Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 530

Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 530

In light of the court's earlier rulings on the tender of the tapes, the warrants, the s 19 notices and evidence from police officers, the issues raised by the defendant concerning admissibility and cross-examination on the Elomari tapes were to be answered in the negative. In particular, no foundation had been laid for concluding that the tapes were made by use of a listening device pursuant to s 5(2)(a) of the Listening Devices Act 1984.

Jurisdiction
Australia
Judgment Date
13 June 2000
Procedural Posture
Defamation Proceeding / Defendant's Notice of Motion Under SCR Pt 31 R 2 for Separate Trial of Issues Concerning the Elomari Tapes, With Related Proceedings Pending in the Court of Appeal
Outcome
Each of questions one to eight in the defendant's Notice of Motion was answered in the negative.
Legal Topics
['admissibility of Tape Recordings' 'listening Devices Act 1984' 'separate Trial of Issues' 'cross Examination Using Tape Transcripts' 'pending Leave to Appeal']
['defamation' 'evidence' 'civil Procedure'] ['admissibility of Tape Recordings' 'listening Devices Act 1984' 'separate Trial of Issues' 'cross Examination Using Tape Transcripts' 'pending Leave to Appeal']

Case Brief

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Procedural Posture

Defamation Proceeding / Defendant's Notice of Motion Under SCR Pt 31 R 2 for Separate Trial of Issues Concerning the Elomari Tapes, With Related Proceedings Pending in the Court of Appeal

Legal Issues

  1. 1 ['Whether documents MFI 191, MFI 197, MFI 193 and MFI 199 should be admitted as probative of warrants being granted pursuant to s 16 of the Listening Devices Act.' 'Whether tapes MFI nos 189, 195, 196, 198, 200 and 201 should be admitted as made by use of a listening device pursuant to s 5(2)(a) of the Listening Devices Act.' 'Whether the tapes should be admitted on the basis that recording the conversations was reasonably necessary for the protection of the lawful interests of Mr Elomari within s 5(3)(b)(i) of the Listening Devices Act.' 'Whether counsel for the defendant could cross-examine the plaintiff using or putting material derived from transcripts of the tapes.' 'Whether, on the proper construction of ss 5(1) and 13(2)(b) of the Listening Devices Act, the defendant could cross-examine the plaintiff on the subject matter or contents of the recorded conversations by reference to the tapes or transcripts.']

Ratio Decidendi

In light of the court's earlier rulings on the tender of the tapes, the warrants, the s 19 notices and evidence from police officers, the issues raised by the defendant concerning admissibility and cross-examination on the Elomari tapes were to be answered in the negative. In particular, no foundation had been laid for concluding that the tapes were made by use of a listening device pursuant to s 5(2)(a) of the Listening Devices Act 1984.

Court Disposition

Each of questions one to eight in the defendant's Notice of Motion was answered in the negative.

Orders

  • ["Questions one to eight in the defendant's Notice of Motion are answered in the negative."]