Farris v Boase - [2013] WASC 227

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: FARRIS -v- BOASE [2013] WASC 227

CORAM: MASTER SANDERSON

HEARD: 18 MARCH 2013 & 29 MAY 2013

DELIVERED : 29 MAY 2013

PUBLISHED : 12 JUNE 2013

FILE NO/S: CIV 1707 of 2012

BETWEEN: RONALD SYDNEY PRITCHARD FARRIS
Plaintiff
AND
TIMOTHY BOASE
Defendant

Catchwords:

Surveillance Devices Act - Private conversations recorded without knowledge of plaintiff - Refusal of defendant to deliver up recordings and undertake not to make further publications - Turns on own facts

Legislation:

Nil

Result:

Injunction granted against defendant

Category: B

Representation:

Counsel:

Plaintiff: Mr T M Clavey
Defendant: In person

Solicitors:

Plaintiff: Clyde & Co Australia
Defendant: In person

Case(s) referred to in judgment(s):

Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72
The Boase Family Trust with Trustee Timothy Boase as the representative party v Sullivan Commercial Pty Ltd t/a McGees Property & Wayne Srhoy [2011] FCA 510

MASTER SANDERSON: This action was brought by the plaintiff to restrain the defendant from using recordings the defendant made of two conversations between the plaintiff and the defendant - recordings which were made without the consent of the plaintiff. It was a remarkably straight forward and simple case. The defendant attempted to draw in all sorts of irrelevant material which he mistakenly thought would assist his position. Really there was no dispute as to the essential facts and the applicable law is quite clear.
The facts can be summarised in the following way. In 2010, the plaintiff commenced proceedings in the Federal Court: The Boase Family Trust with Trustee Timothy Boase as the representative party v Sullivan Commercial Pty Ltd t/a McGees Property & Wayne Srhoy [2011] FCA 510 In the course of that litigation Mr Srhoy produced an affidavit sworn on 1 April 2011. That affidavit had to do with the process by which Mr Srhoy valued certain property in Baldivis. Whether or not that property valuation was negligently performed was at the heart of the Federal Court proceedings. In the course of his affidavit Mr Srhoy said:
At around the same time, I also contacted Ron Farris of Ron Farris Real Estate. Mr Farris said words to me to the effect that he had recently negotiated the contracts of sale for a large land holding which adjoined the property. I was advised by Mr Farris that the contracts were for:
47.1lots 1 and 3 Zigzag Road;
47.2lots 2, 6, 513 and 511 Baldivis Road;
47.3lot 510 Bodman Place; and
47.4lots 516 ‑ 518 Sabrina Road [47].
The defendant wished to ascertain whether what Mr Srhoy said was correct. At that time he had not met the plaintiff, although his sister had worked for the plaintiff for sometime. The defendant phoned the plaintiff and asked for a meeting. The plaintiff agreed. The meeting was set for 5 July 2007. It was to take place in the plaintiff's office. The defendant concealed a recording device in his glasses case. The plaintiff had no idea his conversation with the defendant was being recorded.
A copy of the transcript of the recording is exhibit 67. The course of the discussion between the plaintiff and the defendant is somewhat difficult to follow. But, putting it at its most advantageous for the defendant, the plaintiff says he did not provide Mr Srhoy with the information set out in par 47 of the affidavit. In other words, what was said by the plaintiff could have been assistance to the defendant in the Federal Court proceedings.
The meeting concluded with the parties agreeing they would meet again in the future. The plaintiff undertook to make further inquiries in relation to matters mentioned in Mr Srhoy's affidavit. The meeting appears to have been entirely amicable and the sense from reading the transcript is the plaintiff was more than willing to assist the defendant.
The plaintiff and the defendant did meet again on 2 August 2011. Once again, the defendant surreptitiously recorded their discussion. A transcript of what was said is exhibit 68. There is no evidence any further discussions of any significance took place between the plaintiff and the defendant in the period between the two meetings.
It is not entirely clear from the transcript whether or not the plaintiff had made further inquiries about the sales referred to by Mr Srhoy in his affidavit. What is clear is that the plaintiff realised there was a prospect of his being required to give evidence in the Federal Court proceedings. He made it clear he did not want to become involved. The two men did discuss the various properties referred to by Mr Srhoy but the discussion did not appear to take the position much further. Again, putting the best possible interpretation on the conversation, so far as the defendant is concerned, Mr Farris maintained he did not provide the sales information as alleged by Mr Srhoy.
Subsequent to the 2 August meeting, the defendant drafted an affidavit in the name of the plaintiff which embodied the defendant's understanding of the plaintiff's position. A copy of that affidavit forms part of exhibit 12. The draft affidavit was sent to the plaintiff under cover of an email of 7 August 2011. The plaintiff did not respond and follow up emails were sent on 12 August and 16 August. There the matter rested until 15 February 2012 when the defendant advised the plaintiff he had recorded both conversations and the recordings had been transcribed: exhibit 25.
