Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 160

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 160 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 : On application for pseudonym - T4814 DECISION : See paragraph 14-15

DLJT: 114 (Ex Tempore - Revised) [2000] NSWSC 160

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 (On application for pseudonym - T4814)

1 HIS HONOUR: There is present in the witness box Mr Warren Ball, a Solicitor of this Court. He has been called by the defendant in relation to, as I presently understand it, the matter set out in paragraph 8 of the Particulars of Truth (Admissions) Part 67 Rule 18 which were delivered on 25 January this year. 2 An application has been made by the defendant that the identity of the person in respect of whom Mr Ball is to give evidence be protected, either by the application of a pseudonym or by the hearing in camera of Mr Ball's evidence. 3 On 16 December last year I ruled that no pseudonym order be available in relation to Mr Olive (D18) (NSWSC 1309: DLJT 79). 4 An application for leave to appeal has been lodged by the defendant in respect of that order and as far as I am aware the Court of Appeal has declined to order expedition of that application for leave. No stay or other interim relief has been sought in relation to Mr Olive's identity. I do not know of the progress, if any, of the unexpedited application for leave to appeal against my judgment of 16 December. What I do know is that it has been indicated to me that a further application is to be made in respect of that person for the same kind of order which I declined on 16 December. 5 In the light of recent events I do not know, and at this stage nothing really turns on it, whether the application is to be made by the defendant or by the witness. 6 I do know, because Mr Stitt has been good enough now to inform me, that that application is ready to be processed in the sense of filed in court and served on the other side this afternoon. 7 The defendant is anxious not to compromise in any way this present application that the witness proposes to make by him being referred to further by name in the course of Mr Ball's evidence. 8 The defendant, however, is confronted with a correct ruling by me as at 16 December 1999. A ruling which has not been stayed, the appeal of which ruling has not been expedited, the effect of which ruling is still in place. By not having been informed to the contrary, I gather nothing has happened today in an appeal in relation to a cognate matter which would affect the considerations applicable to the present application. 9 I am prepared to take no step in relation to a pseudonym order in the light of the status of my judgment of 16 December in relation to the witness. 10 The alternative suggestion is that Mr Ball's evidence be heard in camera. 11 Mr Ball's evidence will be limited, as I understand it, to his evidence-in-chief which will be not lengthy, I gather. Mr Barker wishes to reserve his position in relation to objections as to admissibility and cross-examination. 12 Be all that as it may, the device of closing the court to the public is one that the court employs only in exceptional circumstances as provided by the Supreme Court Act and at Common Law, one of which is to ensure that the ends of justice are served, or are not compromised. 13 It would be an extreme step to take to close the court to the public. The more so would this be the case in the context of the "ends of justice" when the notion of justice in this context must involve a valid, in place, order of my own that has had, since 16 December, a lawful and juridical effect; an effect contrary to that now being sought to be achieved by the employment of the device of a closed court. 14 The application is declined. 15 It will be a matter for the defendant whether or not any admissible and relevant evidence can now be called from Mr Ball, or for the defendant to make any other application before it proceeds further.