Marsden v Amalgamated Television Services Pty Limited

HIS HONOUR: At the conclusion of Mr Stevens' evidence, the plaintiff tendered MFI 109, two running sheets. The first was created on 27 April 1998 and entered on 1 May 1998; the second created on 5 May 1998 and entered on 11 May 1998.

The identity of the creator of each document is clearly shown on its face, as is that of the person who entered it.

It is contended that these documents are sought to be admitted as part of the plaintiff's case in reply and are business records not excluded by s 69(3)(b) of the Evidence Act .

It is said that they constitute a comprehensive chronology of the events the subject of cross-examination of Mr Stevens.

I am at a loss to see how these two running sheets can be so characterised in the light of Mr Stevens' evidence and the contents of the documents.

As to section 69 (3) (b), the words " criminal proceeding " in that section are defined in the dictionary to the Evidence Act and, thus, the tender would not be excluded by the operation of s 69(3) in the light of that definition.

Be that as it may, the documents not having, it appears clear to me, the relevance or status contended for, I decline to admit them and they will remain as MFI 109.

Those can be returned to Mr Hall.

Next, the Bell documents: pursuant to a subpoena issued by the defendant's solicitors, Mr Bell, solicitor, produced to the Court a file in connection with a client of his. Privilege is claimed in respect of two of the documents. I have read the documents in accordance with the usual practice. Neither discloses a dominant advice or litigation purpose with regard to the client, and access is granted to both sides.

I will hand those documents down, attached to the file to which access has already been granted.

The McCabe's Lawyers documents: pursuant to a subpoena issued by the plaintiff, Miss McKenzie has produced to the Court documents from McCabe's, Solicitors, in relation to a person who was a client of that firm.

In respect of one of those documents, a claim for litigation privilege has been made. In accordance with the usual practice, I have perused that document. I am satisfied that the claim is well-founded, and uphold the claim for privilege. Access is refused.