Throughout February of 2012, there continued an email exchange between the plaintiff and the defendant in which the defendant attempted to pressure the plaintiff into signing the draft affidavit. The plaintiff refused. It would seem the defendant then published the transcripts by giving them to a solicitor representing a party in the Federal Court action: see par 8 of the Statement of Claim. Although this publication was not directly admitted by the defendant, it was never denied.
The plaintiff, on becoming aware of the publication, instructed solicitors who issued proceedings on his behalf. Prior to the issue of the proceedings, and subsequently, the plaintiff has required of the defendant delivery up of the recordings, all copies and transcript of those recordings and an undertaking not to further publish any of the recorded material. The defendant refused to provide such undertakings even up to the date of trial.
Before dealing in more detail with the evidence, I should set out the relevant statutory provisions to be found in the Surveillance Devices Act 1998 (WA). Section 5(1) is in the following terms:
(1)Subject to subsections (2) and (3), a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device —
(a)to record, monitor, or listen to a private conversation to which that person is not a party; or
(b)to record a private conversation to which that person is a party.
Penalty:
(a)for an individual: $5,000 or imprisonment for 12 months, or both;
(b)for a body corporate: $50,000.
It was not in dispute between the parties that the defendant had used a listening device to record a private conversation. In other words, the defendant had breached s 5(1)(b) of the act. What the defendant maintained was he fell within the exceptions contained in the act. The first of these exceptions relied upon by the defendant is found in s 5(3)(d). That section is in the following terms:
(3)Subsection (1)(b) does not apply to the installation, use, or maintenance of a listening device by or on behalf of a person who is a party to a private conversation if —
...
(d)a principal party to the private conversation consents expressly or impliedly to that installation, use, or maintenance and the installation, use, or maintenance is reasonably necessary for the protection of the lawful interests of that principal party.
The proper interpretation of this section was considered by Allanson J in Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 [s]. His Honour said:
The authorities support the following propositions:
1.The term 'necessary' is capable of a wide range of meanings. There is, in Australia, 'a long history of judicial and legislative use of the term "necessary", not as meaning essential or indispensable but as meaning reasonably appropriate and adapted': Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 [39]; but compare Lithgow City Council v Jackson [2011] HCA 36; (2011) 281 ALR 223 [50] - [54]. In the context of s 5, particularly qualified by the word 'reasonably', it should be construed as meaning appropriate, but not essential or unavoidable: Sepulveda v The Queen [2006] NSWCCA 379 [116] - [118]. (Section 5 is in similar but not identical terms to the provisions of the New South Wales Act. Despite the differences, the New South Wales authorities are helpful in the understanding of s 5).
2.The word 'reasonably' imports an objective test: Sepulveda [118]; Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 465 [14]; Violi v Berrivale Orchards Ltd [2000] FCA 797; (2000) 99 FCR 580.
3.Whether the use of the device is reasonably necessary is to be judged on the circumstances that existed at the time of the use: Marsden v Amalgamated Television Services [17] - [18], [23]; Amalgamated Television Services Pty Ltd v Marsden [2000] NSWCA 167 [20] - [22]; Violi [23]; See v Hardman [2002] NSWSC 234 [17].
4.The ordinary meaning of 'protection' as shelter, defence or preservation from harm, danger, or evil is apt in the context of s 5: Sepulveda [120].
5.Lawful interests may be distinguished from 'legal interests'. Section 5(3)(c) does not require a legal interest in the sense of a legal right, duty or liability: Violi [28]. A recording made where a serious dispute has erupted and there will be a dispute as to different versions of an arrangement may give rise to a lawful interest: Chao v Chao [2008] NSWSC 584. Generally, a finding depends on the circumstances of the particular case: Sepulveda [125]
There is nothing in the evidence in this case which suggests it was 'reasonably necessary' for the defendant to record his conversation with the plaintiff. Quite the opposite. When the defendant rang the plaintiff to seek his cooperation, a meeting was arranged. The plaintiff did not resist that meeting. There was nothing said to the defendant which suggested in any way that the plaintiff would not cooperate with him. There is nothing to suggest the plaintiff had a reputation for being difficult or devious. Moreover, it is difficult to see how the defendant's 'lawful interests' were at risk. It is rather the case his lawful interests might have been advanced by the plaintiff giving him information which undermined the basis of Mr Srhoy's affidavit.
So far as the defendant is concerned he never came to grips with the issues in this case. His defence filed 20 July 2012, bizarrely, did not even admit the recordings: see par 5 of the defence. It did refer to certain sections of the Surveillance Devices Act upon which the defendant intended to rely. But no material facts were pleaded to flesh out how the defence was to be put.
