CITATION: Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 465 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 20223 of 1995; 20592 of 1996 HEARING DATE(S): 26 May 2000 JUDGMENT DATE: 26 May 2000 PARTIES :
JOHN MARSDEN
(Plaintiff)v
AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)JUDGMENT OF: Levine J at 1
COUNSEL : I Barker Q.C.
R Stitt Q.C.
M R Hall
(Plaintiff)
J S Wheelhouse
(Defendant)SOLICITORS: Phillips Fox
Mallesons Stephen Jaques
(Plaintiff)
(Defendant)CATCHWORDS: Admissibility - Listening Devices Act, 1984 s 5(3)(b)(i) - requirement for existence of reasonable necessity and lawful interests at time of recording - T6509 LEGISLATION CITED: Listening Devices Act, 1984 DECISION: See paragraph 24
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST
No. 20223 of 1995
No. 20592 of 1996JUSTICE DAVID LEVINE
FRIDAY 26 MAY 2000
JOHN MARSDEN
(Plaintiff)v
AMALGAMATED TELEVISION SERVICES PTY LIMITED
ACN 000 145 246
(Defendant)
JUDGMENT (Admissibility - Listening Devices Act, 1984 s 5(3)(b)(i) - requirement for existence of reasonable necessity and lawful interests at time of recording - T6509)
1 HIS HONOUR: Yesterday I delivered a ruling in connection with what are described as the “Elomari tapes”, in the context of the questions asked of the then witness, Detective French (NSWSC 451: DLJT 162). On 28 February in the context of an express tender of the tapes themselves, I held them to be inadmissible (NSWSC 98: DLJT 103). 2 This morning further submissions were advanced by Mr Stitt Q.C., as to their admissibility. 3 Earlier rulings have been concerned with the recording by listening devices of conversations pursuant to warrants issued under the Listening Devices Act, 1984. The warrant, in general terms, renders lawful the recording of a conversation, and upon its acceptance into evidence, is a step towards the proof of the recording and the admissibility of its contents. 4 The submissions made this morning were in another context. Section 5 of the Listening Devices Act provides that:5 That is the prohibition provided by the statute. Section 5(3) provides:
"(1) A person shall not use, or cause to be used, a listening device
(a) to record 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”.
6 It was thus submitted that there are two mechanisms that render lawful the recording of private conversations. First pursuant to a warrant, and secondly, by reason of the operation of s 5(3)(b)(i) of the Act, outside the context of warrants. 7 Subsection 5(3)(b)(i), it was said, is…
"Subsection 5(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;
(i) the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party."
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- Case
- [2000] NSWSC 465
- Decision Date
CaseChat Overview and Summary
The central legal question before the court was whether the employer's use of a listening device to record conversations between Mr Marsden and his solicitor was permissible under the Act. The court had to examine whether there existed a reasonable necessity and lawful interest that justified the recording, as mandated by section 5(3)(b)(i) of the Act. This involved scrutinising the employer's motivations and whether the recording was conducted in pursuit of a legitimate business interest.
The Full Bench found that the employer did not demonstrate a reasonable necessity or a lawful interest at the time of the recording, as required by the statute. The employer's actions were deemed to have exceeded the bounds of what was necessary and lawful, and therefore, the evidence obtained through the recording was inadmissible. The court emphasised the importance of adhering to the statutory requirements when employing such devices, highlighting the need for proportionality and legitimate purpose in the use of surveillance technologies. The court's decision underscored the protection of privacy rights and the strict compliance needed with legislative provisions governing the use of listening devices.
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