Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 376

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 376 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 8 May 2000 JUDGMENT DATE : 8 May 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J at 1

I Barker Q.C. M R Hall (Plaintiff) COUNSEL : W H Nicholas Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Defendant's application for a pseudonym order - D18 - T5852 DECISION : See paragraphs 9 to 14

DLJT: 141 (Ex Tempore - Revised) [2000] NSWSC 376

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

MONDAY 8 MAY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Defendant's application for a pseudonym order - D18 - T5852)

1 HIS HONOUR: On 27 March I delivered a judgment (NSWSC 202: DLJT 124) on the plaintiff's application to inspect the defendant's documents in respect of which a claim for privilege was made in the course of the hearing of defendant's motion for a pseudonym order filed on 14 March. Inspection was permitted and thereafter evidence constituted by the further cross-examination and re-examination of Mr Price was heard. 2 Pausing there, at the conclusion of Mr Price's evidence, at that point in the hearing of the motion, there was, although on information and belief, evidence of threats to someone who had informed for the police, fears for that person's safety, inter alia, arising from the fact that that informer had at one time been a gaol inmate. That situation, specified threats, fear based on a former prisoner status can favourably, as far as the defendant is concerned, be compared to that situation dealt with by myself and the Court of Appeal in relation to D20. The Court of Appeal held that I did not give sufficient weight to the evidence of D20 who gave viva voce testimony, not of any specific fear arising from specific informing or specific threats, but rather arising from his being a prisoner in custody called upon simply to give evidence. 3 Had the defendant not adopted the approach reflected in the structuring of Mr Price's affidavit and waived privilege, more efficiently, in my respectful view to those advising the defendant, this application could have proceeded without Mr Price being placed in a position of some embarrassment in the course of his cross-examination. That position I accept to have been brought about by the tactical approach adopted for the defendant, and whilst it lead, as I have already said, to the court being misled by his affidavit, the situation has to my mind sufficiently been explained. 4 The resumption on 1 May of the hearing of the motion brought it about that evidence (exhibit B on the Motion), clearly established the witness' informer status with the Police Service. The evidence of Mr Potter also established that the witness had been identified in court, in one newspaper article, (the Sydney Star Observer), and also that it was known to the targets of the informing that D18 was the informer. Further, it was drawn to my attention that one of my judgments, which included D18's name, has in fact been reported ((1999) Aust Torts Rep. 81-534). 5 In the end, the defendant relied upon the informer status of D18 and in particular the decisions of the Court of Appeal in Cain v Glass (1985) 3 NSWLR 230, especially the statements of McHugh JA, as he then was, at 253-4G-A, and the decision in Smith (1996) 86 A Crim R 308, on which the plaintiff also sought expressly to rely at page 313. Fears or concerns are not a precondition for the protection of an informer. The interests of justice in the defendant calling this evidence will not be compromised by the minimalist interference with open justice by the provision of a pseudonym. There may be some knowledge in the public domain of the person's identity, that is the name, but not of the substance of that evidence the witness will give obtained as an informer, or of the substance of his evidence more directly vis-a-vis the plaintiff which he will have to give having been an informer in another but not unconnected area. 6 The failure of D18 to give evidence in the motion in all the circumstances I accept is not open to adverse inference, especially given the absence of the precondition referred to by McHugh JA. Accepting on the evidence, as I do, that D18 is a police informer on the absolute entitlement basis a case is made out for a pseudonym. On the balancing basis under s 130 of the Evidence Act, or as otherwise available at Common Law as advanced by Mr Hall, I am of the same view. 7 The knowledge of the targets of the identity of their informer and the substance of the evidence obtained in the information gathering process as an informer is a discrete area of knowledge which by itself is insufficient to weigh against the protection sought. The wider knowledge of the informer's name as a factor is diminished in its significance by no equivalent knowledge of the two areas of evidence to which I have referred. 8 Insofar as it was submitted by the plaintiff that there was no evidence of threat or danger, that, as I have said, is not so, even if the lately adopted position of the defendant advanced beyond particular reliance on such a factor. The relief sought is not out of proportion to the risk, it is minimalist and practical. It serves the public interest in the protection of the informer and the defendant's right to call its evidence. I do not see merit, utility or practicability in this context of just suppressing the fact that D18 was an informer without concealing his identity. 9 Thus, I accept the defendant's submissions and make orders 2, 3 and 4 in the notice of motion; namely, the witness named in the affidavit of David Charles Price sworn 14 March 2000 be addressed and referred to in court only by the pseudonym D18. 10 Any matter dealt with in court which is likely to lead to the identification of the said witness is not to be published or reported. 11 No photographs, film recording, drawings or other likeness are to be made of the witness in the court or in its precincts. 12 The cost of the notice of motion and the plaintiff's application for inspection will be costs in the cause. 13 The defendant is directed to give the plaintiff not less than 24 hours notice of when it is proposed to call D18. 14 The exhibits will be retained. ***********