New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 167 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 14 March 2000 JUDGMENT DATE : 14 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 : R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Pseudonym application - form of evidence - affidavit on information and belief - T4816 DECISION : See paragraph 12 DLJT: 115 (Ex Tempore - Revised) [2000] NSWSC 167 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE TUESDAY 14 MARCH 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Pseudonym application - form of evidence - affidavit on information and belief - T4816) 1 HIS HONOUR: Leave has been granted to the defendant to file in court a Notice of Motion today seeking various orders for substantive relief (paragraph 4 being abandoned), on the subject of a pseudonym order. 2 In support of the notice of motion and affidavit of David Charles Price sworn today, in respect of which leave to file in court has been granted, is sought to be relied upon. 3 The application is the third of its kind in connection with this witness. The first was dealt with by me on 12 November last year (NSWSC 1099: DLJT: 51); the second was dealt by me on 16 December 1999 (NSWSC 1309: DLJT: 79). 4 The history of the second ruling to which I have referred was discussed in the ruling I delivered about an hour ago (NSWSC 160: DLJT: 114), and I will not repeat it. 5 The preliminary point taken for the plaintiff is that in an application of this kind the person in the best position to give evidence about the matters referred to in Mr Price's affidavit which I have read only for the purpose of disposing of Mr Barker's objection is, of course, the witness himself. 6 He secondly contended for the plaintiff that a perusal of Mr Price's affidavit discloses nothing fresh in the sense that that word is understood in terms of recency of occurrence or something cognate to it. That is to be contrasted with the disclosure for the first time of something that is objectively not fresh. 7 With respect to the first basis, save for one exception, it has been the practice in this case for interlocutory applications to be conducted on affidavit evidence on information and belief, a course provided for both in the Evidence Act and the practice of the Court. 8 This proposed application is one that the defendant is entitled to make, being of an interlocutory nature, even in the face of two earlier rulings, one of the prospects of the success of which would no doubt be affected by the fact that there were two prior rulings, or could be affected by that fact. It could also be affected by "new" material by way of evidence on information and belief, even if that new material is not "fresh" in the sense to which I have referred. 9 I am not persuaded by the first ground of opposition, that the mere fact it is on information and belief is sufficient to preclude reliance by the defendant on Mr Price's affidavit. 10 For the purposes of this ruling, as I have said, I have read what Mr Price has to say and ex facie there is pointed to, in the opening words of paragraph 2 of the affidavit, a basis for the material being "new", even if not fresh. 11 None of what I have said, of course, is to be, or can be taken as pointing to any view I might form as to what the outcome of the application will be. 12 For present purposes, having read Mr Price's affidavit, I am not persuaded by Mr Barker's submissions, and it may be relied upon if the defendant chooses to read it. *********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.