Georgiou Building Pty Ltd v Perrinepod Pty Ltd
[2012] WASC 72 (S)
•1 MARCH 2012
GEORGIOU BUILDING PTY LTD -v- PERRINEPOD PTY LTD [2012] WASC 72 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 72 (S) | |
| Case No: | COR:23/2011 | 12 SEPTEMBER 2011 | |
| Coram: | ALLANSON J | 1/03/12 | |
| 1/03/12 | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Objection overruled | ||
| B | |||
| PDF Version |
| Parties: | GEORGIOU BUILDING PTY LTD PERRINEPOD PTY LTD |
Catchwords: | Illegally obtained evidence Recording of private conversation Principal party to conversation Protection of lawful interests |
Legislation: | Surveillance Devices Act 1998 (WA), s 5 |
Case References: | Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266 Amalgamated Television Services Pty Ltd v Marsden [2000] NSWCA 167 Barker v The Queen (1994) 54 FCR 451 Chao v Chao [2008] NSWSC 584 Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 Lithgow City Council v Jackson [2011] HCA 36; (2011) 281 ALR 223 Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 465 Miller v Miller (1978) 141 CLR 269 Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 Pearce v Button (1985) 8 FCR 388 See v Hardman [2002] NSWSC 234 Sepulveda v The Queen [2006] NSWCCA 379 Sheldon v Sun Alliance Ltd (1988) 50 SASR 236 Sheldon v Sun Alliance; The Duke Group Ltd (In liq) v Pilmer (1994) 63 SASR 364 Southern Equities Corp Ltd (in liq) v Bond (No 2) [2001] SASC 70; (2001) 78 SASR 554 Violi v Berrivale Orchards Ltd [2000] FCA 797; (2000) 99 FCR 580 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 1 MARCH 2012 FILE NO/S : COR 23 of 2011 MATTER : Sections 459A & 459P of the Corporations Act 2001
Perrinepod Pty Ltd
- Plaintiff
AND
PERRINEPOD PTY LTD
Defendant
Catchwords:
Illegally obtained evidence - Recording of private conversation - Principal party to conversation - Protection of lawful interests
Legislation:
Surveillance Devices Act 1998 (WA), s 5
(Page 2)
Result:
Objection overruled
Category: B
Representation:
Counsel:
Plaintiff : Mr D Ellis
Defendant : Mr S G Leslie
Solicitors:
Plaintiff : Tottle Partners
Defendant : Metaxas & Hager
Case(s) referred to in judgment(s):
Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266
Amalgamated Television Services Pty Ltd v Marsden [2000] NSWCA 167
Barker v The Queen (1994) 54 FCR 451
Chao v Chao [2008] NSWSC 584
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Lithgow City Council v Jackson [2011] HCA 36; (2011) 281 ALR 223
Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 465
Miller v Miller (1978) 141 CLR 269
Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181
Pearce v Button (1985) 8 FCR 388
See v Hardman [2002] NSWSC 234
Sepulveda v The Queen [2006] NSWCCA 379
Sheldon v Sun Alliance Ltd (1988) 50 SASR 236
Sheldon v Sun Alliance; The Duke Group Ltd (In liq) v Pilmer (1994) 63 SASR 364
Southern Equities Corp Ltd (in liq) v Bond (No 2) [2001] SASC 70; (2001) 78 SASR 554
Violi v Berrivale Orchards Ltd [2000] FCA 797; (2000) 99 FCR 580
(Page 3)
1 ALLANSON J: The principal proceedings are an application by Georgiou Building Pty Ltd (Georgiou Building) to wind up Perrinepod Pty Ltd on the ground that it is insolvent.
2 These present reasons relate to an objection by Georgiou Building to the admission into evidence of three annexures to an affidavit of Jean-Mic du Buisson Perrine, sworn 15 June 2011 on the grounds that the evidence was obtained illegally through contravention of s 5 of the Surveillance Devices Act 1998 (WA). Georgiou Building submits that in the exercise of its discretion the court should decline to admit the evidence.
