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)

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).
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.

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).
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.
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.
The fourth defendant did…

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.

Continue reading Brown v Etna Developments Pty Ltd (surveillance devices)

Details

AGLC: Brown v Etna Developments Pty Ltd (surveillance devices) [2025] NSWSC 218
Case: [2025] NSWSC 218
Decision Date: 12 March 2025

CaseChat Overview and Summary

The case of Brown v Etna Developments Pty Ltd involved a dispute concerning the admissibility of a video recording as evidence in a legal proceeding. The plaintiffs, Brown, alleged that the defendants, Etna Developments Pty Ltd, had unlawfully installed and operated surveillance devices on their property without their consent. The matter was heard in the Supreme Court of New South Wales. The legal issue at the heart of the case was whether the video recording captured by the surveillance devices was admissible under the Surveillance Devices Act 2007 (NSW). Specifically, the court had to determine whether the defendant's filming of the plaintiffs, despite being informed that they were being recorded, constituted "consent, express or implied" as required by section 11(2)(a)(ii) of the Act.

The court examined the provisions of the Surveillance Devices Act 2007 (NSW) and focused on the definition of "consent" within the context of the Act. The plaintiffs argued that the defendant's continued conversation with them, after being informed of the recording, did not amount to consent as it was not unequivocal and explicit. The court acknowledged the importance of privacy and the need to protect individuals from unwarranted surveillance. However, it also considered the practicalities of determining consent in such situations. Ultimately, the court found that the defendant's actions, in continuing the conversation despite being informed of the recording, constituted implied consent. This conclusion was based on the reasoning that the defendant's willingness to engage in conversation under those circumstances demonstrated an acceptance of the recording.

Consequently, the court ruled in favour of the defendants and held that the video recording was admissible as evidence. The court's decision was based on the interpretation that the defendant's conduct demonstrated implied consent, satisfying the requirements of section 11(2)(a)(ii) of the Surveillance Devices Act 2007 (NSW). This ruling highlights the importance of clear and explicit consent when it comes to the use of surveillance devices and the admissibility of evidence obtained through such devices.

Orders