Marsden v Amalgamated Television Services Pty Limited

HIS HONOUR: Objection has been taken to the admissibility of evidence contained in two affidavits sworn by Mr Potter today, 1 May. It is submitted for the defendant that that to which Mr Potter swears generally in the affidavits is irrelevant in that there is available no balancing exercise, once the position has been reached, that the person sought to be protected by the pseudonym order enjoys the status of a registered police informer, or the plaintiff.

It is contended for the plaintiff in the light of the same authority upon which the defendant relies, namely Smith (1996) 86 ACR 308 particularly at 313, that the evidence is relevant and admissible to a question as to whether knowledge of any status enjoyed by the person in question is sufficiently broad as to warrant the non application of the pseudonym order which might otherwise be applicable.

If I am concerned with questions of public immunity or matters of high policy or State policy, then s 130 of the Evidence Act is more liberal in its terms as to the existence of a balancing exercise. More liberal, that is, than what would otherwise be an available view as to what the Court of Criminal Appeal said in Smith , bearing in mind that this is an application by the defendant in respect of the person it proposes to call grounded upon its evidence as distinct from the public immunity interest claim advanced by an instrumentality of the State.

That distinction does not, of course, preclude in the end, if appropriate, the holding that the public interest compels an order being made to attach immunity by the use of the pseudonym to a witness being called by a defendant in civil litigation.

I propose to admit the affidavits. I add that Mr Potter's references as to what are said to be the naming of D18 in open court as set out in paragraph 6 of the lengthier affidavit, must be taken as having been founded upon his examination of the transcript. I will admit the evidence contained in both and will retroactively grant leave to file each in court.