3 The evidence in question comprises a CD containing recordings of two meetings between Mr Perrine and representatives of the plaintiff, and a transcript of that recording for each meeting. The meetings occurred on 30 September 2009 and 15 March 2010.
4 The evidence relating to the present issue is quite limited. Mr Perrine, in his affidavit of 15 June 2011, simply refers to the meetings taking place and says that in accordance with his practice to tape-record important meetings he recorded the meeting on his mobile telephone. The representatives of the plaintiff who attended those meetings have made short affidavits. Each says that he did not give his consent to the meeting being recorded and was unaware that the recording was being done.
The Surveillance Devices Act
5 Under s 5 of the Surveillance Devices Act it is an offence for a person to use a listening device to record, monitor, or listen to a private conversation to which a person is not a party (s 5(1)(a)), or to record a private conversation to which that person is a party (s 5(1)(b)). The Act also regulates the use of optical surveillance devices, and s 6 makes it an offence to use an optical surveillance device to record visually or observe a private activity to which a person is not a party, or to record visually a private activity to which a person is a party.
6 Each of those prohibitions is subject to exceptions. Relevantly for the present case, s 5(3) provides that the prohibition in s 5(1)(b) does not apply to a party to a private conversation if:
(c) each principal party to the private conversation consents expressly or impliedly to that installation, use or maintenance; or
(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.
7 The term 'principal party' is defined in s 3. In relation to use of a listening device, it means 'in relation to a private conversation, a person by or to whom words are spoken in the course of the conversation'. Mr Perrine was a party to the conversations and was a principal party.
8 The defendant submits that the recording was of a business meeting between parties to a joint venture and was not a 'private conversation' within the meaning of the Act. It relies on passages in the judgment in Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266 where Sulan J observed, in relation to the legislation in South Australia, which also uses the expression private conversation, that the ordinary meaning of the term conversation is 'an informal interchange of thoughts by spoken word'. His Honour said:
Although the conversation in the Act should not be given a restricted meaning, the communication should have the characteristics of a conversation which includes a degree of informality and would not normally apply to the proceedings of a committee.
The exchanges at meetings do not have the required characteristics of a conversation. Meetings have formal written agendas upon which the parties exchange positions orally and in writing, including the provision of reports. The parties seek to reach decisions that will affect the legal rights and duties of the parties to the joint venture. A formal record is kept of the meeting. There is a formality about meetings of the joint venture. Statements made and positions taken orally by those entitled to speak at the meeting cannot be said to be conversations in the ordinary meaning of that word [31] - [32].
9 The present case does not appear to coincide with the factual description his Honour gives of the meetings in the case he was considering. There is no suggestion of a formal meeting with positions taken by those 'entitled to speak'. The transcript of what was said does not convey the degree of formality which influenced his Honour. Indeed the first exchange recorded is as follows:
Louis' known me long enough to be able to abuse me occasionally.
Now if I called you a lawyer, I'd be abusing you.
10 I would distinguish this case factually from the circumstances considered in Alliance.
(Page 5)
11 There are also differences between the Western Australian Act and the Listening and Surveillance Devices Act 1972 (SA). The definition of private conversation in each Act is not the same. The South Australian Act, in s 3 defines private conversation to mean:
any conversation carried on in circumstances that may reasonably be taken to indicate that any party to the conversation desires it to be confined to the parties to the conversation.
12 In contrast, the Western Australian Act defines a private conversation as
any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard.
13 In any event, in my opinion, the expression 'private conversation' in the context of the Western Australian Act is not intended to impose a limitation as submitted by the defendant. The function of a definition is not to enact substantive law, but to provide aid in construing the statute. As McHugh J said in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216:
Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better - I think the only proper - course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment [103].
14 The Surveillance Devices Act prohibits two sorts of activity: the use of listening devices to record, monitor or listen to private conversations or words spoken in a private conversation, and the use of optical surveillance devices to record visually or observe a private activity. The two strands, in my opinion, are intended to act together and be comprehensive. The definition of private activity has no limitation to informal activity. The evident aim of both strands is to protect privacy, whether formal or informal. For example, it would not be open for a business competitor to
(Page 6)
- legally install a concealed listening device to listen in to or record a meeting intended to be private, although formal.
