Brown v Etna Developments Pty Ltd (surveillance devices)

[2025] NSWSC 218

Supreme Court

New South Wales

Medium Neutral Citation:

Brown v Etna Developments Pty Ltd (surveillance devices) [2025] NSWSC 218

Hearing dates:

12 March 2025

Date of orders:

12 March 2025

Decision date:

12 March 2025

Jurisdiction:

Equity - Technology and Construction List

Before:

Rees J

Decision:

Recording admitted.

Catchwords:

EVIDENCE – admissibility of video recording - s 11 Surveillance Devices Act 2007 (NSW) – defendant filmed while speaking to plaintiffs – told that he is being filmed – continues to converse – whether “consent, express or implied”.

WORDS AND PHRASES — “consent, express or implied” — Surveillance Devices Act 2007 (NSW), s11(2)(a)(ii)

Legislation Cited:

Surveillance Devices Act 2007 (NSW), ss 7(1)(b), 7(3)(a), 11(1), 11(2)(a)(ii)

Category:

Procedural rulings

Parties:

Edmund Brown (First Plaintiff)
Irena Saric (Second Plaintiff)
Etna Developments Pty Ltd (First Defendant)
Nutek Constructions Pty Ltd (Second Defendant)
Fotis Kalantzis (Third Defendant)
Nick Kalantzis (Fourth Defendant)
Konstadinos Kalantzis (Fifth Defendant)
Alexander Kalantzis (Sixth Defendant)

Representation:

Counsel:
AJ Rogers (Plaintiffs)
A Gauja (Fourth Defendant)

Solicitors:
Ken Law Group (Plaintiff)
CMI Law Firm (Fourth Defendant)
Fotis Kalantzis (In person, Third Defendant)
Konstadinos Kalantzis (In person, Fifth Defendant)
Alexander Kalantzis (In person, Sixth Defendant)

File Number(s):

2022/45437

JUDGMENT (ex tempore)

1. The fourth defendant, Nick Kalantzis, objects to the tender of a video recording on the basis that it was recorded contrary to s 11(1) of the Surveillance Devices Act 2007 (NSW).

2. It is an offence to use a listening device to record a private conversation: s 7(1)(b), Surveillance Devices Act 2007. It is not an offence if “all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used”: s 7(3)(a). Further, s 11(1) provides:

A person must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person’s knowledge as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of this Part.

3. Again, it is not an offence if the communication or publication is made “with the consent, express or implied, of all the principal parties to the private conversation or activity”: s 11(2)(a)(ii).

4. As such, the critical question is whether the fourth defendant consented, expressly or impliedly, to his conversation with the plaintiffs being recorded. (Obviously enough, the other principal parties to the conversation, being the plaintiffs, consented to the recording.) If he did, then it was not an offence to record the conversation and nor it is an offence to publish the recording in these proceedings.

5. It is not suggested that the fourth defendant gave express consent. The question is whether, by implication, he consented to the conversation being recorded. Counsel for the fourth defendant submitted that he demonstrated a lack of consent by raising his hand towards the camera in a protesting manner.

6. The fourth defendant did not object to me viewing the video in order to determine its admissibility. The video was played on a voir dire.

7. It is apparent from viewing the video that the person holding the camera, the second plaintiff, Irena Saric, was openly videoing the fourth defendant. The camera was not secreted in any way. He was being filmed in plain sight.

8. Further, the first plaintiff, Edmund Brown, informed the fourth defendant at the outset that he was videoing their interaction, “Listen Nick, we’re recording this after the last guy alright?”. That is, it was not only obvious that the fourth defendant was being recorded; he was also told he was being filmed and why.

9. The fourth defendant did not then object but continued to converse with the plaintiffs. A minute or so later, the fourth defendant said, “What’s all this videoing shit”, while smiling and gesturing towards the camera. He continued to converse with the plaintiffs.

10. Ms Saric was not the only one filming. The fourth defendant’s colleague, “Sam”, was also filming from a distance. Mr Brown asked the fourth defendant why Sam was “filming us, on our property?”, to which the fourth defendant responded, “look, don’t waste your video”. Mr Brown asked why Sam was filming then and the fourth defendant replied, “Because you’re filming him. So that’s what people do now. TikToks … Facebooks.” The fourth defendant then instructed Sam to “stop filming ... Don’t worry about filming”, although it appears that Sam continued to do so. (Several minutes later, Mr Brown said, “This guy is still filming us now”.)

11. The fourth defendant did indeed raise his hand towards the camera at various times. However, these gestures appear to have been made in order to placate plaintiffs’ concerns during a heated discussion about the removal of a power pole on their property. The fourth defendant raised his hand and said, “Ed, don’t worry. I said to Irena the other day, don’t take any notice of Kon”. Later, the fourth defendant raised his hand and stated, “I’ll come and talk to you, don’t worry”. The remaining hand gestures towards the camera appear to have been made in the general nature of conversational body language and do not convey an objection to the video recording. If anything, on occasion, the fourth defendant appeared to be ‘playing to’ the camera.

12. Having viewed the video, I am comfortably satisfied that the video was taken with the implied consent of the fourth defendant. The fourth defendant had knowledge that his conversation was being recorded: he could see that he was being filmed and he was told that he being filmed. By his conduct, the fourth defendant evinced an acceptance that, in order to continue to have this conversation with the plaintiffs, he would be filmed. The fourth defendant did not have to continue the conversation, either on that condition or at all, but he continued to converse with the plaintiffs at length. He did not object to the condition, beyond muted complaints voiced some time later, accompanied by comments indicating his resignation to the condition, “that’s what people do now. TikToks … Facebooks.” The recording thus does not fall foul of the prohibition in s 7(1) of the Surveillance DevicesAct. Nor does the tender of the recording fall foul of s 11(1) of the Act.

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Decision last updated: 18 March 2025