Witness v Marsden

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.