact of and subject matters of the conversations, because it would in no way be dependant upon the legality of the listening device. Thus, in the normal course, one would expect permissible cross-examination of a party to the conversation as to that party's knowledge or recollection of what took place in it. 12    When a moment ago I stressed certain phrases from s 13, it was to raise a query as to whether a person who is a party to the conversation can be a person “to whom knowledge of the conversation has come”, or can be described as a person who “has obtained knowledge” of the conversation. 13    One construction of those phrases, "to whom knowledge has come” or “who has obtained knowledge", might apply to a situation where a party to the conversation has told someone else what was said in the conversation, and that “someone else” is the person giving evidence. It is an interesting query but one, by reason of the nub of the present problem, that need not presently be amplified, let alone resolved. 14 The nub of the present problem arises in the context where it is assumed that s 13 applies to a party to a conversation. 15 What is the nub? Mr Stitt has quite properly and candidly informed the Court that he does propose to cross-examine the plaintiff pursuant to the asserted entitlement as to admissibility of the product of his cross-examination, irrespective of any question of compliance with s 5 of the Listening Devices Act. 16    He said in the course of submissions that he is entitled “to give, in cross-examination, a testing of the private conversation to which this relates; I can do it either by asking him questions, either by playing the tape, or either by putting to him matters from the tape. Any evidence. It is evidence of the private conversation" (T7025.45). 17    The area with which I am concerned is discrete; that is the cross-examination of the plaintiff in relation to the contents of the “Elomari tapes”, or their subject matter. It is also important. It is important to both sides. Consistency is important. 18 I say that because I am not persuaded by the submissions in relation to s 13(2)(b), given the nub of the matter, that it is a separate or different question to the essential matters which will be the subject of any appeal. 19 Before lunch, I indicated that I proposed to crystallise the point either to permit Mr Stitt to continue or for it to be dealt with together with other matters in another court. It is clearly desirable to do so. 20 I hold that it is not open to the defendant to cross-examine the plaintiff on the subject matter or contents of the conversations being the product of the “Elomari tapes” by reference to or use of either the tapes or any transcript thereof and I order the defendant not to do so. 21    I was not urged to exercise any discretion. Had I been, I would otherwise have excluded the evidence that would be elicited or sought to be elicited in the cross-examination on the "line," under s 135(a) of the Evidence Act 1995, given the absence of any evidence from Mr Elomari and otherwise the absence of any proof in relation to compliance with s 5 of the Listening Devices Act, the probative value of any such evidence being substantially outweighed by the danger of prejudice. Also would I have exercised my discretion under s 135(c) and, so that there is as much clarity as possible, the reason for exercising it against admission under s 135(c) is the potential, in a short time, for appellate intervention or consideration of this very subject matter.

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Last Modified: 09/26/2000