Marsden v Amalgamated Television Services Pty Limited

HIS HONOUR: Briefly stated, the issue in relation to Mr Kinchela is an allegation that on about four occasions certain conduct took place between him and Mr Marsden. On one occasion reference is made to him having been driven in a white car, query whether or not it was a Toyota (T3940; 3968).

In relation to Mr Kinchela, the plaintiff's position is a complete denial: no meeting, no car, no nothing.

The plaintiff seeks to lead evidence from Mr Dominelli in relation to what I understand to have been a transaction, whereby the ownership of a Monaro of a design referred to in the course of questioning, took place between Dominelli and Mr Marsden.

It is suggested for the defendant, that the question of ownership is one quite distinct from possession. That cannot be disputed as a general proposition.

The situation, briefly, is not dissimilar to a denial of an event having taken place, accompanied by objective evidence that could affect in a rational way, when one considers the terms of s 55 of the Evidence Act , the existence of particular facts in issue.

A denial of the participation in an event, broadly speaking, would not preclude the leading of evidence of not only did it not happen, but that the alleged participant was elsewhere at the time it was said to have happened. This evidence falls into that general sort of category.

To the extent that objection has been taken to it on those bases, I will allow the evidence to be led.