Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 423

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 423 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 18 May 2000 JUDGMENT DATE : 18 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. R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On plaintiff's objection to reading affidavits of the applicant and David Campbell Hungerford on further application for pseudonym - T6190 DECISION : See paragraph 10

DLJT: 152 (Ex Tempore - Revised) [2000] NSWSC 423

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

JUSTICE DAVID LEVINE

THURSDAY 18 MAY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On plaintiff's objection to reading affidavits of the applicant and David Campbell Hungerford on further application for pseudonym - T6190)

1 HIS HONOUR: Leave was granted to the defendant on 17 May 2000 to file in Court a notice of motion. More correctly, the position was that leave was granted to Mr Stitt Q.C., who represents the defendant, to file a notice of motion in the name of the applicant for the pseudonym W2. 2 In support of that application, two affidavits are sought to be relied upon, one of the applicant sworn 17 May 2000 and one of a police officer, David Campbell Hungerford, sworn 16 May 2000. 3 Objection is taken to the reading of the affidavits on the basis that this application is made in the face of an adverse ruling from myself (NSWSC 401: DLJT 146 - 15 May 2000) on a prior application by the same applicant, in circumstances where the evidence pointed to in the proposed affidavits, and in the light of the history of the relationship between the applicant and the defendant's advisers, could have been tendered at the time the first application was made. 4 It is suggested that this is an application that can be characterised, first, as a "classic attempt" to remedy defects in an earlier application, and, secondly, that there is nothing unfair in the way that that application was dealt with. 5 I have not called upon Mr Stitt to make submissions in response to the plaintiff's application because I propose to dismiss it. 6 The application with which I dealt in my judgment on Monday was remarkable, peculiar and extraordinary, in terms of the circumstances in which it was made, and I refer to so much of my earlier judgment that identifies the decision in effect to apply, as announced as the witness was coming into court (see paragraph 2). 7 It is contended for the plaintiff, in opposition to my receipt of any evidence in support of this application, that the principles applied by McLelland J, as he then was in Brimaud v Honeysett Instant Print Pty Limited (unreported, 19 September 1988), would conclusively preclude this second application. The principles are stated by his Honour at pages 4, 5 and 6 of the unreported judgment dated 19 September 1988. 8 If what has happened in relation to the pseudonym application had happened in another context involving something strictly inter parties in relation to the conduct of this case, the principles enunciated by his Honour would be magnetically attracted to dispose of it. The factor that has predisposed me, however, to permit the application to be prosecuted is that it involves someone who is not a party to this litigation and it involves a question of whether or not something that is recognised by the law as a protection that the law provides as between itself and this one person should be available. 9 His Honour remarked at the bottom of page 4: "The overriding principle governing the approach of the Court to interlocutory applications is that the Court should do whatever the interests of justice require in the particular circumstances of the case." 10 Whilst there may be room for being critical of the defendant for not applying, as soon as the defendant knew last Friday at 11.30am of the application, for an adjournment to put the application in some sort of order, any such failure should not operate to the prejudice of an application of this peculiar kind in the interests of justice and I propose to allow the affidavits to be read, subject to any objection as to form or relevance. ***********