James v James (No. 2)

[2020] NSWDC 796

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

James v James (No. 2) [2020] NSWDC 796

Hearing dates:

12-13, 16 November 2020

Date of orders:

13 November 2020

Decision date:

13 November 2020

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Recording admitted into evidence under s 138(3) of the Evidence Act 1995

Catchwords:

Evidence – Audio recording of the interaction of the plaintiff and the defendant two and a half years previously – Whether it was reasonably necessary for the plaintiff to make the recording for the protection of her lawful interests – Reason identified in evidence was not a “lawful interest” in accordance with the authorities – Evidence was obtained in contravention of an Australian law – In exercise of court’s discretion under Evidence Act 1995 s 138(3), evidence admitted.

Legislation Cited:

Evidence Act 1995

Surveillance Devices Act 2007

Cases Cited:

Corby v Corby [2015] FCCA 1099

DW v R [2014] NSWCCA 28

Category:

Procedural and other rulings

Parties:

Plaintiff – Shannon James
Defendant – Shaun James

Representation:

Plaintiff:
W. Priestley (Counsel)
J. Hill (Randall Lawyers)

Defendant:
In person – unrepresented

File Number(s):

2020/00184759

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: This is an application to tender recordings of the interaction between the plaintiff and the defendant on 20 February 2018 at the then matrimonial home in Clunes. The interaction was recorded by the plaintiff on her mobile phone. It is a recording of a private conversation between the plaintiff and the defendant. The recording was not made with the defendant’s consent. Section 7(1) of the Surveillance Devices Act 2007 provides this:

“A person must not knowingly install, use or cause to be used or maintain a listening device--

(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or

(b) to record a private conversation to which the person is a party.”

2. The plaintiff submits that notwithstanding the general prohibition on the admission of the recorded material the admission is justified pursuant to sub(3) par (b). That provision is this:

“(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.”

3. The plaintiff submits that she consents to the recorded material being tendered and that it is reasonably necessary for the protection of her “lawful interest”. There is learning about the meaning of the words “lawful interest”. Mr Priestley of counsel referred me to the decision of the Federal Circuit Court of Australia in Corby v Corby [2015] FCCA 1099, a decision of Sexton FCCJ. That decision is not binding on me but does collect a number of other decisions. More important is the decision of the Court of Criminal Appeal in DW v R [2014] NSWCCA 28. In essence…