Ex Parte
[2014] WASC 454
•2 DECEMBER 2014
EX PARTE DE COSTA [2014] WASC 454
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 454 | |
| Case No: | SDA:86/2014 | 28 NOVEMBER 2014 | |
| Coram: | MITCHELL J | 2/12/14 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MARK GERARD DE COSTA |
Catchwords: | Surveillance Devices Act 1998 (WA) Application for order allowing publication or communication in the public interest Where communication to be made in the course of a statutory duty |
Legislation: | Surveillance Devices Act 1998 (WA), s 9, s 31, s 32 |
Case References: | Channel Seven Perth Pty Ltd v 'S' (A Company) [2007] WASCA 122; (2007) 34 WAR 325 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
MARK GERARD DE COSTA
Applicant
Catchwords:
Surveillance Devices Act 1998 (WA) - Application for order allowing publication or communication in the public interest - Where communication to be made in the course of a statutory duty
Legislation:
Surveillance Devices Act 1998 (WA), s 9, s 31, s 32
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr D E Leigh
Solicitors:
Applicant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Channel Seven Perth Pty Ltd v 'S' (A Company) [2007] WASCA 122; (2007) 34 WAR 325
1 MITCHELL J: These are my reasons for dismissing an application for an order that the applicant may publish or communicate a private conversation that has come to the applicant's attention as a direct or indirect result of the use of a listening device. The application is made under s 31 of the Surveillance Devices Act 1998 (WA).
Facts
2 The applicant is a shift inspector in the Department of Racing, Gaming and Liquor (Department), and has been appointed as an authorised officer under s 14 of the Liquor Control Act 1988 (WA). He has been required by a delegate of the Director of Liquor Licensing (Director) to prepare a report in relation to an application for a liquor licence made under the Liquor Control Act.
3 One of the issues which the Director is required to address is whether the applicant for the liquor licence is a fit and proper person to be the licensee of licensed premises.1 Another issue which the Director will be required to consider is whether each person directly or indirectly interested in the application or in the business, or the profits or proceeds of the business, to be carried on under the licence is a fit and proper person to be so interested.2
4 In the course of investigating the matter, the applicant has come into possession of a recording of a private conversation between the applicant for the liquor licence and another person.
5 In the recording, statements are made by the applicant for the liquor licence which are capable of supporting an inference that the applicant for the liquor licence is acting on behalf of another person, whose involvement in the relevant business has not been disclosed to the Department by the applicant for the liquor licence. The other person is a person who has previously been found not to be a fit and proper person to hold a liquor licence.
6 The applicant now wishes to provide the recording to a delegate of the Director for the purpose of enabling the delegate to consider the recording in determining the application for the liquor licence.
Publication in the course of duty
7 Section 9(1) of the Surveillance Devices Act creates an offence where, relevantly, a person knowingly publishes or communicates a private conversation that has come to the person's knowledge as a direct or indirect result of the use of a listening device. Section 9(2) provides that s 9(1) does not apply in a number of circumstances.
8 One circumstance in which s 9(1) does not apply, provided for in s 9(2)(a)(v) of the Surveillance Devices Act, is where the publication or communication is made 'in the course of the duty of the person making the publication or communication'. Section 9(3) limits the operation of s 9(2) to cases where one or more of four criteria are satisfied. One criterion is that the publication or communication is no more than is reasonably necessary in the performance of the duty of the person making the publication or communication.
9 In my view, it is clear that s 9(2)(a)(v)of the Surveillance Devices Act does enable the applicant to lawfully disclose the recording to the Director's delegate in the course of providing a report on an application for a liquor licence. In making that communication, the applicant is performing the duty imposed on him by s 153 of the Liquor Control Act, which relevantly provides that:
An inspector, or a person authorised by the Director under section 15, may examine, and shall report on, any matter affecting the administration of this Act upon which the Director requires a report.
10 Whatever the scope of the concept of 'duty' referred to in s 9(2)(a)(v) of the Surveillance Devices Act, it must at least comprehend a statutory duty imposed on a public officer of a State government department to make a report of the kind required by s 153 of the Liquor Control Act. The provision of a report required by the Director's delegate into matters relating to the liquor licence application clearly involve the performance of a statutory duty by the applicant. Given the central relevance of the recording to the matters which the Director is required to consider in determining the liquor licence application, the inclusion of the recording in the report clearly occurs in the course of the applicant's duty to make a report under s 153 of the Liquor Control Act. The inclusion of this relevant material in the report is reasonably necessary in the performance of that duty.
11 Therefore, in my view, it is clear beyond doubt that the proposed communication by the applicant to the Director's delegate in a report relating to the liquor licence application would not infringe s 9 of the Surveillance Devices Act.
Publication in the public interest
12 Another circumstance in which s 9(1) does not apply is where the publication or communication occurs in accordance with pt 5 of the Surveillance Devices Act. Section 31(1) of that Act, which is located in pt 5, provides that:
A judge may make an order that a person may publish or communicate a private conversation … that has come to the person's knowledge as a direct or indirect result of the use of a listening device … under Division 2 or 3, if the judge is satisfied, upon application being made in accordance with section 32, that the publication or communication should be made to protect or further the public interest.
13 The power contained in s 31(1) was considered by the Court of Appeal in Channel Seven Perth Pty Ltd v 'S' (A Company). In that case, McLure JA (with whom Pullin JA concurred) noted that:
Part 5 will only be called in aid when the conduct does not fall within the specific exceptions nominated in the prohibition sections. The discretion in s 31 must be intended to cover situations not provided for in the specific exceptions in s 9.3
14 In separate reasons, Buss JA said:
In my opinion, Pt 5 of the Act may be called in aid not only when a proposed publication or communication plainly does not fall within the specific exceptions to the statutory prohibition, but also where there is doubt as to whether the proposed conduct falls within one of the exceptions in s 9(2) or whether a condition in s 9(3) will be satisfied.4
15 Consistently with the above observations, in my opinion s 31 does not authorise an application for an order allowing a publication or communication which is clearly covered by one or more of the specific exceptions in s 9 of the Surveillance Devices Act. At least where there is no doubt that the publication or communication is authorised by specific exceptions, Parliament cannot have intended that a person have a right to engage the limited resources of this court simply out of an over-abundance of caution.
16 In this case there is, in my view, no room for doubt that the proposed communication of the recording by the applicant to the Director's delegate is authorised by s 9(2)(a)(v) and s 9(3)(a)(ii) of the Surveillance Devices Act. In those circumstances, there was no warrant for making the application under s 31 of the Surveillance Devices Act in the present case. For that reason, I dismissed the application.
1 Section 37(1)(a) of the Liquor Control Act.
2 Section 37(1)(d) of the Liquor Control Act.
3Channel Seven Perth Pty Ltd v 'S' (A Company) [2007] WASCA 122; (2007) 34 WAR 325 [25].
4Channel Seven Perth Pty Ltd v 'S' (A Company) [57].
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