After the first day of trial, I made the point to the defendant, I was unsure what facts he intended to rely upon to answer the plaintiff's claim. He offered to file an amended defence. Uncharacteristically, I yielded to long suppressed optimism and gave leave for an amended defence to be filed. The resulting defence was incomprehensible, being a mixture of material fact, evidence, submission and comment. It advanced the defendant's case not one jot. It would have been liable to be struck out. I managed to persuade a reluctant counsel for the plaintiff no advantage would be gained in striking out the amended defence and eventually that was the document as it stood.
But, the fact remains that the defendant could not advance any facts to support the proposition he had acted as was reasonably necessary to protect his lawful interest. Under careful cross‑examination on this question, the best he could do was say he had a 'hunch' it was in his best interests to record the conversations.
The defendant runs into the same difficulty with other sections of the Act on which he seeks to rely. Reference is made in the original defence to s 9(2)(a)(v)(vi)(viii)(ix). None of these subsections assist the defendant. The reference to 'legal proceedings' in s 9(2)(a)(ix) would not cover meetings such as those held between the plaintiff and the defendant.
Nor can it be said the recording of these conversations was in the public interest. The phrase 'public interest' is found in s 24 of the Act. The definition does not cover private conversations such as the one presently under consideration. Sections 31 and 32 are not relevant because they deal with applications for leave to publish. That is precisely the reverse of what is at issue in this case.
It was the defendant's position that the granting of injunctions in this case was unnecessary. The defendant said he had not further published the transcripts at present. But in cross‑examination he indicated circumstances might arise in the future where he sought publication of the transcripts as necessary. Effectively, he wanted to reserve the right to publish this material in the future if he thought it appropriate to do so. So he would not give any undertakings. In that circumstance it is proper to issue injunctions to restrain a potential publication by the defendant.
That is sufficient to deal with this case. However, there are two further matters I should refer to. First, there is the evidence of the plaintiff. It must be acknowledged he was an unsatisfactory witness. He made errors both in his written statement of evidence and during cross‑examination. For instance, between par 36 and 41, he describes being given a draft affidavit by the defendant and being asked by the defendant to sign it. In fact, a reading of the transcript and the emails sent by the defendant after the second meeting show clearly no affidavit was produced by the defendant at the second meeting. It was produced subsequently. The plaintiff's evidence was clearly in error. By way of further example, the plaintiff was asked during cross‑examination about certain offer and acceptance documents for land in Baldivis that appear to have been written up by 'Ron Farris Real Estate'. The plaintiff claimed these documents were forgeries. In re‑examination the plaintiff acknowledged the documents were not forgeries and provided an explanation - a not wholly convincing explanation it must be said - as to their existence. Given the documents had been produced by the plaintiff in his discovery, it is difficult to see how he was not aware of their genuineness.
The problem was obviously compounded by the fact the plaintiff had clearly taken an intense personal dislike to the defendant. Fired by righteous indignation, he found it difficult to give straight answers to the defendant's questions put in cross‑examination. Admittedly, many of the questions were so convoluted as to be incomprehensible. But, the plaintiff did not come across as someone who had a clear recollection of events. Perhaps the fact these events had taken place almost three years ago was the reason. Or perhaps the plaintiff is showing some effects of aging.
In the end none of the plaintiff's evidence really mattered. Once it was established the recordings had been made, it was for the defendant to bring himself within the exceptions in the Act. The only way the actions of the plaintiff could have been relevant is if in some way they had caused the defendant to think recording the conversations was reasonably necessary to protect his lawful interests. As I have already indicated, there was no such evidence.
Second, I appreciate the defendant felt he had been prevented from fully presenting his case and putting before the court all material he considered relevant. Part of this was due to the defendant's default. He was ordered to file witness statements by 16 October 2012. That order was made by Registrar Dixon on 11 September 2012. In fact, the defendant filed two witness statements one on 11 March 2013 and the other on 12 March 2013. That was less than a week before the date on which the trial was due to begin. He offered no explanation for his failure to comply with the Registrar's orders.
As I have indicated, the defendant failed to come to grips with the issues in this case. He produced vast volumes of material, all of which was irrelevant. It was clear he took the view, in being denied the opportunity to tender that material, he was being denied a fair hearing. The material was simply irrelevant. Equally, he clearly felt my limiting his time for a closing address was unfair. But, the fact is, he did not address the issues and talking endlessly for no purpose was never going to advance his case.
I will make orders largely in terms of the relief sought in the writ.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: FARRIS -v- BOASE [2013] WASC 227 (S)

CORAM: MASTER SANDERSON

HEARD: 25 JUNE 2013

DELIVERED : 25 JUNE 2013

PUBLISHED : 4 JULY 2013