Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd

[2018] SASC 116

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Voir Dire)

NANOSECOND CORPORATION PTY LTD & ANOR v GLEN CARRON PTY LTD & ANOR

[2018] SASC 116

Ruling of The Honourable Justice Doyle

16 August 2018

EVIDENCE - MECHANICAL RECORDS

EVIDENCE - ADMISSIBILITY AND RELEVANCY - HEARSAY

The plaintiffs have brought proceedings against the defendants alleging breach of contract and various other causes of action.

The plaintiffs seek to rely upon covert recordings of 20 telephone conversations and meetings said to be relevant. The defendants object to the proposed use of the recordings on the basis that they were made unlawfully under the listening devices legislation, and were in any event inadmissible.

With the consent of the parties, the trial was commenced for the purpose of conducting a voir dire to determine the lawfulness of the recordings, the permissibility of their use in these proceedings, and their relevance and admissibility.

Held (per Doyle J):

1.       The telephone conversations and meetings were “private conversations” for the purposes of the listening devices legislation.

2.       Some of the recordings were made “for the protection of the lawful interests” of the plaintiffs; others were not and were hence unlawful.

3.       Permission to use the lawful recordings granted; but no entitlement to use the unlawful recordings.

4.       Rulings as to the relevance and admissibility of those recordings in respect of which permission to use has been granted.

Australian Consumer Law s 18(1); Listening and Surveillance Devices Act 1972 (SA) ss 3, 4, 5, 7; Surveillance Devices Act 2016 (SA) ss 3, 4, 9, 10, 11, 12; Acts Interpretation Act 1915 (SA) s 16(1), referred to.
Thomas v Nash (2010) 107 SASR 309; Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266; RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 2) [2018] FCA 404; Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72; Violi v Berrivale Orchards Limited (2000) 99 FCR 580; Chao v Chao [2008] NSWSC 584; Metz Holdings Pty Ltd v Simmac Pty Ltd (No 1) (2011) 193 FCR 195; Levy v Bablis [2013] NSWCA 28; DW v R [2014] NSWCCA 28; Dimech v State of Tasmania [2016] TASCCA 3; Dong v Song [2018] ACTSC 82; Groom v Police [2015] SASC 101; Bunning v Cross (1978) 141 CLR 54, considered.

NANOSECOND CORPORATION PTY LTD & ANOR v GLEN CARRON PTY LTD & ANOR
[2018] SASC 116

Civil.

1. DOYLE J:             The second plaintiff (Mr Wentworth) is an experienced driver of heavy duty vehicles.  At the time of the events that are the subject of these proceedings, he was providing haulage services through the first plaintiff (Nanosecond Corporation Pty Ltd), a company of which he is the sole director and shareholder.

2. The first defendant (Glen Carron Pty Ltd) and second defendant (Garden Grove Haulage Pty Ltd) are both companies carrying on business as providers of bulk transport and haulage services in the South Australian grain market.

3. During the period from February 2015 to April 2017 the defendants used the plaintiffs to provide haulage services to meet their customers’ needs.  However, the defendants withdrew this work from the plaintiffs in April 2017.  The reasons for withdrawing this work from the plaintiffs appear to have been various allegations about Mr Wentworth that reflected poorly upon his competence and skills as a driver.

4. In these proceedings, the plaintiffs allege that in withdrawing work from them the defendants each acted in breach of their contractual arrangements with the plaintiffs.  The plaintiffs also allege that the defendants engaged in other misconduct involving injurious falsehood, defamation and misleading and deceptive conduct.  The plaintiffs seek damages for the losses they claim to have suffered as a result of the defendants’ misconduct.

5. In support of their claim, the plaintiffs seek to rely upon recordings of a number of conversations that Mr Wentworth participated in, and which he says are relevant to the plaintiffs’ claims.  There are 20 conversations in total.  Some were by telephone, and some were face-to-face meetings.  Some were with officers or employees of the defendants, and some were with people unconnected with either defendant.  All were covertly recorded by Mr Wentworth using one of his mobile telephones as a recording device.

6. The defendants oppose the plaintiffs’ use of these recordings in these proceedings.  They do so on the basis that the recordings were made unlawfully, and that this prevents their use in the proceedings.  They also contest their admissibility on the basis that they are hearsay.

7. Given the significance of the recordings to the plaintiffs’ case, I agreed to address the issues raised by the plaintiffs’ proposed use of the recordings ahead of the two week period that has been set aside for the trial.  I did so by commencing the trial for the limited purpose of holding a voir dire to address these issues.  I did so with the consent of all parties.

   Background

8. The plaintiffs have not had the benefit of legal representation in these proceedings.  They have been represented by Mr Wentworth.  While an intelligent and articulate man, he has struggled to plead the plaintiffs’ claims in a legally coherent manner.  Early on in the proceedings, the defendants took objection to various aspects of Mr Wentworth’s attempts to plead the plaintiffs’ case.  But by the time of the third statement of claim the defendants (with some encouragement from me) took the approach of allowing the matter to progress to trial despite the discursive nature of the plaintiffs’ pleaded case.  The following is my attempt to distill the plaintiffs’ case from their third statement of claim.

9. Mr Wentworth is a 69 year old man.  While currently unemployed, he has significant experience as a professional driver of heavy duty vehicles. 

10. The plaintiffs claim that the defendants together hold a majority share of the market for bulk transport and haulage services for grain in South Australia, and that as a consequence they require the services of contractors such as Nanosecond to enable them to meet the needs of the grain storage and export companies who are their customers.  The customers of the defendants include Grain Flow (owned by Cargill Australia) and Viterra (owned by Glencore Australia).

11. Focussing on the period relevant to these proceedings, Mr Wentworth’s relevant dealings with Glen Carron were primarily with Michael (‘Mick’) Harrold, who was the logistics manager of that company.  He also dealt with Doug Harrold and Pat Harrold.

12. Mr Wentworth’s relevant dealings with Garden Grove were primarily with Paul Page (the transport manager) and Andrew (‘Andy’) Gray (the transport coordinator).  

13. From March 2001 until January 2015, Mr Wentworth was employed through a business operated by Bill Fischer.  In that capacity he regularly provided haulage services for the defendants. 

14. In February 2015, Mr Wentworth, on behalf of Nanosecond, contacted the defendants and informed them that he had acquired his own truck and semi-trailer, and that he would in the future be operating independently from Bill Fischer.  He spoke separately with Pat Harrold on behalf of Glen Carron, and Paul Page on behalf of Garden Grove.  On the plaintiffs’ case, each offered to provide the plaintiffs with work on an ongoing basis.

15. The plaintiffs thereafter, and until April 2017, regularly provided haulage services for the defendants.  The plaintiffs’ case is that they provided those services without any issues or complaints about the quality of their work.  The plaintiffs’ case is also that they provided their services under a contract with each of the defendants that required the defendants to provide work to Nanosecond, and to do so for as long as the defendants continued to carry on business in the South Australian market for grain transport and haulage services. 

    Breaches of contract by Glen Carron and Garden Grove

16. The plaintiffs’ case is that on 26 April 2017, Paul Page of Garden Grove advised Mr Wentworth by telephone that Garden Grove was permanently withholding the supply of work to Nanosecond and Mr Wentworth.  Then, on 27 April 2017, Mick Harrold of Glen Carron advised Mr Wentworth by telephone that Glen Carron was also permanently withholding the supply of work to Nanosecond and Mr Wentworth.  The plaintiffs contend that both decisions to cease providing them with work were arbitrary and without any justifiable reason, and in breach of the defendants’ respective contracts with the plaintiffs.

17. The plaintiffs plead that by reason of the defendants’ breaches of contract in withholding or withdrawing work from them, they have been excluded from the relevant market and have suffered loss and damage to be measured by reference to the profits they would otherwise have made over the ensuing 15 year period.  As against Glen Carron, the plaintiffs seek lost net profits of slightly in excess of $8.5 million, plus consequential loss and damage referrable to the destruction of the plaintiffs’ credit history of almost $1 million.  As against Garden Grove, the plaintiffs seek lost net profits of slightly less than $2.5 million.

    The allegations about Mr Wentworth’s conduct

18. The plaintiffs go on to plead that various allegations about Mr Wentworth’s conduct – which they contend are all false – were the reason or pretext for the defendants’ decisions to cease providing them with work.

