Dong v Song

In the case of Dong v Song, the plaintiff sought to admit a video recording made by her during a meeting with the defendants. The defendants objected to the admission of the video recording on the grounds that it was obtained in contravention of the Listening Devices Act 1992 (ACT) (Act), which generally prohibits the use of listening devices. The court was required to determine whether the recording and the plaintiff’s affidavit evidence based on the recording were admissible under the Act. This involved examining the exceptions to the prohibition on the use of listening devices and whether the plaintiff had objectively reasonable grounds to consider the recording necessary for the protection of her lawful interests.

The court examined s 4(3)(b)(i) and s 5(2)(c) of the Act, which provide exceptions to the offences created by s 4 and s 5. Section 10 of the Act governs the admissibility of evidence obtained using listening devices, and it was necessary to determine whether any of the exceptions in s 10(2) applied to the present case. The court found that the plaintiff, as a party to the conversation, had knowledge of the conversation independent of the recording, and therefore the exception in s 10(2)(e) applied. The court also considered the requirement in s 10(2)(f) that the evidence must be necessary for the protection of lawful interests, and found that the plaintiff had objectively reasonable grounds to consider the recording necessary.

The court admitted the video recording and the evidence of the plaintiff to the extent that it was reliant upon it, finding that the exceptions in the Act applied. The court noted that the exceptions were consistent with similar provisions in the repealed Listening Devices Act 1984 (NSW), as demonstrated in Chao v Chao, Violi v Berrivale Orchards Ltd, and Sepulveda v R. The court also found that the plaintiff’s knowledge of the conversation was not derived from the use of the listening device, and therefore the exclusion in s 10(1) did not apply.

The court ordered that the video recording and the evidence of the plaintiff based on the recording were admissible in the proceedings. The court provided written reasons for its ruling, indicating that the recording and the evidence were necessary for the protection of the plaintiff’s lawful interests, and that the exceptions in the Act applied. The court also noted that the admission of the evidence was consistent with the principles of justice and fairness, and that the defendants’ objections were accordingly overruled.