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Chao v Chao

Chao v Chao

Case [2008] NSWSC 584 8 May 2008

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CITATION: Chao v Chao [2008] NSWSC 584

HEARING DATE(S): 8 May 2008

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 8 May 2008

DECISION: The recorded conversation is admissible subject to proof of accuracy of transcript.

CATCHWORDS: EVIDENCE – Admissibility of evidence – where evidence being adduced is a transcript of a recorded telephone conversation – where recording made by holding tape recorder to speaker - (CTH) Telecommunications (Interception and Access) Act 1979 – whether recorded conversation is an interception of communication passing over a telecommunications system – whether recorded conversation had become accessible to the intended recipient of the communication. - EVIDENCE – Admissibility of evidence – where evidence being adduced is a transcript of a recorded telephone conversation – (NSW) Listening Devices Act 1984 – whether recorded conversation obtained unlawfully – whether recorded conversation had become known to the party only through use of the listening device – whether use of the listening device was reasonably necessary for the protection of the lawful interests of principal party by whom it was recorded.

LEGISLATION CITED: (NSW) Evidence Act 1995, ss 128, 132
(NSW) Listening Devices Act 1984, ss 5, 13
(CTH) Telecommunications (Interception and Access) Act 1979, ss 5F, 5H, 7

CATEGORY: Procedural and other rulings

CASES CITED: Ferrall v Blyton [2000] FamCA 1442; (2000) FLC 93-054

PARTIES: Ping Jung Chao (plaintiff)
Sheng-Chun Chao (defendant)

FILE NUMBER(S): SC 4398/07

COUNSEL: Mr J B Simpkins SC (plaintiff)
Mr N G Ford (sol) (defendant)

SOLICITORS: Helen Sin Legal Pty Ltd (plaintiff)
Brischetto & Ford Solicitors (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

8 May 2008

4398/07 Ping Jung Chao v Sheng-Chun Chao

JUDGMENT

1 HIS HONOUR: In paragraph 52 of her affidavit affirmed 3 April 2008 the plaintiff deposes as follows:

On 15 December 2007, I had telephone conversations with the Defendant. The telephone conversations were recorded. The transcript is exhibited hereto and marked PJC-30.

(a) The relevant contents of our conversations are in the paragraphs 13-15 of my Affirmation of the 18 December 2007.

2 Exhibit PJC 30 comprises what purports to be a typed transcript of a conversation between the plaintiff and the defendant, partly in English and partly in Mandarin, accompanied by a translation by an accredited translator of the transcript into English alone. The evidence does not at this stage disclose how the transcript – as distinct from the translation – was prepared, nor prove the accuracy of the transcript, and that is a matter which, if objection is maintained to it, will require further consideration; but at this stage I am concerned primarily with the admissibility of paragraph 52, and the transcript, assuming its accuracy is established or conceded, objection having been taken primarily on the basis that the evidence was unlawfully obtained and inadmissible by reason of (CTH) Telecommunications (Interception and Access) Act 1979, or (NSW) Listening Devices Act 1984.

3 On the voir dire, the plaintiff was asked to…

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 Chao v Chao

Details

AGLC: Chao v Chao [2008] NSWSC 584
Case: [2008] NSWSC 584
Decision Date: 8 May 2008

CaseChat Overview and Summary

The case of Chao v Chao involved a dispute between two individuals, Chao and Chao, where the primary issue was the admissibility of a recorded telephone conversation as evidence. The matter was heard in the Supreme Court of New South Wales. The recorded conversation was made by one party holding a tape recorder to the speakerphone during a call, and this recording was sought to be introduced as evidence in the legal proceedings.

The legal issues before the court were twofold: firstly, whether the recording constituted an interception of a communication under the Commonwealth Telecommunications (Interception and Access) Act 1979; and secondly, whether the recording was obtained unlawfully under the New South Wales Listening Devices Act 1984. The court needed to determine whether the conversation had become accessible to the intended recipient of the communication, and whether the use of the listening device was reasonably necessary for the protection of the lawful interests of the party who recorded the conversation.

The court found that the recording did not constitute an interception under the federal Act, as the conversation had already been made accessible to the intended recipient. Regarding the state Act, the court held that the recording was not obtained unlawfully, provided that the use of the listening device was reasonably necessary for the protection of the lawful interests of the party who recorded it. In this instance, the court considered the circumstances and determined that the recording was admissible as evidence.

The final orders of the court were to admit the transcript of the recorded telephone conversation as evidence in the proceedings, subject to the conditions outlined in the court's reasoning.

Orders