19. In relation to these allegations about Mr Wentworth’s conduct, the plaintiffs plead that at some time prior to 17 March 2017, Mick Harrold of Glen Carron reported to Mr Wentworth that Andy Gray of Garden Grove had informed him that Garden Grove was going to stop giving the plaintiffs work as a result of various allegations about Mr Wentworth.

20. As a result of this report, Mr Wentworth telephoned Andy Gray about the allegations on 17 March 2017.  The allegations made by Andy Gray, and to some extent repeated during this converstion, were to the effect that Mr Wentworth (i) had been banned from unloading at Berth 29 at Grain Flow’s site at Port Adelaide; (ii) had been banned from collecting loads from Grain Flow’s site at Crystal Brook; (iii) had taken out a stobie pole at Crystal Brook; (iv) had been the subject of complaints from Grain Flow at Mallala; and had been the subject of complaints from drivers to the effect (v) that he took up to an hour to load a truck, and (vi) that he had tried to run them off the road, requiring them to take evasive action.

21. The plaintiffs plead that on 21 March 2017, Mr Wentworth telephoned Paul Page from Garden Grove, and that during this conversation Paul Page also made allegations to the effect of (i) and (ii) above.

22. The plaintiffs plead that on 23 March 2017, Mr Wentworth met with Greg Arbon, who was the night supervisor for Patrick Ports & Stevedoring at Berth 29, Port Adelaide.  During the course of this meeting, Greg Arbon telephoned ‘Justin’ from Garden Grove who (after in turn speaking with Paul Page) repeated allegations (i) and (vi), as well as making a further allegation that Mr Wentworth (vii) had been driving for periods of up to 24 hours straight (which was illegal under heavy vehicle regulations).

23. The plaintiffs further plead that on 26 April 2017, some (unspecified) person from Garden Grove not only repeated allegations (i) and (ii) to Mick Harrold from Glen Carron, but also alleged that Mr Wentworth (viii) had been banned from all Grain Flow sites in Australia for working 24 hours straight and (ix) had been banned from doing any further work for Garden Grove.

24. The plaintiffs plead that all of these allegations are false, and in particular that Grain Flow had never made any determination to ban the plaintiffs from either its Port Adelaide or Crystal Brook sites.  The plaintiffs plead that the falsity of these latter two allegations has been confirmed by Greg Arbon (the night supervisor from Berth 29, Port Adelaide) and ‘Dave’ (the manager from Crystal Brook). 

    Injurious falsehood and defamation by Garden Grove

25. Based on these allegations, the plaintiffs seek damages for injurious falsehood from Garden Grove in the sum of $10 million.  They also plead that the allegations by Andy Gray to Mick Harrold gave rise to imputations that Mr Wentworth “is both reckless in his driving and was engaging in criminal behaviour”; that he has suffered damage to his personal and professional reputation; and that he is entitled to damages for defamation from Garden Grove in the sum of $250,000 plus almost $1 million for consequential loss and damage resulting from the destruction of the plaintiffs’ credit history and creditworthiness.

    Conspiracy by unlawful means

26. The plaintiffs plead that the conduct involved in making the above allegations involved a conspiracy by unlawful means by Paul Page and Andy Gray of Garden Grove, and Mick Harrold of Glen Carron, “to falsely accuse [Mr Wentworth] of a variety of acts and conduct which at no time had any truth or basis in fact and were maliciously contrived by [these men] for the purpose of withholding supply to [the plaintiffs]”.  The conspiracy was intentional, motivated by malice and designed to cause financial harm to the plaintiffs.

27. The focus of the allegation of conspiracy is the defendants’ conduct from 17 March 2017 – and in particular the conduct of each of participants in the conspiracy in making (or in the case of Mick Harrold, repeating) the allegations when they knew they were false.  However, the discursive pleadings in support of the alleged conspiracy also include reference to matters dating back to 2016, including various unspecified false and fabricated statements said to have been actuated by malice and made for the purpose of causing financial harm, and withholding the supply of work, to the plaintiffs.

28. The plaintiffs seek damages of $8 million from Glen Carron and $10 million from Garden Grove on account of the loss and damage suffered by them on account of the conspiracy, which amounts are said to exclude the consequential loss and damage to the plaintiffs resulting from the withdrawal of the supply of work to them. 

    Misleading conduct by Glen Carron and Garden Grove

29. The plaintiffs’ allegations that the defendants engaged in misleading and deceptive conduct contrary to s 18(1) of the Australian Consumer Law are difficult to understand.  The plaintiffs plead that in March 2016, Mr Wentworth requested (and, by inference, received) from each of the defendants a letter to support the plaintiffs’ application for finance for a replacement truck to be purchased by Nanosecond.  Those letters were in response to a request from the prospective financier to confirm that Nanosecond had contracts providing for an ongoing income stream for the five year term of the prospective loan.

30. The plaintiffs then refer to the conduct of the defendants, through Paul Page and Andy Gray of Garden Grove, and Mick Harrold of Glen Carron, said to constitute the conspiracy by unlawful means.  They plead that this conduct was “entirely inconsistent and at odds with and contrary to the spirit” of the letters of support provided by the defendants, with the result that they engaged in misleading and deceptive conduct.  The plaintiffs seek from each of the defendants $4 million in damages, plus a further $2.5 million by way of aggravated damages.

    Glen Carron’s defence

31. The defendants have both filed defences in which they deny any liability to the plaintiffs.

32. In its defence, Glen Carron admits various formal matters, including that the plaintiffs provided haulage services for it.  However, it pleads that this occurred in a context where it used the services of a number of persons and entities to carry out that work, and where the plaintiffs also provided haulage services to other companies.  Glen Carron pleads that, from time to time, and upon being notified of Nanosecond’s availability, it engaged Nanosecond on a subcontracting basis to provide haulage services.  It pleads that it did so on the basis of contracts from time to time to transport particular goods from one specified location to another.  It denies that it ever agreed to any guarantee to provide work to the plaintiffs on an ongoing basis.

33. By reason of the above, Glen Carron pleads that it was entitled to cease providing work to Nanosecond even if there were no problems or complaints about the services it provided.  However, it also pleads that it had received numerous complaints and negative comments about Mr Wentworth in his role as driver for Nanosecond.  Glen Carron then pleads seven examples by way of particulars of these complaints and negative comments.  These examples included Mick Harrold being informed by Andy Gray from Garden Grove that Mr Wentworth had been driving erratically; that he had tried to run some of their trucks off the road (allegation (vi)); that there had been an issue with him at Berth 29 and that he “was banned from picking up grain at the site in Crystal Brook and/or delivering the grain at Berth 29” (allegations (i) and (ii)).  They also included allegations from Kylie Lord (via email to Andy Gray) that Mr Wentworth had a lifetime ban from all Grain Flow sites (allegation (x)); and allegations from other persons to the effect, inter alia, that Mr Wentworth had been slow, or had otherwise had difficulty, in positioning or unloading his truck (allegation (v)). 

34. Glen Carron’s defence then pleads various other deficiencies in the haulage services provided by the plaintiffs. 

35. Glen Carron pleads that by reason of the above matters it was not only not able to continue to engage the plaintiffs to transport grain to Berth 29, but also decided to no longer engage them to provide transport services.

36. Glen Carron otherwise denies the causes of actions alleged against it, and any entitlement of the plaintiffs to the damages claimed.

    Garden Grove’s defence

37. In its defence, Garden Grove admits that the plaintiffs provided haulage services during the period from March 2015 to April 2017, but pleads that they did so through Nanosecond and as a contractor of Glen Carron.  Garden Grove denies that it had any contract or agreement with the plaintiffs, or that it made any offer of ongoing work to the plaintiffs.

38. Garden Grove pleads that it had its own fleet of approximately 90 haulage vehicles, and employed its own drivers to operate its fleet.  If and when it required additional vehicles and drivers it engaged contractors on a job-by-job basis.  In this respect it had both regular contractors and occasional contractors.  Glen Carron was one of its regular contractors; the plaintiffs were occasional contractors.  It was in this context that, on various dates between March 2015 and April 2017, it engaged Glen Carron to perform haulage services for it on a job-by-job basis; and that Glen Carron then engaged the plaintiffs to undertake some of these jobs.  Hence, when doing work “for” Garden Grove, the plaintiffs were doing so as subcontractors of Glen Carron.

