Marsden v Amalgamated Television Services Pty Limited

[1999] NSWSC 1309

CITATION:

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1309

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20223 of 1995; 20592 of 1996

HEARING DATE(S):

16 December 1999

JUDGMENT DATE:

16 December 1999

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	M Hall (Plaintiff) W H Nicholas Q.C. J S Wheelhouse (Defendant)
SOLICITORS:	Marsdens (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	Pseudonym Order - T3432
DECISION:	See paragraph 9

DLJT: 79
(Ex Tempore - Revised)

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE

THURSDAY 16 DECEMBER 1999

JOHN MARSDEN
(Plaintiff)

v

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


JUDGMENT (Pseudonym order - T3432)

1    HIS HONOUR: By Notice of Motion filed in Court on 16 December, today, the defendant seeks in relation to the person referred to as D 18 orders which in short form I will describe as “pseudonym orders”. The hearing of that notice of motion took place in closed court. The reason for that, shortly stated, was first, to ensure that there was no threshold risk of the object of the motion being compromised by hearing in open court; and secondly, to obviate any argument as to whether or not it should be heard in closed court. 2 D 18 is the first witness intended to be called by the defendant on the resumption of this trial on 31 January 2000. Notice that there would be an application of some kind in relation to pseudonym orders was given in court on 7 December 1999. That it was to be an application involving only one witness was made clear earlier this week by Mr Stitt. That it was to be the witness, D 18, was indicated yesterday. D 18 is a witness with whom the defendant was ready to open its case this week or last on the closure of the plaintiff's case (see my judgment on the adjournment application dated 8 December [1999] NSWSC 1204, DLJT 67 paragraph 20). 3 It is idle now to speculate whether the defendant's case, had it been commenced this week or last, would have commenced with that witness either with or without the benefit of a pseudonym order. 4 On 12 November, in judgment [1999] NSWSC 1099, DLJT 51, I dealt at length with an application in connection with pseudonyms, and declined to order that they continue in place. D 18 is dealt with in paragraphs 45 and 46 of that judgment. I held on the evidence then available that it was D 18's “preference” to have the benefit of a pseudonym, and “wish” for people at work not to know about the matter involving him. 5    Taking into account factors, namely the “preference” and the “wish” founding the application then made in regard to him, on that basis, and in the light of the examination of the authorities referred to in that judgment, I declined to make the order. 6    It is now sought to have the orders made in the light of the evidence constituted by the affidavit of Ms Brenda Duchen sworn 14 December 1999, and that of Mr Angus sworn yesterday. 7    As to Miss Duchen's affidavit, it is on information and belief. As such, and on that basis I find that it does no more than explain the “preference” to which I referred in my earlier judgment, elaborate upon concern and embarrassment in the employment and social and sporting contexts, and add that D 18's job would be in peril if he gave evidence. 8    It does state explicitly, that is the affidavit on information and belief, what otherwise might have been implicit, the unwillingness of the witness to give evidence without a pseudonym. There is evidence also in Miss Duchen's affidavit, paragraph 3, that the witness is not a volunteer on the one hand, "he was tracked down by the police" and on the other, according to paragraph 13, his reported desire to do his duty to the public and the justice system by giving evidence in accordance with his statements, (Exhibit A on the motion), but tempered by his reported requirement for a pseudonym as a condition for so doing. 9    In applying the same principles based upon the same authorities in the same way as I did in my earlier judgment, I say that none of the matters to which I have referred persuades me that the interests of justice in this action, as between the plaintiff seeking vindication, and the defendant, seeking to prove truth, warrant the acknowledged minimal departure from open justice encompassed by the proposed orders on the evidence as I have found it above. In coming to this view, I have not taken into account any matters put to Miss Duchen in cross-examination by Mr Marsden about the witness. I add that "the witness coming forward" or the "out of the woodwork factor," while a factor, as is referred to in my earlier judgment, is not one which, by itself, if all else had been made out in favour of the defendant, would have been determinative of declining orders of the kind sought. The motion is dismissed with costs.

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Last Modified: 06/26/2000