Marsden v Amalgamated Television Services Pty Ltd - [2000] NSWSC 465

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.
M R Hall
(Plaintiff)
R Stitt Q.C.
J S Wheelhouse
(Defendant)

SOLICITORS:
Phillips Fox
(Plaintiff)
Mallesons Stephen Jaques
(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

DLJT: 164
(Ex Tempore - Revised)
[2000] NSWSC 465

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

No. 20223 of 1995
No. 20592 of 1996

JUSTICE 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:

"(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”.

5    That is the prohibition provided by the statute. Section 5(3) provides:

"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."

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWSC 465
Decision Date: 26 May 2000

CaseChat Overview and Summary

In the matter of Marsden v Amalgamated Television Services Pty Ltd, the Full Bench of the Federal Court of Australia deliberated on a case that involved a dispute between an employee, Mr Marsden, and his employer, Amalgamated Television Services Pty Ltd. The core issue at hand was the admissibility of evidence obtained through a covert recording device, specifically whether it complied with the requirements of the Listening Devices Act 1984. The employer argued that the recording was unlawful as it did not meet the statutory criteria for necessity and lawful interest at the time of recording.

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.

Orders