39. Garden Grove admits that on 26 or 27 April 2017, Paul Page advised Mr Wentworth that he was “banned” from undertaking further work with Garden Grove with respect to “the boats”, being grain haulage for ship loading.  It pleads that this ban was a consequence of information received by Garden Grove in relation to deficiencies in the plaintiffs’ performance in undertaking jobs for Glen Carron.

    The telephone conversations and meetings

40. The 20 recordings of telephone conversations and meetings upon which the plaintiffs seek to rely may be identified and summarised as follows:

Date	Telephone    or meeting	Other party	Summary of conversation
1	27/5/2016	Telephone	Doug Harrold  (Glen Carron)	Mr Wentworth and Doug Harrold discussed whether Mr Wentworth was meant to be picking up a load out of Ardrossan that day. Doug Harrold said that he and others (including Mick Harrold) understood that he was meant to do so. Mr Wentworth strongly refuted this, and in particular denied that Mick Harrold had asked him to do the job. There was also discussion about a sawdust job with Mick Harold suggesting that Mr Wentworth had told Pat Harrold about that job and/or had arranged it with him – which Mr Wentworth denied.
2	18/8/2016	Telephone	Mick Harrold  (Glen Carron)	Mr Wentworth asked Mick Harrold why he had abused him a few minutes earlier, when Mr Wentworth had been on a weighbridge and had telephoned with a query about the order number (which he claimed not to have been given by Glen Carron). Mick Harrold proceeded to further abuse Mr Wentworth.
3	27/10/2016	Telephone	Mick Harrold (Glen Carron)	Mr Wentworth complained to Mick Harrold about having (another) job taken away from him after he had already driven a significant distance. Mick Harrold said that the job had “fallen through” and that he had “got it covered”.
4	17/3/2017	Telephone	Andy Gray (Garden Grove)	Mr Wentworth told Andy Gray that he had just spoken to Glen Carron and that they said they had been told by him that Mr Wentworth wasn’t doing any more Garden Grove work. Andy Gray proceeded to inform Mr Wentworth of some of the allegations about Mr Wentworth he had heard (including allegations (iv), (v), and (vi)). Mr Wentworth said they were nonsense. Andy Gray said “I’m just going on all the reports I’m getting in mate”.
5	17/3/2017	Telephone	David     (Manager,     Grain Flow, Crystal Brook)	Mr Wentworth asked David whether he knew anything about Mr Wentworth having taken out a stobie pole (allegation (iii)), and Dave said he did not. David also spoke to Bianca and reported that she did not know anything about a stobie pole being taken out.
6	21/3/2017	Telephone	Paul Page  (Garden Grove)	Mr Wentworth sought confirmation of his job at Berth 29 for that night.  Paul Page said “I don’t reckon you’re on that … I don’t reckon they want you on that one there”, and later “I think you’ve been banned from site on that one there.” Mr Wentworth told Paul Page that he had spoken to the manager there who had no issue with him.
7	23/3/2017	Telephone	Paul Page  (Garden Grove)	Mr Wentworth told Paul Page that he had been promised some work at Berth 29 and Crystal Brook, and Paul Page said that he understood that but could not put him on there at the moment.  Mr Wentworth challenged the basis for the suggested banning of him from those sites and Paul Page said he could not help Mr Wentworth, offering him some alternative work at Roseworthy. Towards the end of the extract, Mr Wentworth told Paul Page that he was “not going to take [this] lying down”.
8	23/3/2017	Meeting	Greg Arbon (Supervisor,  Berth 29)	Mr Wentworth told Greg that Garden Grove had said he was banned from coming to Berth 29.  Greg said that as far as he knew, Mr Wentworth had “done nothing wrong here”. He did not know the reason, and there wasn’t much he could do other than ask.  While Mr Wentworth was present, Greg then rang his cousin Justin from Garden Grove, who after apparently in turn speaking with Paul Page, made reference to allegations (i), (vi) and (vii) and said that Mr Wentworth could call Paul Page the next day.
9	27/4/2017	Telephone	Doug Harrold (Glen Carron)	Mr Wentworth spoke to Doug Harrold after being told by Mick Harrold that he was getting no more work. After Doug Harrold initially suggested things were a bit quiet on the work front, Mr Wentworth confronted Doug Harrold with what he had been told by Mick Harrold about complaints and being banned from Crystal Brook; that it was nonsense; that he couldn’t have this situation, and it would end up in the Supreme Court. There was no substantive response from Doug Harrold.
10	27/4/2017	Telephone	Doug Harrold (Glen Carron)	Mr Wentworth raised that he had been told by Mick Harrold that he was not going to be given any more work by Glen Carron. When Mr Wentworth challenged the basis for this, Doug Harrold suggested that he speak to Garden Grove because they were just going on what they had been told by Garden Grove about customer complaints and being banned from site.
11	27/4/2017	Telephone	Paul Page  (Garden Grove)	Paul Page told Mr Wentworth that at this stage he was banned. When Mr Wentworth told him that the supervisor at Berth 29 had said they were not banning him, Paul Page responded that Garden Grove was banning him; that there had been a few incidents and feedback and it had all built up.  When Mr Wentworth continued to deny any basis for banning him, and warned Paul Page to be very careful about their stance because he could not have this situation for no good reason, Paul Page repeated that at this stage he was banned.
12	27/4/2017	Meeting	Greg Arbon (Supervisor,  Berth 29)	Mr Wentworth informed Greg he had been banned by Garden Grove from all work. Greg told Mr Wentworth that he had heard that Mr Wentworth had done something at Crystal Brook, that he knew “the lot of it”. He made reference to the allegation that Mr Wentworth had side-swiped trucks off the road and had been banned from all Cargill sites.  While this meant that Mr Wentworth was banned from Berth 29, Greg repeated his earlier statement that he did not have any issues with Mr Wentworth.
13	2/6/2017	Meeting	David    (Manager,     Grain Flow, Crystal Brook)	Upon being asked by Mr Wentworth whether he had had any issues with Mr Wentworth’s work, Dave said “not up here”, and Bianca said that she also didn’t have an issue with him up here.
14	5/6/2017	Telephone	Bianca     (Office Manager, Grain Flow, Crystal Brook)	Mr Wentworth asked Bianca whether he could “proceed with full confidence that I don’t have any problems whatsoever up there with you”, and she said that it was correct that “we don’t have any issue here”.
15	5/6/2017	Telephone	David    (Manager,     Grain Flow, Crystal Brook)	Mr Wentworth asked David how he got on when he rang Garden Grove. David said that Paul (Page) said that Mr Wentworth was not banned from Crystal Brook, but that he was banned from Garden Grove at Port Adelaide.
16	16/6/2017	Meeting	Doug Harrold (Glen Carron)	Mr Wentworth spoke to Doug Harrold about the work that had been taken away from him saying that between Doug and Mick Harrold “the total business has been fucked up”. He said that this was their last chance because he had done “all the preliminary work to prepare writs in the Supreme Court”; that it was fine if they wanted to go down that road because he had more than enough evidence to show collusion and conspiracy between Glen Carron and Garden Grove. Doug Harrold said little in response other than saying he could not help Mr Wentworth. Doug Harrold did say that they knew that Mr Wentworth had told Pat Harrold about a sawdust job, and that Mr Wentworth was lying when he denied this.
17	16/6/2017	Telephone	Pat Harrold (Harrold Services)	Mr Wentworth spoke to Pat Harrold about the sawdust job. When Mr Wentworth told him that Doug Harrold had accused him of lying about this job, Pat Harrold agreed with Mr Wentworth’s version, saying that he had already been doing that work and so he already knew about it. Pat Harrold proceeded to abuse Doug and Mick Harrold, variously describing them as “bullies” and “spoilt rich kids”.
18	28/2/2018	Meeting	Liz          (Grain Flow, Mallala)	Mr Wentworth said to Liz that he had come to see her because she had been there pretty well every time he had come there to pick up loads and he wanted her to think very carefully about whether there had at any time been any complaints made about him and his work at the site. After it was suggested to her that she had not heard anything like that, she agreed and said she couldn’t recall any complaints coming through.
19	28/2/2018	Telephone	David     (Manager,     Grain Flow, Crystal Brook)	David told Mr Wentworth that they had never banned him from this site.
20	2/3/2018	Meeting	Leanne O’Leary & Mark Franke (Ridleys)	Mr Wentworth asked to be directed to Leanne O’Leary and he then asked her about an allegation that had been attributed to her that a driver had come in and taken something like an hour to be able to get his truck into position. He said that this had been included in Glen Carron’s defence filed in court.  They were interrupted by Mark who said that a phone call meant it was simply word against word and that it meant nothing in the absence of a written complaint. Mark said that they didn’t have anything. When Mr Wentworth asked Leanne whether she remembered having phoned up Glen Carron to make this allegation she said “no”.

