Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 70

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 70 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 21 February 2000 JUDGMENT DATE : 21 February 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

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

I Barker Q.C. M R Hall (Plaintiff) COUNSEL : R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : CLOSED COURT: Judgment directed to be published - T4155 - On closure of court during part of the evidence of Mr Elomari - T4127 DECISION : See paragraph 13

DLJT: 96 (Ex Tempore - Revised) THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

MONDAY 21 FEBRUARY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant)

CLOSED COURT (Judgment directed to be published - T4155) JUDGMENT (On closure of court during part of the evidence of Mr Elomari - T4127)

1 HIS HONOUR: The proceedings in which I am called upon to make a ruling have been conducted in closed court. The circumstances leading to that arise from concerns expressed to me in chambers by senior counsel for the defendant in the presence of senior counsel for the plaintiff in relation to the next witness Mr Elomari. The concerns were twofold: first, what I will simply call a state of distress. Mr Stitt said Mr Elomari was displaying distress which may affect the time at which Mr Elomari would commence to give evidence. 2 The second basis was that it appears Mr Elomari has been a police informer; a fact which should be protected, it is said, by the closure of court whilst Mr Elomari gives evidence about that fact. 3 As a result of the issue of a subpoena to the Police Department, as I understand it, there has been produced material in the form of documents and tapes which, as Mr Barker stated in open court on one occasion last week, indicated that Mr Elomari had been "wired". That material was the subject of a continuing process of production up until Friday afternoon. The material that has been produced by the police thus far, without the police pursuing any claim for public interest immunity. 4 Information in the possession of the plaintiff is to the effect, and it was announced in court, that the witness had entered into agreement with the defendant touching upon his giving evidence on that matter and his security as a witness for the defendant. A call was made for that agreement. It is stated on behalf of the plaintiff that the witness apparently has made no secret of the fact that he has entered into some arrangement with the defendant. 5 The material produced to the court in answer to the call is constituted by an affidavit of Steven Corry, solicitor sworn 14 February, to which is annexed a communication from the witness to the Commissioner of Police and a letter dated 14 February from the defendant's solicitors to the witness's solicitor, the deponent of the affidavit. 6 For the defendant, a confidentiality order limiting access to the material produced in answer to the call is sought, access being limited to only counsel for the plaintiff. It is asserted that there is nothing in the material in respect of which instructions need be obtained. The material relates to the witness's status as a police informer, some concern for his safety, and steps taken by Channel 7, the defendant, to provide for his safety. 7 I have read the material, after deferring doing so for some time, and have provided it to Mr Barker and Mr Hall conformably with the level of restriction of access sought by the defendant. I have done so the better to enable Mr Barker to make submissions that access should not be so limited. 8 Whatever else might be in the possession of the defendant or, indeed, the plaintiff, in relation to statements made by Mr Elomari, that which no doubt excited the particular interest of the defendant was Mr Elomari's assertions as set out in paragraph 8 of Malleson's letter of 14 February. Those assertions involve disclosure of Mr Elomari having been an informer and his awareness of that fact and in the context of the provisions made by Channel 7 for his safety. 9 The fact of Mr Elomari making the assertions in paragraph 8 and particularly whether or not those assertions are true, must be matters in respect of which counsel for the plaintiff can obtain instructions from their client. 10 Leaving to one side for the moment the status of the Court during which Mr Elomari gives any evidence, what has been said to me thus far clearly indicates that Mr Elomari's conduct as an informer and entering into an arrangement with Channel 7 must inevitably be the subject of cross-examination. 11 I propose to permit inspection of the documents produced on call by the legal advisers for the plaintiff and the plaintiff. It does seem to me, however, that the material not otherwise being in evidence, at this time there is no present basis for permitting its wider dissemination. 12 If, upon receipt of instructions, it is considered by the legal advisers to the plaintiff that steps will have to be taken in terms of the issuing of subpoenas or the making of inquiries beyond the ambit of the plaintiff and his legal advisers, then the plaintiff's side of the record has leave to apply to vary the access to the documents presently limited to the plaintiff and his legal advisers to take such steps. 13 The documents will be marked MFI 98 and handed back, and one copy will be provided to the plaintiff's side of the record. Access is not granted in any way to permit any additional copies to be produced. One copy is enough. I will have that copy made. ***********