Australian Broadcasting Corporation v SAWA Pty Ltd - [2018] WASCA 29

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: AUSTRALIAN BROADCASTING CORPORATION -v- SAWA PTY LTD [2018] WASCA 29

CORAM: BUSS P
MURPHY JA
BEECH JA

HEARD: 12 FEBRUARY 2018

DELIVERED : 15 MARCH 2018

FILE NO/S: CACV 117 of 2017

BETWEEN: AUSTRALIAN BROADCASTING CORPORATION
Appellant
AND
SAWA PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :CHANEY J
File No  :CIV 2939 of 2017

Catchwords:

Surveillance devices - Application for permission to publish video-recording of private activity - Video played in open court in prosecution - Prosecution and video said to be relevant to proposed legislative amendments in Bill currently before Parliament - Whether widespread publication should be made to further public interest - Whether any appellable error in judge's decision

Legislation:

Surveillance Devices Act 1998 (WA), s 31

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr G R Donaldson SC & Mr B H Taylor
Respondent: Mr J D MacLaurin

Solicitors:

Appellant: Mills Oakley
Respondent: Salerno Law

Case(s) referred to in judgment(s):

A v Corruption and Crime Commission [2013] WASCA 288; (2013) 306 ALR 491
Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; (2013) 249 CLR 1
Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Bunning v Cross (1978) 141 CLR 54
Channel Seven Perth Pty Ltd v S [2007] WASCA 122; (2007) 34 WAR 325
Electrolux Home Products Pty Ltd v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309
House v The King [1936] HCA 40; (1936) 55 CLR 499
Minister for Aboriginal Affairs v Peko‑Wallsend (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Norbis v Norbis (1986) 161 CLR 513
Potter v Minahan (1908) 7 CLR 277
Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221; (2009) 41 WAR 288
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
SAWA Pty Ltd v Australian Broadcasting Corporation [2017] WASC 349
SAWA Pty Ltd v Swift [2016] WASC 331
Wotton v The State of Queensland [2012] HCA 2; (2012) 246 CLR 1
JUDGMENT OF THE COURT:

Introduction

The appellant (the ABC) challenges the decision of the primary judge[1] to refuse its application for an order pursuant to s 31 of the Surveillance Devices Act 1998 (WA) (the Act), permitting it to publish and broadcast certain video recordings of activities at a cattle station owned and operated by the respondent (SAWA).
[1] SAWA Pty Ltd v Australian Broadcasting Corporation [2017] WASC 349 (primary reasons).
The question for the judge was whether he was satisfied that the publication of the recordings should be made to protect or further the public interest within the meaning of s 31 of the Act. That involves a broad evaluative judgment on which minds may reasonably differ. For the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] WASCA 29
Decision Date: 15 MARCH 2018

CaseChat Overview and Summary

The Australian Broadcasting Corporation (ABC) sought to publish and broadcast video recordings taken at a cattle station in Western Australia, which were made by an employee of SAWA Pty Ltd. The video recordings, which were played in open court in a prosecution against SAWA and its director, showed the dehorning and euthanising of cattle. The primary judge had previously refused the ABC's application for an order under s 31 of the Surveillance Devices Act 1998 (WA), which would have permitted the ABC to publish the video recordings. The ABC appealed the decision to the Supreme Court of Western Australia. The court was required to determine whether the primary judge erred in his decision to refuse the application. In particular, whether the primary judge erred in his evaluation of whether the publication of the recordings should be made to protect or further the public interest. The court found that the primary judge's decision was not an appellable error. The broad evaluative judgment involved in determining whether the publication of the recordings should be made to protect or further the public interest is one on which reasonable minds might differ. The primary judge was not required to consider the proposed legislative amendments in the Bill before Parliament, as they were not relevant to the question of whether the publication of the recordings should be made to protect or further the public interest. The court also found that the primary judge was not required to consider the possible consequences of the publication of the recordings on the proposed legislative amendments. The appeal was dismissed.

The primary judge's decision to refuse the ABC's application for an order permitting it to publish the video recordings is affirmed. The court found that the primary judge's decision was not an appellable error. The primary judge's broad evaluative judgment on whether the publication of the recordings should be made to protect or further the public interest is one on which reasonable minds might differ. The court found that the primary judge was not required to consider the proposed legislative amendments in the Bill before Parliament, as they were not relevant to the question of whether the publication of the recordings should be made to protect or further the public interest. The court also found that the primary judge was not required to consider the possible consequences of the publication of the recordings on the proposed legislative amendments. The appeal is dismissed with costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The appellant (the ABC) challenges the decision of the primary judge[1] to refuse its application for an order pursuant to s 31 of the Surveillance Devices Act 1998 (WA) (the Act), permitting it to publish and broadcast certain video recordings of activities at a cattle station owned and operated by the respondent (SAWA). [1] SAWA Pty Ltd v Australian Broadcasting Corporation [2017] WASC 349 (primary reasons). The question for the judge was whether he was satisfied that the publication of the recordings should be made to protect or further the public interest within the meaning of s 31 of the Act. That involves a broad evaluative judgment on which minds may reasonably differ. For the reasons that follow, the ABC has not demonstrated that the judge made an appellable error. Consequently, the appeal must be dismissed. In July 2012, an employee of SAWA secretly videoed activity at a cattle station in the north‑west of Western Australia. Most of it related to the dehorning of cattle. One video‑recording showed the euthanising of an animal. The employee made the recordings because of his concern as to the welfare of animals and with a view to reporting his concern to an appropriate authority.[3] He made the video‑recordings available to the RSPCA.[4][3] Primary reasons [15]. [4] Primary reasons [15]. In about July 2014, SAWA and its director, Mr Botha, were charged by an inspector of the RSPCA with eight animal cruelty offences contrary to s 19 of the Animal Welfare Act 2002 (WA). The prosecution relied heavily on the video footage.[5] [5] Primary reasons [2]. Objection was taken at trial to the tender of the video footage on the basis that its recording was a contravention of the Surveillance Devices Act. At trial it appears it was accepted that the recording was a contravention.[6] The issue was as to the exercise of the court's discretion to exclude the evidence, having regard to the principles in Bunning v Cross.[7] [6] It is not clear whether the accepted contravention occurred as a result of the use of the device to make a recording in alleged contravention of s 6 of the Act, or the publication of the recording to the RSPCA in alleged contravention of s 9 of the Act.[7] Bunning v Cross (1978) 141 CLR 54. The magistrate ruled that the video‑recording should not be excluded.[8][8] Primary reasons [2]. At trial, SAWA and Mr Botha were acquitted of all but one of the charges. They successfully appealed the single conviction to the Supreme Court. The conviction was overturned and a judgment of acquittal entered.[9][9] Primary reasons [3]; SAWA Pty Ltd v Swift [2016] WASC 331. The appeal was heard on 5 October 2016. Reasons for decision were delivered on 14 October 2016. On 13 October 2016, an employee of the ABC lodged an application in the Magistrates Court, pursuant to s 33 of the Magistrates Court Act 2004 (WA), seeking to obtain a copy of the video‑recordings tendered in the proceedings before the magistrate. On 1 November 2016, the employee received an email from the Magistrates Court registry indicating that the magistrate had approved the application.[10][10] Primary reasons [4].