Marsden v Amalgamated Television Services Pty Limited

HIS HONOUR: The plaintiff proposes to call a Mr Dunks, to whom reference was made in the evidence of Mr Marsden at T6789.5, in relation to an incident involving Mr Elomari outside a Vietnamese restaurant in Campbelltown.

This proposed evidence, in my view, does not fall within s 106(c) of the Evidence Act 1995 (NSW) , as no prior inconsistent statement can be readily identified, if at all. Nor does it fall within s 106(a). Evidence admissible under that subsection was taken from Mr Avzarradel, and ruled upon as admissible on 7 July 2000 (NSWSC 169: DLJT 188).

The proposed evidence, in my view, fairly can be characterised as itself collateral evidence to evidence which, but for the operation of s 106(a), would itself be inadmissible under the collateral facts rule. I decline to admit it.