15 The principal exception which I must consider is that in s 5(3)(d). Mr Perrine was a principal party to the conversation, and consented to the use of the recording device. He committed no offence if that use was reasonably necessary for the protection of his lawful interests.
16 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].
17 I assume that there is an identity of interest between Mr Perrine and the defendant - Mr Perrine is a director and was acting on behalf of the defendant at the meetings. There is now, quite clearly, a dispute between Mr Perrine and the defendant, on the one hand, and the plaintiff on the other. There is nothing before me, however, to show that in 2009 that dispute was either present or anticipated. The only evidence, as I have said, is Mr Perrine's statement in his affidavit that it was his usual practice to record meetings. That evidence is not sufficient to demonstrate that, in the circumstances that existed at the time of the use of the recording device, recording the meetings was reasonably necessary for the protection of his interests. Nor does that evidence suffice to show that Mr Perrine reasonably believed that recording the meeting was reasonably necessary for that purpose.
18 Accordingly, on the evidence which has been put before me and on the civil standard applicable in these proceedings, I find that the use of the device was a breach of the Act.
19 The consequences of that breach, for present purposes, depend upon:
(a) whether there is a discretion to exclude evidence obtained by such use; and
(b) how should such a discretion be exercised?
20 Improperly or illegally obtained evidence is admissible. But there is support for the proposition that there is a discretion to exclude evidence obtained illegally, even in a civil trial: Miller v Miller(1978) 141 CLR 269, 277; Pearce v Button (1985) 8 FCR 388, 402; Sheldon v Sun Alliance Ltd (1988) 50 SASR 236, 247; Southern Equities Corp Ltd (in liq) v Bond (No 2) [2001] SASC 70; (2001) 78 SASR 554 [109] - [111]. It is not necessary, for present purposes, to decide whether that discretion is confined to evidence obtained by 'serious and deliberate infringements of the legal rights of another' (see Sheldon v Sun Alliance; The Duke Group Ltd (In liq) v Pilmer (1994) 63 SASR 364, 377 - 378), although the seriousness of the infringement is a matter relevant to the exercise of the discretion.
(Page 8)
21 The discretion will be exercised having regard to the all of the circumstances, including the underlying policies which call for the discretion's existence, the circumstances in which the evidence was obtained, and the potential prejudice to any party if the evidence is admitted or rejected.
22 The first factor for consideration in the present case is the Surveillance Devices Act itself, and whether it imposes any limitation on the use of material obtained in breach of its provisions. Under s 9, a person shall not knowingly publish or communicate a private conversation, or a report or record of a private conversation that came to that person's knowledge as a direct or indirect result of the use of a listening device. That prohibition, however, does not apply where the publication or communication is made in the course of any legal proceedings: s 9(2)(ix).
23 Second, and quite independently of s 9, it would be open to Mr Perrine to give his account of what occurred at the meeting. No illegality taints that knowledge. In the circumstances, the availability of a recording goes to the best evidence that can be put before the court, and not to whether evidence of those facts can be given at all.
24 Third, as it is stated in Cross on Evidence [27270]:
Illegalities by persons who have no role in enforcing the laws have been said not to attract the discretion to exclude.
25 Cross refers to Barker v The Queen (1994) 54 FCR 451, where the Full Court of the Federal Court found that no occasion arose for the exercise of the discretionary power to exclude from evidence a recording that was made by an accomplice, that was later made available to the police, but where the police and prosecution authorities had no hand in making it (478 - 479).
26 Fourth, on the evidence before me, the recording was done in a meeting by a device which was placed on the table. Mr Perrine has referred to it in his affidavit, apparently unaware that he may have been in breach of the Act. While I accept that the other parties to the conversation were not aware and did not consent to it being recorded, the conduct of Mr Perrine was not such an abuse as to require the protection of the processes of the court by excluding evidence of that conversation from admission in these proceedings.
(Page 9)
27 For these reasons I allow the exhibits into evidence and further allow into evidence the affidavit of Kathleen Elizabeth Tyler, sworn 4 July 2011, containing a full transcription of the recordings.
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