Heasman v Makis
[2021] FedCFamC2G 287
•18 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Heasman v Makis [2021] FedCFamC2G 287
File number(s): SYG 184 of 2021 Judgment of: JUDGE CAMERON Date of judgment: 18 October 2021 Catchwords: EVIDENCE – Illegally obtained evidence – whether to admit. Legislation: Surveillance Devices Act 2007 (NSW) s 7
Evidence Act 1995 (Cth), s 138
Cases cited: DW v R [2014] NSWCCA 28
Corby & Corby [2015] FCCA 1099
Kanjian Holdings No 1 Pty Ltd v Kanjian [2021] NSWSC 839
Rathswohl v Court [2020] NSWSC 1490
Kadir v The Queen (2020) 267 CLR 109
Division: General Number of paragraphs: 14 Date of hearing: 18 October 2021 Counsel for the Applicant: Mr J. Baird Solicitor for the Applicant: Craig Milne & Company Counsel for the Respondent: Mr B. May Solicitor for the Respondent: Allsop Glover Lawyers ORDERS
SYG 184 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KEN HEASMAN
Applicant
AND: ANDREA MAKIS
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
18 OCTOBER 2021
THE COURT ORDERS THAT:
1.The affidavit of Johannes Hunt affirmed 22 August 2021 and the affidavit of Danielle Hoare sworn 22 August 2021 be rejected.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
This is a proceeding which was commenced by the presentation of a creditor’s petition seeking a sequestration order against the respondent’s estate. The respondent opposes sequestration on a number of grounds, including that the bankruptcy notice, the non-compliance with which is said to amount to an act of bankruptcy, was not effectively served on her.
The applicant alleges that the bankruptcy notice was served on the respondent by his contracted process server, Frank Hoare, leaving it at what the applicant says was the respondent’s last known address, being premises in Maroubra, on 18 June 2020.
Amongst the evidence on which the applicant seeks to rely in connection with that address being the applicant’s address, are two affidavits of a further process server, Johannes Hunt, affirmed 2 August 2021 and 22 August 2021 respectively. Mr Hunt deposes to a conversation he had with the respondent’s daughter at the Maroubra address on 19 February 2021 which he says he sound recorded, and of which recording he provided a copy to his employer. The respondent’s daughter is said to have confirmed to Mr Hoare that the Maroubra address was the respondent’s place of residence, at least as at 19 February 2021. The applicant also seeks to rely on a further affidavit, this one sworn by Danielle Hoare, who deposes to having transcribed the sound recording of the conversation. She attaches a copy of that transcription to her affidavit.
The respondent objects to the leading of Mr Hunt and Ms Hoare’s evidence on the basis that the sound recording was made contrary to the terms of the Surveillance Devices Act 2007 (NSW) whose s.7 relevantly provides:
7Prohibition on installation, use and maintenance of listening devices
(1)A person must not knowingly install, use or cause to be used or maintain a listening device—
…
(b) to record a private conversation to which the person is a party.
…
(3)Subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if—
…
(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation—
(i)is reasonably necessary for the protection of the lawful interests of that principal party …
The applicant submitted that the recording of the conversation had been reasonably necessary to protect the lawful interests of Mr Hunt, as a principal to the conversation, on the basis that it is important for process servers to be able to protect themselves from allegations that they have not discharged their duties in a proper manner.
One can imagine that on occasions a process server’s job can be difficult and possibly hazardous. However, it has not been demonstrated to me in the short argument on these issues today that sound recordings ought to be taken in the ordinary course of a process server’s business, which it seems is what the attendance at the Maroubra address in February 2021 was. That is to say, there seems to have been no particular reason to take a precaution which in ordinary circumstances would be unlawful.
