Witness v Marsden & Anor [2000] NSWCA 52

Witness v Marsden & Anor [2000] NSWCA 52

A witness subpoenaed to give evidence who is sufficiently interested and aggrieved by an interlocutory order refusing a pseudonym has standing to seek leave to appeal; Levine J’s refusal constituted an order within the meaning of Supreme Court Act 1970 (NSW) s 101; the evidence established both the genuineness and reasonableness of the Witness’s fears, thus the interests of justice warranted the making of a pseudonym order, which minimally interferes with open justice and is necessary to protect the witness and assure reliable testimony.

Jurisdiction
Australia
Judgment Date
22 March 2000
Procedural Posture
Application for Leave to Appeal / Court of Appeal Decision
Outcome
Leave to appeal granted, appeal allowed.
Legal Topics
['standing of Witness to Appeal' 'pseudonym Order' 'open Justice' 'subpoena' 'interlocutory Orders']
['procedure' 'defamation' 'evidence'] ['standing of Witness to Appeal' 'pseudonym Order' 'open Justice' 'subpoena' 'interlocutory Orders']

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Procedural Posture

Application for Leave to Appeal / Court of Appeal Decision

Legal Issues

  1. 1 ['Does a witness have standing to seek leave to appeal or appeal from an interlocutory order refusing a pseudonym?' "Is Levine J's refusal a judgment or order within the meaning of Supreme Court Act 1970 (NSW) s 101?" "Should a pseudonym order be made to protect the witness's identity based on fears for safety and open justice principles?"]

Ratio Decidendi

A witness subpoenaed to give evidence who is sufficiently interested and aggrieved by an interlocutory order refusing a pseudonym has standing to seek leave to appeal; Levine J’s refusal constituted an order within the meaning of Supreme Court Act 1970 (NSW) s 101; the evidence established both the genuineness and reasonableness of the Witness’s fears, thus the interests of justice warranted the making of a pseudonym order, which minimally interferes with open justice and is necessary to protect the witness and assure reliable testimony.

Court Disposition

Leave to appeal granted, appeal allowed.

Orders

  • ['The Witness is to be addressed and referred to in court only by a pseudonym.' 'Any matter likely to lead to identification of the Witness is not to be reported by those in court.' 'No photographs, film, video recording, drawing or other likenesses are to be made of the Witness in court or within its precincts.'...