Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 238

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 238 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 27 March 2000 JUDGMENT DATE : 27 March 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 : W H Nicholas Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On defendant's application to reopen its case on Notice of Motion for a pseudonym order - T5007 DECISION : See paragraphs 15-18

DLJT: 129 (Ex Tempore - Revised) [2000] NSWSC 238

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

JUSTICE DAVID LEVINE

MONDAY 27 MARCH 2000

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (On defendant's application to reopen its case on Notice of Motion for a pseudonym order - T5007)

1 HIS HONOUR: Concluding at about 12.30pm today I delivered a judgment (NSWSC 235: DLJT: 128) in respect of a matter of privilege consequent upon which, as events turned out, the plaintiff has had access to the documents the subject of that judgment. 2 The next thing that happened (at 2.00pm) was that an application was made by Mr Nicholas for the defendant to do two things. First, to tender listening device warrants and relevant reports or returns, two of which were exhibit 2 in the application I dealt with this morning and, secondly, to call to give oral evidence from D18. There can be no question that the applications are made within and on the motion. 3 As to the first, the tender of warrants, that was foreshadowed by Mr Stitt, and it is my understanding that the warrants, presently exhibit 2, will be accompanied by some further warrants and, subject to any question of relevance, their admissibility may not be contentious. 4 In response to the defendant's application to, in effect, reopen its case by the tender of the warrants and the calling of D18, submissions have been made on behalf of the plaintiff that, I will describe it as such, the defendant's motion is in effect incompetent. The person who will be, if the motion succeeds, the beneficiary of a pseudonym order is not presently a witness and will not be a witness until that person is sworn as such, it being assumed that that person's attendance has been compelled by the order of the court constituted by a subpoena. Thus that which the defendant seeks in the motion is either a "moot point" or a claim for some kind of advisory opinion from the court that will attend some future event, namely, the clothing of D18 with the character and quality of a witness upon his being called to the box and sworn or affirmed. 5 It is acknowledged for the plaintiff, as it has to be, that the raising of the competence point now is the first occasion on which any such submission has been made at first instance before me, at least since late 1998 when it was, I believe, that the use of pseudonyms was dealt with in a judgment of 20 November 1998 (DLJ: 6). The recent proceedings in the Court of Appeal (22 March 2000: NSWCA 52) and the judgment of their Honours in connection with D20, who is described as "Witness" in that court's judgment, does not deal in terms with the competence of a party (such as the defendant) to make an application of the kind embodied in the notice of motion. 6 The principal judgment of the Court of Appeal was that of Heydon JA, who at length, and appropriately for the circumstances that arose in his court, deals with the nature of the witness's application before me on 9 March (para 49 sqq), the appellate standing of that witness (para 61 sqq), the witness's application and the role of amicus curiae (para 75 sqq), and other matters relating to the question of "judgment" or "order". 7 It seems quite clear from his Honour's judgment, particularly paragraph 60, that a witness, in the context of a subpoena having been served, can move the court for the "narrow" relief to which his Honour is referring, that is, that the giving of evidence in compliance with the subpoena be subject to the condition of a pseudonym order, rather than for the broader relief of the subpoena being set aside. 8 In paragraph 91 (page 45) and paragraph 151 (page 78) there are remarks made by his Honour that I would understand as lending some support to the proposition that a person in the position of the defendant, namely a party, can move the court for the kind of relief sought in relation to a person the party proposes to call to give testimony. 9 I hold the defendant has the requisite standing. Insofar as, notwithstanding that holding, the matter may be affected by the consideration of a person is not a witness until sworn, I am not persuaded by that submission. 10 If, as was implicit in that submission, that person really has no status until sworn and cannot be adorned with the title of witness, then some consideration would have to be given to at least two other areas of the law in general and their application. The first is the law of contempt and the second, more discrete criminal offences concerning the subornation or other interference with "witnesses". That a person at least under subpoena enjoys the status as well as the description of "witness" prior to the commencement of the giving of testimony as such in a cause, is supported by paragraph 60, to which I have referred, of Heydon JA's judgment at page 27 where, inter alia, his Honour speaks about a "potential" witness. So thus far I am, as I have said, persuaded that the defendant has status. 11 Second, that the "strict" view that a person does not become a "witness" until sworn as a matter of principle, if not policy, if not practicality, given the other two areas of law to which I have referred, is not persuasive and cannot prevent the further prosecution of the motion. 12 It has been further suggested that, in the event of a person as a witness making an application, there could arise a conflict of interest, if the pursuit of that application in some is carried by counsel for the defendant or for the party for whom the witness is to give testimony. If the situation is that which I apprehend to be the one here, namely, the defendant wishes to call D18, D18 is willing to give evidence, D18 desires the protection of a pseudonym for various reasons to give that evidence, I can see no potential for conflict. The witness's desire in that regard is not in conflict, but coincides, with the interests of the defendant in having that witness give evidence. 13 The example of D20 shows that a witness can make an application. If a witness decides to make an application or, indeed, concurrently with a cognate application by the defendant, then of course, as far as I can see, there is no reason for that witness not to be separately represented. 14 It seems to me quite correct, as was submitted for the defendant, that ultimately the question of whether or not a person, a witness or a "potential" witness, is to be given a pseudonym is a matter for the court to decide as between itself and that witness on the evidence that has been presented before it. Where a moving party is a party to the cause such as the defendant, as I have ruled, that party can adduce the evidence, including evidence from a potential witness. If the moving party is the witness, that witness can adduce the evidence. If, and I am not persuaded that it cannot be the case, there is in effect a joint application, then the evidence called by the parties to it will be available to the court for the resolution of the issue of whether or not the court should grant the witness the protection of a pseudonym. 15 There is presently part heard the defendant's notice of motion filed on 14 March this year. The defendant has applied for leave to reopen in the two respects to which I have referred, and I grant that leave in respect to each. 16 It may well be, and Mr Nicholas is not in a position to inform the court, that D18 will make an independent application, in person, independently represented or relying upon the legal representation for the defendant. That will remain to be seen. In the meantime, to the extent that the motion is part heard in the sense that Mr Price is being cross-examined, that can continue or it can be deferred until what now might be described as the formal closure of the defendant's case upon this leave to reopen having been granted. 17 None of what I have hitherto said cuts across so much of the submissions of the plaintiff, but referred to more often than not in criminal cases, an independent application by a witness to either be permitted not to give evidence or to be given a certificate under s 128 of the Evidence Act. Nor does what I have said cut across the situation which Mr Barker said should apply but which I have found should not, but which nonetheless may still happen, that a witness comes to court and for the first time makes an application of the kind with which I am presently concerned. 18 Having acceded to the defendant's application and its two components, the question now remains as to the practicalities of the further conduct of the matter. ***********