Witness v Marsden

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Case Copied 88 min read
Reported Decision: 49 NSWLR 429

New South Wales


Court of Appeal

CITATION: Witness v Marsden & Anor [2000] NSWCA 52 revised - 9/05/2000
FILE NUMBER(S): CA 40151/2000
HEARING DATE(S): 10, 14, 15 March 2000
JUDGMENT DATE:
22 March 2000

PARTIES :


Witness (Claimant)
John Marsden (First Opponent)
Amalgamated Television Services Pty Ltd (Second Opponent)
JUDGMENT OF: Mason P at 1; Priestley JA at 4; Heydon JA at 19
LOWER COURT JURISDICTION : Supreme Court - Common Law Division
LOWER COURT
FILE NUMBER(S) : 		CL 20223/95
CL 20592/96
LOWER COURT
JUDICIAL OFFICER :		 Levine J
COUNSEL: W H Nicholas QC (Claimant and Second Opponent)
G O'L Reynolds SC/M R Hall (First Opponent)
SOLICITORS: Mallesons Stephen Jaques (Claimant and Second Opponent)
Phillips Fox (First Opponent)
CATCHWORDS: Application for leave to appeal against interlocutory order - pseudonym order - standing of witness to seek leave to appeal or to appeal - standing of witness to set aside subpoena - meaning of 'judgment' - principles of open justice - relevant discretionary factors - Supreme Court Act 1970 (NSW) s 101 - D
LEGISLATION CITED: Supreme Court Act 1970
Service and Execution of Process Act 1992 (Cth)
Foreign Tribunals Evidence Act 1856 (UK)
County Courts Act 1959
Federal Court of Australia Act 1976 (Cth)
Judiciary Act (1903) (Cth)
Criminal Appeal Act 1912 (NSW)
CASES CITED:
 See body of judgment
DECISION: See paragraph 153



      THE SUPREME COURT

      OF NEW SOUTH WALES

      COURT OF APPEAL

      CA 40151 of 2000
      CL 20223 of 1995
      CL 20592 of 1996

      MASON P
      PRIESTLEY JA
      HEYDON JA

      Wednesday, 22 March 2000

      WITNESS v JOHN MARSDEN & ANOR.
      JUDGMENT

1    MASON P: I agree with the orders proposed by Heydon JA and with his reasons.

2    The application below was decided and the appeal to this Court was argued on the basis of weighing the private interests of the Witness against the private interests of the plaintiff and the public interests in open justice.

3    I am content to decide the appeal on that basis. However, it does appear to me that any decision concerning pseudonym orders involves an additional public interest factor. The interests of justice include the interests in securing relevant testimony. The grant of a pseudonym order in one case may encourage other similarly placed witnesses to come forward. This is a relevant factor (see Savvas (1989) 43 A Crim R 331 at 336-7, “Mr C” (1993) 67 A Crim R 562 at 564-5), although surprisingly it was not advanced as such by the Witness or the defendant.

4    PRIESTLEY JA: With full respect to Levine J, I think he came to a mistaken conclusion when he refused to make a pseudonym order upon the application of the Witness concerned in these appeal proceedings.

5    Two main elements in the mistake were, in my opinion, that insufficient weight was given to the evidence of the Witness of his fear of retribution in gaol if it became known that he had given evidence of the kind contained in his…

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Details
Case
[2000] NSWCA 52
Decision Date

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an application for leave to appeal against an interlocutory order made by a single judge. The dispute concerned an application by a witness to set aside a subpoena, and the witness's subsequent application for a pseudonym order. The central question was whether the witness had standing to seek leave to appeal or to appeal the interlocutory order, and also whether the witness had standing to seek to set aside the subpoena.

The legal issues before the Court of Appeal were whether a witness, who is not a party to the proceedings in which a subpoena has been issued, has standing to seek leave to appeal or to appeal an interlocutory order refusing to set aside that subpoena. Further, the Court had to determine whether the witness had standing to apply to set aside the subpoena in the first place. The Court also considered the meaning of 'judgment' in the context of the *Supreme Court Act 1970* (NSW) s 101, and the principles of open justice.

The Court held that a witness, in the absence of specific statutory provision, does not have standing to appeal an interlocutory order refusing to set aside a subpoena issued to them. This is because such an order is not a 'judgment' within the meaning of s 101 of the *Supreme Court Act 1970* (NSW), which confers a right of appeal. The Court reasoned that the right to appeal is generally confined to parties to the litigation, and a witness is not a party. While a witness may have a right to apply to set aside a subpoena on grounds such as privilege or oppression, this does not automatically confer a right to appeal an adverse interlocutory decision. The Court also noted that the principle of open justice weighs against granting such a right of appeal, as it could lead to undue interference with the progress of litigation.

The application for leave to appeal was dismissed.

Orders

Orders of the court

See paragraph 153

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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