Boral Resources (Vic) Pty Ltd v CFMEU (Ruling No 3)

[2015] VSC 462

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2013 00928

BETWEEN

BORAL RESOURCES (VIC) PTY LTD (ACN 004 620 731) AND OTHERS	Plaintiffs
and
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION	Defendant

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 September 2015
DATE OF RULING:	2 September 2015
CASE MAY BE CITED AS:	Boral Resources (Vic) Pty Ltd v CFMEU (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2015] VSC 462

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EVIDENCE – recordings (and transcripts thereof) of conversations between call centre of concrete supplier and its customers – customers told at commencement of conversations that they would be recorded – recordings not unlawfully obtained – whether improperly obtained – whether should be excluded as evidence in proceeding – Telecommunications (Interception and Access) Act 1979 (Cth) ss 6(1), 63(1), Surveillance Devices Act 1999 (Vic), s 11(1) and (2), Evidence Act 2008 (Vic) ss 135, 138(1).

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APPEARANCES:	Counsel	Solicitors
For the plaintiffs	Mr S Wood QC with Mr E Gisonda	Herbert Smith Freehills
For the defendant	Ms R Doyle SC with Mr J Gurr and Ms P Knowles	Slater and Gordon

HIS HONOUR:

1. The union seeks the exclusion of evidence under s 138(1) of the Evidence Act 2008 (Vic) upon the basis that it was unlawfully obtained and the desirability of admitting the evidence does not outweigh the undesirability of doing so.

1. The evidence is constituted by recordings, and transcripts of recordings, of five telephone conversations occurring between operators of Boral’s call centre and its customers.  The conversations are said to contain evidence that is relevant to the impact of the union bans upon Boral, namely the cancellation of orders of concrete due to those bans.

1. The union has reserved certain objections to the admissibility of the evidence.

1. It was common ground that the recordings were not illegally obtained. In particular, the recordings were not interceptions within s 6(1) of the Telecommunications (Interception and Access) Act 1979 (Cth) and therefore not prohibited under s 63(1) of that Act. That is because (as regards s 6(1)) Boral was a party to the conversations and (as regards s 63(1)) the customers knew the conversations were being recorded.

1. Nor would use of the recordings (and transcripts) as evidence of the conversations offend the prohibition in s 11(1) of the Surveillance Devices Act 1999 (Vic). At the very least that use would represent communication or publication of the conversations ‘in the course of legal proceedings’ as permitted by s 11(2)(c) of that Act. The permissions in s 11(2)(a) and (b) might also apply.

1. It is well established that, for the purposes of excluding evidence under s 138(1) of the Evidence Act, evidence may be improperly obtained even though it was not unlawfully obtained. It follows that, while the recordings and transcripts were not unlawfully obtained and, indeed, their use as evidence in this proceeding would not itself be unlawful, such evidence could still be excluded under s 138(1) if it was improperly obtained.

1. Turning to the conversations, in three (numbers 6318802, 6318824 and 6319072) the calling customer was told at the commencement of the conversation by a pre-recorded message that the call would be recorded as a business record.  In one (number 5958674), the called customer was told the same thing by the Boral caller at the commencement of the conversation.  In the remaining conversation (number 5797159), the calling customer was told at the commencement of the conversation by a pre-recorded message that the call would be monitored for quality and training purposes. 

1. Resulting from calls made to or from a call centre, the conversations in question occurred between a large concrete supply company and its customers in the building industry.  They were not secretly recorded.  Disclosed recording of such conversations is commercially routine.  In my view, there is nothing in the evidence to support a conclusion that the recording of the conversations (and the subsequent preparation of the transcripts) was improper.  I reject the union’s submissions to the contrary.

1. On examination, the grounds advanced by the union for treating the recordings and transcripts as improperly obtained related to their use as evidence in this proceeding, not to the manner in which they were obtained.  It was submitted, for example, that the disclosure made to the customers would not have put them on notice that the recordings (and therefore the transcripts) might end up being used as evidence in legal proceedings. 

1. Alleged misuse of lawfully and properly obtained evidence falls to be dealt with by way of discretionary exclusion under, say, s 135 of the Evidence Act, not under s 138(1). Reflecting the different purposes of the two grounds of exclusion, the criteria in these provisions are different. In summary, the question under s 135 is whether the evidence should be excluded because its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the objecting party. Here the union did not, and could not, so contend.

1. As I have already mentioned, the context of all the calls was commercial.  Mostly the customers called the Boral call centre but one was called from it.  While personal matters (not relevant to the issues in the present proceeding) were incidentally discussed in some cases, the conversations were mainly about the purchase and supply of concrete and the cancellation of orders due to the union’s bans.  All of the customers were told at the commencement of the conversations that the calls would be recorded.  All but one was told that the recordings would be business records.  That one customer was told that the recording was for quality and training purposes.  In my view, a reasonable customer in the position of the customers in this commercial setting would understand that such recordings (and transcripts of them) might be used as evidence in legal proceedings.

1. I therefore overrule the objections and admit the evidence.

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