Amalgamated Television Services v Marsden [1999] NSWCA 312

New South Wales Court of Appeal CITATION : Amalgamated Television Services v Marsden [1999] NSWCA 312 FILE NUMBER(S) : CA 40400/99 HEARING DATE(S) : 17 August 1999 JUDGMENT DATE : 17 August 1999

Amalgamated Television Services Pty Ltd PARTIES : v John Marsden JUDGMENT OF : Mason P; Meagher JA; Handley JA

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : CLD 20223/95 CLD 20592/96 LOWER COURT JUDICIAL OFFICER : Levine J

COUNSEL : C: JS Wheelhouse: RC Titterton O: G O'L Reynolds SC; RG McHugh SOLICITORS : C: Mallesons Stephen Jaques, Sydney O: Phillips Fox, Sydney CATCHWORDS : Discretionary interlocutory order - Leave to appeal refused CASES CITED: Re the Will of Gilbert (1946) 46 SR (NSW) 318 DECISION : Summons dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40399/99 CLD 20223/95 CLD 20592/96 MASON P MEAGHER JA HANDLEY JA

Tuesday, 17 August 1999 AMALGAMATED TELEVISION SERVICES PTY LTD v John MARSDEN JUDGMENT 1 THE COURT: This application concerns a discretionary order in relation to the temporary withholding of leave to inspect documents produced on subpoena by a third party. It is clear that the matter can be revisited if the plaintiff gave evidence in advance of the witnesses referred to by pseudonyms or in the context of an application for inspection following discovery. In saying this, we are not inferring error on the trial judge's part. 2 Paragraph 60 of the judgment below indicates that the primary judge was persuaded at this stage of the proceedings that the material would not advance the defendant's case. No doubt this was because his Honour had inspected the documents. There is no reason to think that his Honour would ignore this factor if, in changed circumstances, the application for inspection were renewed. 3 Applying the well-known principles stated by Jordan CJ in Re the Will of Gilbert (1946) 46 SR(NSW) 318 we refuse leave to appeal. 4 The summons is dismissed with costs. * * * * * * * * *