Marsden v Amalgamated Television Services Pty Limited

HIS HONOUR: In respect of a subpoena issued by the defendant on 3 May and made returnable on 5 May, material has been produced by the Police Service, and has been inspected.

By a notice of motion filed in Court yesterday, a claim for public interest immunity is made on behalf of the Police Service in respect of the material referred to in the affidavit of Deputy Commissioner Moroney sworn 9 May. The determination of that claim for public interest immunity was fixed for 10 am tomorrow.

On several occasions in the past in the conduct of this case I have considered it appropriate that a determination of a claim of this kind be made by another judge. There is nothing extraordinary about that. It is a step by way of precaution that I, as the trial judge, will not even be confronted by the risk of having placed before me material that it would, in the ordinary course of events, be desirable that I not consider.

In some cases I have perused the material, the subject of the claim, and have come to the view that I can easily dispose of the claim, and have done so.

In the instant matter I have considered the contents of the confidential affidavit by scanning through it, and have come to the view that it would be appropriate for another judge to determine this matter. Nothing is to be taken one way or the other by that view to which I have come; it is one taken out of fairness and precaution, as I have said.

I have already approached Justice Ireland who has assisted in this regard on occasions in the past, and I suggest to the parties that they contact his Honour's associate this afternoon to see when and how his Honour can accommodate the disposition of this matter.

I have assumed - and this remark is directed to the claimant - that there has been no overlap between the material in respect of which the claim for public interest immunity is made and the material otherwise produced under the subpoena. I propose, therefore, to hand back the notice of motion and the envelopes to Miss Plater, and the parties or Miss Plater can keep me informed as to developments in relation to Justice Ireland.