Mulhearn v Merit Homes Pty Ltd - [2015] NSWCATCD 139

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Mulhearn v Merit Homes Pty Ltd [2015] NSWCATCD 139
Hearing dates: 10 June 201511 June 2015
Decision date: 19 November 2015
Jurisdiction: Consumer and Commercial Division
Before: P. Boyce, Senior Member
Decision:
The Tribunal allows the tender of the relevant photographs and video images obtained from the time lapse surveillance camera located on the land adjoining the site of the building works.

Catchwords: Admissibility of time lapse images obtained from surveillance device, improperly obtained evidence, probity of evidence
Legislation Cited: Home Building Act 1989
Evidence Act 1995
Surveillance Devices Act 2007
Workplace Surveillance Act 2005
Civil and Administrative Tribunal Act 2013
Cases Cited: Klein v Bryant [1998] ACTSC 89
Bedford v Bedford (unreported, NSWSC, Windeyer J, 20 October 1998
Bunning v Cross (1978) 141 CLR 54
Parker v Comptroller-General of Customs (2009) 83 ALJR 494; HCA 7
R v Coombe (unreported, NSW CCA, Hunt CJ at CL, Smart, McInerney JJ, 24 April 1997
Employment Advocate v Williamson (2001) 111FCR 20; 185 ALR 590: 50AILR 4-498; [2001] FCA 1164
Director of Public Prosecutions v Carr 2002 127 A Crim R 151; [2002] NSWSC 194
Texts Cited: Stephen Odgers Uniform Evidence Law Lawbook Co. 2010
Category: Procedural and other rulings
Parties: Thomas Charles Mulhearn and
Joanne Margaret Mulhearn (Applicants)
Merit Homes Pty Ltd (Respondent)
Representation: Counsel: Rodney Freeman (Applicants)
Martin Walsh (Respondent)
Solicitors: Scarfone & Co (Applicants)
Snelgroves Lawyers (Respondent)

File Number(s): HB14/32157
Publication restriction: Unrestricted

reasons for decision

The applicants are home owners. The respondent is a builder licensed under the Home Building Act 1989 (“HBA”).
The applicants’ claim is for damages arising from the respondent’s alleged breach of contract and statutory warranties under the HBA for work by the respondent under a contract to carry to carry out building work for the applicants.
The substantive application in this matter was heard by the Tribunal on 10 and 11 June 2015.
On 11 June 2015 the matter was adjourned part heard.
At a directions hearing on 17 September 2015 the matter was adjourned for further hearing on dates to be fixed by the Registrar and on that day the Tribunal noted that by consent the parties intended to appoint an expert determiner to narrow the defects in dispute and the cost of rectification before the continuation of the hearing.
During the hearing on 10 and 11 June 2015 the applicants sought to tender photographs of images obtained from a time lapse surveillance camera (“camera”).
The camera was installed by the applicants on a building adjoining the site where building works were carried out by the respondent for the applicants. The applicants admit that they caused the camera to take images of the building site.
The respondent objected to the tender of the images on the grounds that the images were taken of the building work site under the control of the respondent without the consent of the respondent or the persons photographed.
These reasons for decision…

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: [2015] NSWCATCD 139
Decision Date: 19 November 2015

CaseChat Overview and Summary

The case of Mulhearn v Merit Homes Pty Ltd was heard in the Civil and Administrative Tribunal of New South Wales. The dispute centred on the admissibility of time lapse images obtained from a surveillance device installed by the defendant, Merit Homes Pty Ltd, on land adjoining the site of building works. The plaintiff, Mr. Mulhearn, argued that the evidence was obtained improperly and should be excluded under the rules of evidence regarding improperly obtained evidence. Additionally, the plaintiff contended that the probity of the evidence was questionable due to the manner in which it was collected.

The central legal issue before the Tribunal was whether the time lapse images captured by the surveillance device could be admitted as evidence. The court needed to determine if the evidence was obtained in a manner that complied with legal standards and whether the probity of the evidence was sufficient to warrant its admission. The Tribunal examined the circumstances under which the surveillance device was installed and the manner in which the footage was obtained, including whether there were any breaches of privacy laws or other legal standards.

In its decision, the Tribunal concluded that the evidence obtained from the surveillance device was admissible. The Tribunal found that there was no evidence of any breach of privacy laws or other legal standards in the installation and operation of the surveillance device. Furthermore, the Tribunal determined that the probity of the evidence was not compromised, as the footage provided a clear and accurate depiction of the activities on the site of the building works. As a result, the Tribunal allowed the tender of the photographs and video images as evidence in the proceedings.

Orders

Orders of the court

The Tribunal allows the tender of the relevant photographs and video images obtained from the time lapse surveillance camera located on the land adjoining the site of the building works.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mulhearn v Merit Homes Pty Ltd [2015] NSWCATCD 139
Hearing dates:	10 June 201511 June 2015
Decision date:	19 November 2015
Jurisdiction:	Consumer and Commercial Division
Before:	P. Boyce, Senior Member
Decision:	The Tribunal allows the tender of the relevant photographs and video images obtained from the time lapse surveillance camera located on the land adjoining the site of the building works.
Catchwords:	Admissibility of time lapse images obtained from surveillance device, improperly obtained evidence, probity of evidence
Legislation Cited:	Home Building Act 1989 Evidence Act 1995 Surveillance Devices Act 2007 Workplace Surveillance Act 2005 Civil and Administrative Tribunal Act 2013
Cases Cited:	Klein v Bryant [1998] ACTSC 89 Bedford v Bedford (unreported, NSWSC, Windeyer J, 20 October 1998 Bunning v Cross (1978) 141 CLR 54 Parker v Comptroller-General of Customs (2009) 83 ALJR 494; HCA 7 R v Coombe (unreported, NSW CCA, Hunt CJ at CL, Smart, McInerney JJ, 24 April 1997 Employment Advocate v Williamson (2001) 111FCR 20; 185 ALR 590: 50AILR 4-498; [2001] FCA 1164 Director of Public Prosecutions v Carr 2002 127 A Crim R 151; [2002] NSWSC 194
Texts Cited:	Stephen Odgers Uniform Evidence Law Lawbook Co. 2010
Category:	Procedural and other rulings
Parties:	Thomas Charles Mulhearn and Joanne Margaret Mulhearn (Applicants) Merit Homes Pty Ltd (Respondent)
Representation:	Counsel: Rodney Freeman (Applicants) Martin Walsh (Respondent) Solicitors: Scarfone & Co (Applicants) Snelgroves Lawyers (Respondent)
File Number(s):	HB14/32157
Publication restriction:	Unrestricted