Amalgamated Television Services Pty Ltd v John Marsden [2000] NSWCA 167

Amalgamated Television Services Pty Ltd v John Marsden [2000] NSWCA 167

The trial judge erred in rejecting the copy warrants because, although they contained deletions and were not originals, they afforded some evidence of the grant of original warrants in unaltered form and could form links in an evidentiary chain that proper Part 4 warrants had been granted. However, the trial judge did not err in rejecting reliance on s 5(3)(b)(i), in preventing cross-examination of Mr Marsden by reference to the Elomari tapes or transcripts on the evidence then available, in rejecting reliance on s 13(2)(b), or in dismissing the motion for access to warrant materials. Leave to appeal was therefore granted and the appeal allowed only in relation to the admission of the...

Jurisdiction
Australia
Judgment Date
13 July 2000
Procedural Posture
Application for Leave to Appeal From Interlocutory Evidentiary Orders in a Defamation Trial / Court of Appeal; Leave Granted and Appeal Allowed in Part
Outcome
Leave to appeal granted; appeal allowed in part; otherwise dismissed; no order as to costs.
Legal Topics
['admissibility of Copy Warrants' 'listening Devices Act 1984' 'cross Examination Using Tape Transcripts' 'private Conversations' 'secondary Evidence' 'interlocutory Appeal' 'separate Determination of Questions']
['evidence' 'civil Procedure' 'defamation' 'privacy and Surveillance Law'] ['admissibility of Copy Warrants' 'listening Devices Act 1984' 'cross Examination Using Tape Transcripts' 'private Conversations' 'secondary Evidence' 'interlocutory Appeal' 'separate Determination of Questions']

Case Brief

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Procedural Posture

Application for Leave to Appeal From Interlocutory Evidentiary Orders in a Defamation Trial / Court of Appeal; Leave Granted and Appeal Allowed in Part

Legal Issues

  1. 1 ['Whether copy warrant documents MFI 191, MFI 197, MFI 193 and MFI 199 should be admitted as probative of the grant of listening device warrants under s 16 of the Listening Devices Act 1984.' "Whether s 5(3)(b)(i) of the Listening Devices Act 1984 applied because recording the conversations was reasonably necessary to protect Mr Elomari's lawful interests." 'Whether counsel for the defendant could cross-examine Mr Marsden using material derived from transcripts of the Elomari tapes.' 'Whether s 13(2)(b) of the Listening Devices Act 1984 permitted cross-examination of a principal party about the contents of the recorded private conversations.' 'Whether the claimant should have access to unexecuted warrant forms in court files.' 'Whether leave to appeal should be granted in relation to the interlocutory evidentiary rulings.']

Ratio Decidendi

The trial judge erred in rejecting the copy warrants because, although they contained deletions and were not originals, they afforded some evidence of the grant of original warrants in unaltered form and could form links in an evidentiary chain that proper Part 4 warrants had been granted. However, the trial judge did not err in rejecting reliance on s 5(3)(b)(i), in preventing cross-examination of Mr Marsden by reference to the Elomari tapes or transcripts on the evidence then available, in rejecting reliance on s 13(2)(b), or in dismissing the motion for access to warrant materials. Leave to appeal was therefore granted and the appeal allowed only in relation to the admission of the...

Court Disposition

Leave to appeal granted; appeal allowed in part; otherwise dismissed; no order as to costs.

Orders

  • ['Leave to appeal be granted.' 'Appeal allowed in part.' 'The orders of Levine J made on 25 May 2000 be set aside.' 'The answers given by Levine J to the questions ordered to be determined separately pursuant to Part 31, rule 2 of the Supreme Court Rules be set aside and, in lieu thereof, questions 1-4 be answered...