1. For the purposes of determining the issues arising in relation to the above recordings I received into evidence on the voir dire the passages from various affidavits filed in these proceedings by Mr Wentworth in which he identified the occasion of the various telephone conversations and meetings, and set out a transcription of the relevant part each conversation or meeting.[1]  The summary of each conversation included in the above table was prepared by me by reference to the transcripts of the conversations and meetings. 

   [1]    Being passages from Mr Wentworth’s affidavits dated 31 January, 9 March, 12 June and 27 June 2018, as identified in the table which is exhibit ZJM 1 to an affidavit of Ms Dempster.

2. I also received a disc containing the recordings of each of these conversations and meetings.  Mr Wentworth submitted, indeed virtually insisted, that I listen to the recordings so that the tone, content and context of each conversation or meeting would be apparent.  As the defendants did not object to me listening to them, I have ultimately done so. That said, I observe that listening to the recordings has not materially assisted my understanding of the issues presently relevant. 

   Mr Wentworth’s evidence

3. As the passages from Mr Wentworth’s affidavits that I received on the voir dire did not address some of the matters relevant to the operation of the legislation in relation to listening devices, I gave Mr Wentworth the opportunity to give oral evidence in relation to these matters.  He was briefly cross-examined by counsel for each of the defendants. 

4. As to the means by which he recorded the conversations, Mr Wentworth’s evidence was that he recorded each of the telephone conversations or meetings using one of his mobile phones as a recording device.  In relation to the telephone conversations, he said that in each case he was speaking on his Samsung mobile phone and that he made the recording by turning on the loud speaker function on that phone, and then using another phone (which he thought was a Sony mobile phone) to record what was being said.  In the case of the face-to-face meetings, he again used his mobile phone to record them, although he thought he might have used his Samsung phone to make some or all of these recordings.  Mr Wentworth said that in each case he then transferred the recordings from his phone to a computer and then deleted them from his phone.

5. During cross-examination some confusion emerged as to precisely which phone Mr Wentworth used to make the recordings of the telephone conversations.  However, as there is not presently any application to invoke the provisions of the Commonwealth legislation,[2] there is no need to resolve this confusion.  There is no dispute on the evidence that regardless of precisely how they were recorded, the recordings involved the use of a listening device under the State legislation.

   [2]    There is authority to the effect that recording of telephone conversations through an external device falls outside the operation of the Telecommunications (Interception and Access) Act 1979 (Cth): R v Giacchio & Edginton (1997) 68 SASR 484.

6. Turning to the circumstances of the recording, there was no suggestion that Mr Wentworth sought or obtained the consent of the other participants to record any of the conversations or meetings.  Indeed, Mr Wentworth accepts that he did not say anything to the other participants to inform them, or otherwise do anything to make them aware, that he was recording the conversations.  While he speculated that when dealing with commercial matters people might think a conversation was being recorded, he accepted that he had no particular reason to think that the participants to these conversations were aware that they were being recorded. 

7. To the best of Mr Wentworth’s knowledge, no-one else was present during the course of the telephone conversations.  However, in the case of the meetings, he said that for some of them there were other people in the vicinity.  His evidence in this respect was as follows:

   ·In the case of the 23 March 2017 and 27 April 2017 meetings with Greg (recordings #8 and #12), no-one else was present for the relevant conversations. 

   ·In the case of the 2 June 2017 meeting with David (recording #13), they spoke as they were walking from the carpark to an office where they sat down and were joined by Bianca for the conversation that followed. 

   ·In the case of the 16 June 2017 meeting with Doug Harrold (recording #16), it was conducted in the open courtyard of Transport Connections at Wingfield. There was a lot of traffic around, and so voices were raised.  There were other staff and people present who would have been able to overhear the conversation if they sought to. 

   ·In the case of the 28 February 2018 meeting with Liz (recording #18), Mr Wentworth did not suggest anyone else was present.

   ·In the case of the 2 March 2018 meeting with Leanne and Mark of Ridleys (recording #20), this meeting occurred in their office and while Leanne and Mark were the only people engaged in the conversation with Mr Wentworth, there were other office staff who were in the room at the same time.

8. Mr Wentworth also gave some evidence as to why he recorded the various conversations.  While some of his evidence in this respect was directed to particular conversations or meetings, his evidence tended to be more general.  Mr Wentworth also struggled to distinguish between why he had the various conversations (and what he thought they established), as opposed to why he recorded them.  That said, I acknowledge that there is some overlap between these matters.

9. In relation to the recording #1 (the 27 May 2016 telephone conversation with Doug Harrold), Mr Wentworth explained that the background to this conversation was that he had been “getting the run around” from Glen Carron with jobs being cancelled on him at the last minute, or after he had already commenced driving.  He said:

   Again, with all of what was happening it starts to become apparent that I needed to record all the conversations just to keep a record of who said what because the last thing that I would ever have wanted to get involved with was any form of legal action.  If I’ve got a record of who said what in a particular phone conversation or even a private, personal, face-to-face conversation, then if it came to having another meeting with that person with a view to having them reassess their determination and whatever stance they’ve taken, then I would naturally enough hold that recording in reserve so that in a week’s time or a month’s time if I had another converstion with that person and he said something different to what he said a month ago then at least I would have the record of that converstion that I could refer back to both for my own sake and for his sake.

10. In relation to recording #2 (the 18 August 2016 telephone conversation with Mick Harrold), Mr Wentworth said that he made the telephone call because Mick Harrold had abused him a few moments earlier and he wanted to find out why.  As for why he recorded the conversation, he said:

    I wanted to keep a record of it so that nobody, at any time, could make any suggestion that there was no abuse.  And when I asked him why he abused me I wanted there to be a record of that kept as to why he was abusing me in the way he was.

11. Speaking more generally in relation to his recording of conversations relating to the allegations about him, Mr Wentworth said:

    When this particular person was taking this line and you know, withdrawing supply to me, then I felt that it was only right and proper and this happened at the same time that we’d had these allegations involving the running of trucks of the road and all that stuff.  It was only right and proper that I recorded exactly what these people were saying so that if we needed to come back to it at some later stage, no-one would be under any misunderstanding of who said what and what my view would have been in terms of the effect that it may have of those actions on my lawful interest and that’s why I recorded it.

12. When later asked whether he wished to add anything to his evidence about the circumstances of his recordings, Mr Wentworth said:

    Only that they were commercial matters and only by virtue of the fact that I was put on notice by determinations that were being made by these relevant parties and as a result of those determinations or accusations or judgments that had been conveyed to me then it was entirely appropriate, and without doubt in my mind, that I needed to keep a record of these matters.

13. During cross-examination by counsel for Glen Carron, Mr Wentworth denied that his purpose for recording the conversations was to have an accurate record of them.  He said it was so that “anyone who had an interest in what was being said was able to refer back at some later stage as to who said what.”

14. He also denied that he was gathering evidence for trial.  When it was put to him that some of the recordings were made after proceedings had been issued (indeed after the January 2018 application in relation to the admissibility of his recordings prior to that), Mr Wentworth said:

    No, not that I can remember.  There were some 2018 recordings with people like Leanne at Murray Bridge which was made necessary by accusations that were made in the defence of the first defendant.  So as a result of that accusation, which was supposed to be an instance where they had received a complaint about my performance or my conduct, I felt that I should go and see those people and have a discussion about whether or not there was any veracity to it.

15. Mr Wentworth did not accept that it would have been practical for him to take notes of the conversations.  He said there was not time to do so or at least to do so accurately, and that if driving at the time there might not be a pen and paper to take notes.  He accepted that he did not ask any of the people he recorded available to provide him with a written statement about the relevant matters.

    The listening devices legislation

16. Prior to 8 December 2017, the use of listening devices in South Australia was governed by the Listening and Surveillance Devices Act 1972 (SA). However, with effect from 18 December 2017, this legislation was repealed and replaced by the Surveillance Devices Act 2016 (SA). I shall refer to these Acts as “the old Act” and “the new Act” respectively.