Where the line is to be drawn for the purposes of s.7(3)(b)(i) of the Surveillance Devices Act is a nice question but I conclude that the facts of this case lie on the side where a recording is not permitted. The circumstances of this case can easily be distinguished from those in the cases to which the applicant took the Court on this issue, namely DW v R [2014] NSWCCA 28 and Corby & Corby [2015] FCCA 1099. The circumstances of this case are more reflected in the comments of Henry J in Kanjian Holdings No 1 Pty Ltd v Kanjian [2021] NSWSC 839 to which the Court was taken by the respondent and where her Honour said at [485]:
While “lawful interest” is capable of a broad construction, the statutory context suggests it is not open ended. The recording of a private conversation “just in case” it might prove advantageous in future civil litigation is not enough. The Court is, however, more likely to find that a recording is made in the protection of a person’s lawful interests where the conversation relates to an allegation of a serious crime or resisting such an allegation, or where a dispute has “crystallised into a real and identifiable concern about the imminent potential for significant harm to the commercial or legal interests of a person”: Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266 at [49]; Thomas v Nash at [45], [48]; Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd (2018) 132 SASR 63; [2018] SASC 116 at [103]–[105].
It is also useful to refer to the discussion in Rathswohl v Court [2020] NSWSC 1490 at [35].
I conclude that the making of the recording was not permitted by the Surveillance Devices Act.
Nonetheless, the evidence may possibly be admitted under s.138 of the Evidence Act 1995 (Cth) which relevantly provides:
138 Discretion to exclude improperly or illegally obtained evidence
(1)Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
…
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Last year in Kadir v The Queen (2020) 267 CLR 109, a case involving the unlawful video-recording, on behalf of a company that investigated cruelty to animals, of the live baiting of greyhounds, the High Court said:
As s 138 is not confined to criminal proceedings or to evidence obtained by, or in consequence of, the misconduct of those engaged in law enforcement, the public interests that the court is required to weigh are broader than those weighed in the exercise of the Bunning v Cross discretion. The desirability of admitting evidence recognises the public interest in all relevant evidence being before the fact-finding tribunal. The undesirability of admitting evidence recognises the public interest in not giving curial approval, or encouragement, to illegally or improperly obtaining evidence generally … (at 125[13]).
Their Honours concluded that the trial judge had been right to find that each video recording was the product of a serious contravention of Australian law. In each case the seriousness of the breach was greater because the recording had been made in deliberate contravention of the law with a view to assembling evidence which, it was believed, the proper authorities would be unable to obtain lawfully. To the extent that it was more difficult to lawfully obtain evidence of live baiting before the first video recording was made, this was a factor which weighed against admitting it.
In considering whether evidence ought to be admitted, the matters set out in s.138(3) of the Evidence Act should be taken into account. Having had regard to those matters in this case, I conclude that the evidence should be excluded, not only because the Court should not give approval or encouragement to the improper acquisition of evidence, but also because the probative value of the evidence in question is not sufficiently great to tip the balance in favour of admitting it. True it is, it would seem, that the respondent’s daughter said in February 2021 that the respondent resided at the Maroubra address, but that was some months after the bankruptcy notice was purportedly served, and although I accept that it might be inferred that the respondent’s residence there was a state which had continued over some time, the evidence is not sufficiently strong that an inference of that sort deserves much weight in the balancing exercise that I have to undertake for the purposes of s.138.
I should also note that one of the issues to be taken into account under s.138(3) is the difficulty, if any, of obtaining the evidence in question without impropriety or contravention of an Australian law. Of course, in this case, the sound recording is merely corroboration of the evidence which Mr Hunt gives in his affidavit of 2 August 2021, in the sense that he says at [3]:
The daughter never told me that the respondent did not live at [the Maroubra address] and in fact said she did live at [the Maroubra address].
That is the relevant evidence, ostensibly lawfully obtained. The real issue is whether Mr Hunt is going to be believed in what he says.
CONCLUSION
For those reasons, I conclude that it is appropriate to reject the affidavit of Mr Hunt affirmed 22 August 2021 and the affidavit of Ms Hoare sworn 22 August 2021.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Dated: 19 November 2021
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