Amalgamated Television Services Pty Ltd v Marsden

Amalgamated Television Services Pty Ltd (ATS) sought to restrict the inspection of certain documents by the respondent, Mr Marsden, in proceedings before the Supreme Court of New South Wales. An earlier interlocutory appeal to the Court of Appeal had permitted such inspection, setting aside a prior order of the trial judge that had restricted it. ATS now applied to the trial judge to impose new restrictions on inspection, based on matters that could have been, but were not, argued in the Court of Appeal.

The central legal issue before the trial judge was whether it was open to him to displace the Court of Appeal's order permitting inspection by reference to arguments that were available but not advanced on the prior appeal. This also raised the question of the role of a notice of contention in such circumstances.

The trial judge determined that it was not open to him to revisit the decision of the Court of Appeal, particularly by reference to arguments that could have been raised but were not. His Honour held that the Court of Appeal's order was binding and that he lacked the power to make a further order restricting inspection on the basis of matters that were not argued before the appellate court. The trial judge considered that to do so would undermine the authority of the Court of Appeal and the finality of its decisions.

The appeal was upheld with costs.