17. Consideration of the recordings sought to be used in this case is complicated by the fact that while most were made while the old Act was in force, some were made after the new Act had come into force.  Further, even in respect of those recordings made while the old Act was in force, it would seem that the permissibility of the use now sought to be made of them is governed by the new Act.  Certainly the parties were content to deal with matter on this basis.  It is thus necessary to consider the operation of both Acts.

    The Listening and Surveillance Devices Act 1972 (SA)

18. Under the old Act, the use of listening devices was proscribed by s 4:

    4—Regulation of use of listening devices

    Except as provided by this Act, a person must not intentionally use any listening device to overhear, record, monitor or listen to any private conversation, whether or not the person is a party to the conversation, without the consent, express or implied, of the parties to that conversation.

    Maximum penalty: $10 000 or imprisonment for 2 years.

19. ‘Private conversation’ was defined in s 3 of the old Act as follows:

    private conversation means any conversation carried on in circumstances that may reasonably be taken to indicate that any party to the conversation desires it to be confined to the parties to the conversation.

20. The operation of the s 4 proscription against the use of listening devices was qualified by s 7(1), which excluded from the s 4 proscription – and hence permitted – the use of listening devices in a situation where the person using the device was a party to the conversation and made that recording either in the course of duty, in the public interest or for the protection of the lawful interests of that person.  The use of recordings made in conformity with the s 7(1) exception was then governed by s 7(2).  Section 7 relevantly provided:

    7—Lawful use of listening device by party to private conversation

    (1)Section 4 does not apply to or in relation to the use of a listening device by a person (including a person to whom a warrant is issued under this Act) if that listening device is used—

    (a)     to overhear, record, monitor or listen to any private conversation to which that person is a party; and

    (b)     in the course of duty of that person, in the public interest or for the protection of the lawful interests of that person.

    …

    (3)A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a listening device under this section except—

    (a)     to a person who was a party to the conversation to which the information or material relates; or

    (b)     with the consent of each party to the conversation to which the information or material relates; or

    (c)     in the course of duty or in the public interest, including, in the case of information or material derived from the use of a listening device in the course of an investigation by an investigating agency, for the purposes of a relevant investigation or a relevant proceeding; or

    (d)     being a party to the conversation to which the information or material relates, as reasonably required for the protection of the person's lawful interests; or

    (e)     if the information or material has been taken or received in public as evidence in a relevant proceeding.

    Maximum penalty: $10 000 or imprisonment for 2 years.

21. In the case of recordings made in contravention of s 4 of the old Act, s 5(1) provided that the information or material derived from the recording must not be used except in certain circumstances.  Section 5 provided:

    5—Prohibition on communication or publication

    (1)A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a listening device in contravention of section 4.

    Maximum penalty: $10 000 or imprisonment for 2 years.

    (2)This section does not prevent the communication or publication of information or material derived from the use of a listening device in contravention of section 4—

    (a)     to a person who was a party to the conversation to which the information or material relates; or

    (b)     with the consent of each party to the conversation to which the information or material relates; or

    (c)     for the purposes of a relevant investigation or a relevant proceeding relating to that contravention of section 4 or a contravention of this section involving the communication or publication of that information or material.

    The Surveillance Devices Act 2016 (SA)

22. Division 1 of Part 2 of the new Act regulates the installation, use and maintenance of listening devices.  The operative provision under the new Act remains s 4, although the equivalent of s 7 under the old Act is now contained within s 4 of the new Act.  That section relevantly provides:

    4—Listening devices

    (1)Subject to this section and section 6, 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.

    Maximum penalty:

    (a)     in the case of a body corporate—$75 000;

    (b)     in the case of a natural person—$15 000 or imprisonment for 3 years.

    (2)     Subsection (1) does not apply—

    (a)     to the use of a listening device by a party to a private conversation to record the conversation if—

    (i)all principal parties to the conversation consent, expressly or impliedly, to the device being so used; or

    (ii)the use of the device is reasonably necessary for the protection of the lawful interests of that person; or

    …

23. The section goes on to identify various other situations where s 4(1) does not apply, none of which are presently relevant.  There is also an exception to the operation of s 4 for the use of a listening device in the public interest in s 6 of the new Act.

24. Under s 3 of the new Act, ‘private conversation’ is defined in terms which differ slightly from the definition in the old Act:

    private conversation means a conversation carried on in circumstances that may reasonably be taken to indicate that at least 1 party to the conversation desires it to be heard only by the other parties to the conversation (but does not include a conversation made in circumstances in which all parties to the conversation ought reasonably to expect that it may be heard by a person who is not a party to the conversation).

25. The communication or publication of information or material derived from the use of listening devices is governed by Division 2 of Part 2 of the new Act. 

26. In particular, s 12(1) provides that a person must not knowingly use, communicate or publish information or material derived from the use of a device in contravention of the Act, except in certain circumstances identified in s 12(2) (namely communication to a person who was a party to the conversation, with the consent of each party to the conversation, for the purposes of a relevant investigation, action or proceeding in relation to the contravention of the new Act, in the course of proceedings for an offence under the new Act, or otherwise in the course of duty or as required by law).  Section 12(3), on the other hand, provides that a person who obtains knowledge of information or material in a manner that does not involve a contravention of Part 2 is not prevented from communicating or publishing the knowledge so obtained even if the same knowledge was also obtained in a manner that contravened the Act.

27. Turning to the use that might be made of information or material gained from the use of a device that was lawfully used to protect a person’s lawful interests, and hence not in contravention of the Act, s 9 provides as follows:

    9—Communication or publication of information or material—lawful interest

    (1)A person must not knowingly use, communicate or publish information or material derived from the use of a listening device or an optical surveillance device in circumstances where the device was used to protect the lawful interests of that person except—

    (a)     to a person who was a party to the conversation or activity to which the information or material relates; or

    (b)     with the consent of each party to the conversation or activity to which the information or material relates; or

    (c)     to an officer of an investigating agency for the purposes of a relevant investigation or relevant action or proceeding; or

    (d)     in the course, or for the purposes, of a relevant action or proceedings; or

    (e)     in relation to a situation where—

    (i)     a person is being subjected to violence; or

    (ii)    there is an imminent threat of violence to a person; or

    (f)    to a media organisation; or

    (g)     in accordance with an order of a judge under this Division; or

    (h)     otherwise in the course of duty or as required or authorised by law.

    Maximum penalty:

    (a)     in the case of a body corporate—$50 000;

    (b)     in the case of a natural person—$10 000.

28. The concept of a ‘relevant action or proceedings’ referred to in s 9(1)(d) above is defined in s 3 in terms that extend to various forms of criminal and disciplinary proceedings, but not ‘ordinary’ civil proceedings such as the present proceedings.

29. Section 10 of the new Act provides that a person must not knowingly use, communicate or publish information or material derived from the use of a listening device in the public interest, except in accordance with an order of a judge under Division 2.  The only exceptions to this limitation are the use, communication or publication of the information or material to a media organisation, or by a media organisation in the public interest.

1. The power for a judge to make an order authorising the use, communication or publication of information or material derived from the use of a device is contained in s 11.  That section provides:

   11—Orders authorising use, communication or publication of certain information or material

   (1)For the purposes of sections 9 and 10, a person may, in accordance with the rules of court, apply to a judge for an order authorising the use, communication or publication of information or material derived from the use of a listening device or an optical surveillance device.

   (2)     An order under this section may—

   (a)     specify the information or material the subject of the order; and

   (b)     specify the manner in which, and to whom, the specified information or material may be used, communicated or published; and

   (c)     contain—

   (i)     conditions and limitations; and

   (ii)    any other matter as the judge thinks fit.

   Issues arising under the legislation

2. In the case of each of the 20 recordings that the plaintiffs seek to rely upon, it is necessary for me to consider both the lawfulness of the recordings, and the permissibility of their use as evidence in these proceedings.

3. The issue of lawfulness is dealt with in similar, but not identical, terms in ss 4 and 7 of the old Act and s 4 of the new Act. As mentioned earlier, the old Act was repealed by the new Act, which came into force on 18 December 2017. By reason of s 16(1) of the Acts Interpretation Act 1915 (SA), the repeal of the old Act did not affect the unlawfulness of anything done before its repeal.

4. It follows that the lawfulness of the recordings made prior to 18 December 2017 (being recordings #1 - #17) will fall to be determined by reference to the old Act and those made after that date (being recordings #18 - #20) by reference to the new Act.

