Marsden v Amalgamated Television Services Pty Limited

HIS HONOUR: The second application by W2 I am satisfied, on the evidence now presented, establishes that he has a status vis-a-vis the police of an informer, although there is no evidence that he is registered as such.

The evidence establishes that he is an informer to the police in relation to various matters connected and unconnected with this case.

The evidence establishes that he has fears and concerns for his safety by reason of that status.

The submissions made for the defendant and for the plaintiff on earlier occasions have in but summary form been to this effect: that the establishment of the status as far as the defendant is concerned is sufficient, fear and concern not being a precondition (see McHugh JA in Cain v Glass (1985) 3 NSWLR 230 at 253).

For the plaintiff it is appropriate that a weighing process of the kind embarked upon by the Court of Appeal in the Witness (NSWCA 52: 22 March 2000) appeal be adopted or, more specifically, the provisions of s 130 of the Evidence Act be applied.

The view I have formed is that on any approach the applicant is entitled to the protection of a pseudonym, either by reason of the mere fact of status, or by the way the process was adopted in the Court of Appeal, or, if necessary, by the consideration of the various factors under s 130 of the Evidence Act .

I will make the formal orders in open court.