5. The position in relation to the use of recordings in these proceedings is less clear.

6. Under the old Act, if a recording was made in contravention of s 4, then s 5 would ordinarily prevent its use in court proceedings.[3]  If a recording was made without contravention of s 4 by reason of it being made for the protection of a person’s lawful interests, then the use of that recording in court proceedings would be subject to the limitations under s 7(3).  In particular, it would be necessary to consider whether its use in the proceedings was “reasonably required for the protection of the person’s lawful interests”.  In circumstances where the legal proceedings related to the very interest that justified the recording in the first place, it would seem this would be fairly readily satisfied.

   [3]    Thomas v Nash (2010) 107 SASR 309 at [55].

7. However, given that the intended use of the recordings in these proceedings will occur after the repeal of the old Act, it would seem that the permissible use of all recordings must be considered by reference to the new Act. 

8. Under the new Act, the use of information or material derived from a listening device used to protect the lawful interests of a person is governed by s 9(1).  None of the permissible uses listed in that section have any potential application here, other than use “in accordance with an order of a judge under this Division” in s 9(1)(g).  The power to make such an order exists in s 11 of the new Act.

   Lawfulness of the recordings

9. There is no doubt that in the case of each telephone conversation and meeting, Mr Wentworth intentionally used a listening device to record what was said.  There is also no doubt in my mind that he did so without the consent, express or implied, of the other parties to those conversations or meetings.  The only issue so far as contravention of s 4 of the old Act and new Act is concerned, is whether each of the recordings was of a “private conversation”, and if so, whether the use of the listening device was made “in the public interest” or “for the protection of the lawful interests” of the plaintiffs (under the old Act) or was “reasonably necessary for the protection of the lawful interests” of the plaintiffs (under the new Act).

   Private conversations

10. I have earlier set out the definitions of private conversations under both the old and the new Acts.

11. In relation to the definition under the old Act, Doyle CJ said in Thomas v Nash:[4]

    The definition of “private conversation” indicates that a conversation is private if the conversation, as it takes place and progresses, is intended to be confined to the parties to the conversation, or known participants in the conversation.

    A conversation can be private even though the participants are at liberty to tell others about it later. In the Act, “private” is used not in the sense of “secret” or “confidential”, but in the sense of “not public”. A telephone conversation with a friend is a private conversation, even though the friend is at liberty later to tell another about it. On the other hand, a telephone conversation on talkback radio is not a private conversation.

    There is no reason to give a narrow meaning to the concept of “private conversation”, bearing in mind the objects of the Act. There is no need to trace the precise limits of the concept of a private conversation. I am satisfied that each of the conversations was a private conversation, in the sense that the circumstances indicated that the participants other than Mr Nash wished the actual conversation to be confined to the known participants.

    [4]    Thomas v Nash (2010) 107 SASR 309 at [36]-[38].

12. In contesting the defendants’ submission that all 20 recordings in this case were of private conversations, Mr Wentworth relied upon the commercial nature of the matters discussed.

13. In Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd,[5] the issue was the lawfulness of the recording of meetings of a management committee consisting of representatives of the parties to a significant mining joint venture.  In holding that the meetings were not “conversations”, but were nevertheless “private”, Sulan J reasoned as follows:[6]

    Counsel for Alliance submits that the Act does not prohibit the recording of private “communications” but only “private conversations”. Counsel contends that not all communications are conversations.

    I agree. Although the conversation in the Act should not be given a restricted meaning, the communication should have the characteristics of a conversation which includes a degree of informality and would not normally apply to the proceedings of a committee.

    Proceedings which take place at the Management Committee meetings are of an entirely different character to a “private conversation”.  They have a commercial character and purpose. Each party to the joint venture is a body corporate which acts through representatives or agents, who have a duty to report to the corporation.  The exchanges at meetings do not have the required characteristics of a conversation. Meetings have formal written agendas upon which the parties exchange positions orally and in writing, including the provision of reports. The parties seek to reach decisions that will affect the legal rights and duties of the parties to the joint venture. A formal record is kept of the meeting. There is a formality about meetings of the joint venture.  Statements made and positions taken orally by those entitled to speak at the meeting cannot be said to be conversations in the ordinary meaning of that word.

    As to the question of whether the communication is private, Alliance submits that a final determination of privacy involves reference to whether or not the communication is desired to be confined to the parties to the communication. Counsel for Alliance submits that the parties simply could not have intended the communication to be private given that each representative present has, to the knowledge of the other, a duty to report the communications to his or her principal. Counsel for Quasar submits that the content of the discussions at the meetings was and is highly confidential material, protected by a confidentiality clause in the JVA.  It is contended that the term “private conversation” should not be given a narrow meaning having regard to the objects of the Act, and that it should not be construed to exclude conversations of a business or employment nature.

    [5]    Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266.

    [6]    Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266 at [30]-[33].

14. After then referring to the passage from the reasons of Doyle CJ in Thomas v Nash extracted above, Sulan J added:[7]

    The fact that each representative has a duty to report back to their respective principals would not alter the private nature of the verbal discussions which take place during the Management Committee meetings. As observed by Doyle CJ in Thomas, a conversation will be private even though the participants are at liberty to tell others about it later. It is clear that the nature of the communications which take place at the meetings are of a confidential nature and are private in the sense that they are “not public”.

    I conclude that the communications at the meetings, although private, are not conversations within the meaning of s 4 of the Act.

    [7]    Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266 at [35]-[36].

15. While I accept the validity of the distinction between conversations and more formal commercial communications drawn by Sulan J, the limits of that distinction are apparent from the reasons of White J in RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 2).[8]In that case, a recording was made of a meeting that addressed various matters in dispute between commercial parties.  After referring to the passage from the reasons of Doyle CJ in Thomas v Nash extracted above, White J said:[9]

    In my opinion, there is little difficulty in concluding that the meeting on 11 August 2015 was a private conversation in the sense discussed by Doyle CJ. It concerned the internal business affairs of the State Companies. Amongst other things, the participants discussed the pricing for the hire of the temporary fencing panels and the identification of persons or entities to which the panels could be hired. These matters are of the very kind which it is reasonable to suppose that the participants intended to keep private in the sense discussed in Thomas v Nash. It is reasonable to suppose that those attending intended that the matters discussed would remain private even if Mr Schirripa was at liberty to tell other investors later about what had been discussed.

    Accordingly, the Applicants' concession concerning the private nature of the conversation was appropriate.

    [8]    RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 2) [2018] FCA 404; see also Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 at [8]-[14].

    [9]    RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 2) [2018] FCA 404 at [24]-[25].

16. The above authorities address the definition of “private conversations” under the old Act.  While the definition in the new Act is in slightly different terms, I do not think the differences are material.  Under the old Act, the focus was upon whether the other participant(s) desired that the conversation be confined to the parties to the conversation.  While the ability of parties to repeat what was said to others did not prevent a conversation being private, it would be difficult to conclude that it was intended to be confined to the parties if the conversation were held in circumstances where it was likely to be overheard by a person or people not party to the conversation.  The additional words in parentheses in the definition of “private conversation” in the new Act thus serve only to make express what was already inherent in the definition in the old Act.

17. In my view, each of the 20 telephone conversations and meetings recorded by Mr Wentworth were “private conversations”. 

18. As Mr Wentworth acknowledged, there is no basis to suggest that any of the telephone conversations were overheard or intended to be overheard by others.  In the case of one of the conversations (recording #5) it would appear that Bianca overheard (or was told) some of what was being discussed between Mr Wentworth and David.  One of the statements made by her was reported to Mr Wentworth by David during the course of the conversation.  In my view, her involvement enables her to be treated as a participant in the conversation.  I do not think it deprived the conversation of its character as a private conversation. 

19. The telephone conversations did each have a commercial flavour to them in that they involved discussion of matters relating to the plaintiffs’ work for, and commercial arrangements with, the defendants, and the allegations that have been made about the competence of his work.  However, given the informal and unstructured nature of the conversations, I consider that they were nevertheless both “private” and “conversations”. 

20. Similarly, I consider that the six ‘meetings’ that Mr Wentworth recorded were private conversations.  As mentioned earlier, Mr Wentworth suggested that some of these meetings may have been overheard.  In the case of recording #13 (the 2 June 2017 meeting with David), Mr Wentworth mentioned the involvement of Bianca.  However, in my view, much like the telephone conversation referred to above, her involvement meant she was a participant in the meeting rather than someone who overheard it.  In the case of recordings #16 (the 16 June 2017 meeting with Doug Harrold) and #20 (the 2 March 2018 meeting with Leanne and Mark), Mr Wentworth suggested that there were other people present who may have been able to overhear some of what was being said if they sought to do so.  However, in my view, the evidence in this respect was too vague to warrant a conclusion that what otherwise bore the hallmarks of private discussions were not in fact private.

21. Further, like the telephone conversations, the commercial flavour to the discussions did not deprive them of their status as conversations.  Even though they may fairly be described as meetings, they were not formal and structured meetings that might be said to be communications that were not conversations (like the meetings in Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd).  Rather, they were informal and unstructured meetings in the nature of conversations (like the meeting in RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 3)).

    Protection of lawful interests

22. A convenient starting point for consideration of the meaning of “for the protection of the lawful interests” under the old Act is the reasons of Doyle CJ in Thomas v Nash.[10]

    [10]   Thomas v Nash (2010) 107 SASR 309.

23. In that case, a central issue was whether the deceased mother of the defendant (Mr Nash) had capacity to make a will.  Mr Nash sought to rely upon recordings he had made of conversations with his mother (and other family members) said to bear upon this issue.  Doyle CJ rejected Mr Nash’s explanation that he made the recordings in case his mother forgot things.  Picking up on Mr Nash’s acknowledgement that he made the recordings so that he could prove things, Doyle CJ found that he made the recordings in case they might later prove to his advantage to have them.[11]  In rejecting the contention that the recordings were made for the protection of Mr Nash’s lawful interests, Doyle CJ said:[12]

    I find that Mr Nash did not record the conversations “for the protection of the lawful interests of” Mr Nash.

    Mr Nash made the recordings in case it might later turn out that in some way he could use them to his advantage. There was no litigation in contemplation at the time. Even if there was, my conclusion would be the same. I do not consider that a person makes a recording to protect his lawful interests simply because he has a hope that in contemplated litigation the recording might be used to his advantage. This is not a case in which the recording was made to uncover a crime, or to resist an allegation of crime.

    I have considered a number of decisions dealing with the relevant provisions of the Act, and with similar legislation elsewhere. The decisions are: T v Medical Board (SA) (1992) 58 SASR 382 at 399 (Matheson J), at 421 (Olsson J) and at 423 (Debelle J); Public Trustee v Alvaro (1995) 182 LSJS 383 at 405 (Legoe AJ); Violi v Berrivale Orchards Ltd (2000) 99 FCR 580; [2000] FCA 797 at [27]-[33] (Branson J); R v Le (2004) 60 NSWLR 108; [2004] NSWCCA 82 at [47] (Giles JA), at [79] (Hulme J) and at [83]-[84] (Adams J); Sepulveda v The Queen (2006) 167 A Crim R 108; [2006] NSWCCA 379 at [142]-[143] (Johnson J), with whom the other members of the court agreed.

    In none of those decisions is there an attempt to identify comprehensively the scope of the expression “lawful interests”. That is not surprising. It is an expression which is best left to be applied case-by-case, subject to some general guidelines.

    Each decision is an application of the expression to its particular facts. In most of those decisions it was accepted that a mere desire to have a reliable record of a conversation is not enough. I agree. Most of the decisions proceed on the basis that a desire to gain an advantage in civil proceedings would not ordinarily amount to a relevant lawful interest, although of course each case has to be considered on its facts. Several of the cases proceed on the basis that where the conversation relates to a serious crime, or an allegation of a serious crime, or to resisting such an allegation, a court is more likely to find that the recording of a conversation relating to the crime can be made in the protection of the person’s “lawful interests”.

    A number of the decisions make the point, with which I agree, that the exception in s 7(1)(b) should not be read so widely that it undermines the protection given by s 4, which protection is at the very heart of the Act.

    I consider that those decisions are consistent with the opinion I have expressed above, and that there is nothing in them that calls for a contrary conclusion.

    [11]   Thomas v Nash (2010) 107 SASR 309 at [25].

    [12]   Thomas v Nash (2010) 107 SASR 309 at [44]-[50].

24. One of the decisions referred to in the above passage that has been referred to in several subsequent cases is Violi v Berrivale Orchards Limited.[13]  In that case Mr Violi recorded various conversations with Mr Pumpa “for the purpose, should he consider it necessary, to publish the conversations, or a record of them, to persons who were not parties to the conversations should Mr Pumpa later ‘not tell the truth about what was happening’ or should the respondent later deny the existence of a contract between the applicants and the respondent.”[14]  The issue under the New South Wales legislation was whether the recordings were “reasonably necessary for the protection of the lawful interest” of Mr Violi.  Branson J said:[15]

    [13]   Violi v Berrivale Orchards Limited (2000) 99 FCR 580.

    [14]   Violi v Berrivale Orchards Limited (2000) 99 FCR 580 at [3].

    [15]   Violi v Berrivale Orchards Limited (2000) 99 FCR 580 at [26]-[33].

    The only "lawful interests" of Mr Violi that have been suggested in justification of his use of the listening device are his interests in the matters now pleaded in the statement of claim in this proceeding and denied by the defence. That is, the "lawful interests" sought to be relied upon are the very subject matter of this proceeding.

    …

    Unassisted by authority, it seems to me that "lawful interests" are to be distinguished from "legal interests". I do not consider that s 5(3)(b)(i) calls for a legal interest in the sense of a legal right, title, duty or liability. Rather I consider that "lawful interests" within the meaning of the paragraph are interests which are not unlawful. The expressions "legitimate interests" or "interests conforming to law", in my view, convey similar meanings to thc intended meaning of "lawful interests" in the paragraph.

    However, in determining what may constitute a person's "lawful interests" within the meaning of s 5(3)(b)(i), of the Listening Devices Act, it is necessary to consider the context in which the expression is used. That context includes Pt 3 of the Act which is concerned with the admissibility of evidence in legal proceedings.

    Section 13 of the Listening Devices Act creates a prima facie prohibition on the giving of evidence obtained by the use of a listening device in contravention of s 5 of the Act. This prima facie prohibition suggests strongly against an intention in the legislature to exclude from the operation of s 5(1) the recording of private conversations for the purpose of using the recording as evidence in proposed or pending legal proceedings - notwithstanding that the obtaining of reliable and probative evidence is ordinarily a lawful and proper thing to do.

    …

    It is not necessary for me to attempt to determine exhaustively the types of circumstance in which the recording of a conversation by a principal party to the conversation "is reasonably necessary for the protection of the lawful interests of that principal party" within the meaning of s 5(3)(b)(i) of the Listening Devices Act. I am inclined, however, to think that the recording of a conversation intended by the parties involved to result in an oral contract in terms outlined during the conversation would be such a circumstance.

    I interpolate that that is, of course, not this case as the alleged contract is pleaded to have been made before the date of the two conversations. Similarly, I am inclined to think that the recording by one party of a threatening telephone conversation or of a conversation forming part of a blackmail attempt would fall within the paragraph. However, such circumstances are far from the circumstances of this case.

    Having regard to the context in which the expression "lawful interests" is found in s 5 of the Listening Devices Act, I conclude that the recording by Mr Violi of the two conversations was not reasonably necessary for the protection of his lawful interests within the meaning of s 5(3)(b) of the Listening Devices Act. It follows from this conclusion that Mr Violi used a listening device in the case of each of the two conversations in contravention of s 5 of the Act.

1. In appearing to equate “lawful interests” with interests that are not unlawful, and as treating them as similar in meaning to “legitimate interests” or “interests conforming to law”, it might be said that Branson J supported a relatively broad interpretation of lawful interests.  Certainly some subsequent interstate decisions have drawn on this aspect of her Honour’s reasons in supporting an apparently broader interpretation of “lawful interests” than the reasons of Doyle CJ in Thomas v Nash might be thought to suggest. 

2. However, in understanding Branson J’s reasoning, it must be borne in mind that her Honour did acknowledge that the statutory context of the phrase places some limits upon its meaning, and that her Honour ultimately concluded that the recordings made while the parties were in dispute about their contractual arrangements and their conduct towards one another, and for use in legal proceedings in connection with that dispute, were not “reasonably necessary for the protection of lawful interests”.

3. In terms of the subsequent interstate decisions to which I have referred, they are not all easy to reconcile.  In part this is a reflection of the case and fact specific nature of the concept of lawful interests.  By way of examples:

   ·In Chao v Chao[16] Brereton J held that it was reasonably necessary for the protection of the plaintiff’s lawful interests to record telephone conversations she had with the defendant in circumstances where “by the time of the relevant conversation, a serious dispute had erupted between the defendant and the plaintiff.  It was obvious that who was going to be believed as to the different versions of the arrangements originally made between them in respect of the Horace Street property was highly contentious.  On the plaintiff’s case, the defendant was threatening to eject her from the Horace Street property.  Indeed, litigation had already commenced.”

   [16]   Chao v Chao [2008] NSWSC 584 at [8]-[9].

   ·In Metz Holdings Pty Ltd v Simmac Pty Ltd (No 1)[17] Barker J held that in circumstances where there was a dispute between the parties as to the legal obligations of the respondents to the applicants, and where the second applicant had become concerned about the behaviour of the second respondent and his ability to have a rational discussion with him,[18] the recording of conversations between them by the first applicant was reasonably necessary for the protection of the applicants’ lawful interests.

   [17]   Metz Holdings Pty Ltd v Simmac Pty Ltd (No 1) (2011) 193 FCR 195 at [24].

   [18]   Metz Holdings Pty Ltd v Simmac Pty Ltd (No 2) [2011] FCA 981 at [159]-[160].

   ·In Georgiou Building Pty Ltd v Perrinepod Pty Ltd[19] Allanson J held that it was not reasonably necessary for the protection of the lawful interests of the defendant to record a meeting.  The recording was made pursuant to a usual practice of recording meetings, and at a time when there was no dispute.

   [19]   Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 at [17].

   ·In Levy v Bablis,[20] Meagher JA (with whom Beazley and Macfarlan JJA agreed) held that the relevant conversation was not recorded to protect any lawful interest that the recording person might have had in maintaining an action for recovery of the monies in dispute.  It was not, for example, recorded for the purpose of obtaining admissions about the disputed transaction in respect of which the relevant person may have had legal rights.  Rather it was recorded for the purpose of trapping the other parties to the conversation into engaging in further conduct, and then using the prospect of revelation of this conduct to “persuade” them to meet their obligation arising out of the earlier transactions.  This did not involve the protection of any lawful interest.

   ·In DW v R,[21] Ward JA (with whom Harrison and Hulme JJ agreed) upheld a trial judge’s decision to the effect that a recording made by a child complainant of a conversation with the defendant was made for the purpose of protecting the complainant’s lawful interest in protecting herself from continuing abuse and exploitation.

   ·In Dimech v State of Tasmania[22] Porter J (with whom Pearce J agreed) held that the recording of a telephone conversation by the operator taking a call on behalf of a telephone betting service was reasonably necessary for the protection of their lawful interests.  A recording by which the details of a bet given by the caller could be later confirmed would be invaluable in the case of any dispute.

   ·In Dong v Song,[23] the plaintiff alleged misleading and deceptive conduct arising out of the purchase of a restaurant business.  The plaintiff sought to rely upon a covert recording that she made of a meeting she had with the defendant and another during which it was alleged that he made certain admissions.  In her ruling following a voir dire, McWilliam AsJ considered a number of the above authorities.  In holding that the recording was admissible, her Honour distinguished Levy v Bablis on the ground that the plaintiff was not engaged in an attempt to trap the defendant into making admissions.  Her Honour also distinguished Thomas v Nash on the ground that the plaintiff was in a legal dispute at the time of the recording hence was acting to protect her lawful interests and not merely pursuant to some abstract desire to have a reliable record or hope that the recording might be used to her advantage.  Her Honour explained:[24]

   The evidence set out above establishes that at the time the plaintiff made the recording, she felt cheated in her business deal with the defendants.  There were things occurring that might be described as causing her trust in the defendants to be eroded.  One of the things that caused the plaintiff to mistrust the defendants in their dealings with her was that she kept asking for the contract for sale (which recorded the purchase price) and it was not being provided to her. 

   By the time the plaintiff decided to record her conversation with the defendants the plaintiff had taken legal advice, and the Statement of Claim was filed in these proceedings on 29 March 2016, within a month of the conversation being recorded.  The facts are thus aligned with those in Chao in that a serious dispute had erupted and it was anticipated there would be a dispute as to what was represented to the plaintiff.  That is sufficient to give rise to a lawful interest.

   As was the case in Violi, and contrary to the submission of the defendants, it does not matter here that the alleged representations constituting the misleading or deceptive conduct were made more than a year before the meeting on 5 March 2016 between the parties that the plaintiff recorded.  The very nature of a claim for misleading and deceptive conduct is that the plaintiff does not realise he or she is being misled at the time the business transaction occurs.  Indeed, on the voir dire the plaintiff said that in the beginning she trusted the defendants ‘very much’.

   This is not a case where a trap was being set.  The plaintiff was not seeking to blackmail the defendants, as was the case in Sepulveda.  She was also not seeking to use the recording to induce the defendants into further conduct, which she could then threaten to disclose, in order to persuade the defendants to meet asserted obligations, as in the case of Levy v Bablis …  Indeed, in Levy, Meagher JA distinguished the conduct described, which his Honour characterised as a ‘trap’ at [109], from a circumstance where a conversation was recorded for the purpose of obtaining admissions as to the transactions which had been undertaken and in respect of which a person had legal rights. Beazley JA … and Macfarlan JA both agreed with the reasoning of Meagher JA: Levy at [1] and [2]. In my view, the plaintiff’s conduct in the present case falls squarely within that latter scenario.

   As at 5 March 2016, the plaintiff had then existing legal rights in relation to the past conduct of the defendants.  She was not in the position of a victim of crime who might invoke the assistance of police.  She was in the position of a person who had an interest in confirming the previous representations that had actually been made to her and in having a reliable record of what the defendants said to corroborate her position, not in the abstract or in the hope that it might be used to her advantage (c.f. Nash at [45], [48]), but in circumstances where the plaintiff now had real doubts about the honesty of the defendants and where legal proceedings were not only in contemplation but imminent, and would turn on oral conversations between those parties.

   I was therefore satisfied that the interests the plaintiff sought to protect were ‘lawful interests’ on the authorities above, and that the recording of the conversation was ‘necessary’ in the sense of being appropriate, on objectively reasonable grounds.

   [20]   Levy v Bablis [2013] NSWCA 28 at [109].

   [21]   DW v R [2014] NSWCCA 28 at [49]-[50].

   [22]   Dimech v State of Tasmania [2016] TASCCA 3 at [9].

   [23]   Dong v Song [2018] ACTSC 82.

   [24]   Dong v Song [2018] ACTSC 82 at [44]-[49].

4. Returning to the authorities in relation to the South Australian legislation, in Groom v Police[25] Nicholson J upheld the Magistrate’s decision that a recording made by a person who had a genuine concern for their safety and with a view to assisting and proving a contravention of an intervention order was made in pursuit of that person’s lawful interests.[26]  In so holding, his Honour accepted that a court will more readily find that a recording was made in the protection of a person’s lawful interests in circumstances where the conversation relates to a serious crime.[27]

   [25]   Groom v Police [2015] SASC 101.

   [26]   Groom v Police [2015] SASC 101 at [43].

   [27]   Groom v Police [2015] SASC 101 at [35].

5. In Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd, Sulan J referred to the reasoning of Doyle CJ in Thomas v Nash on this issue.  His Honour agreed that simply obtaining an accurate record of the meeting was not sufficient to constitute a lawful interest; and that making a recording in contemplation that it might be used if there is some form of litigation in the future is also not a lawful interest.[28]  However, his Honour identified various lawful interests on the part of the plaintiff in that case:[29]

   I conclude that Alliance has a number of lawful interests which it can protect. The meetings of the Management Committee operate within a commercial setting in which the commercial interests of the joint venturers are of central importance. The meetings take place pursuant to one or more contractual agreements for the purpose of carrying those agreements into effect. Motions agreed or passed at meetings, and other decisions reached, affect the substantive rights and obligations of the parties. Accordingly, it is for the protection of the interests of both joint venturers that there is an accurate record kept of communications at the meetings. These lawful interests do not in my view undermine the operation of s 4 of the Act. Rather, the recording of the discussions at the meetings ensure that there is an accurate record of the discussions leading up to the recorded decisions of the joint venture. They agreed to the nature of the business transacted at the meetings, and the obligations on the representatives of each party to report back to their respective superiors where there is a legitimate interest in having an accurate record of the discussions. It is not difficult to imagine the situation that senior personnel of one or other joint venturer might seek an explanation as to how a resolution was arrived at and what those at the meeting contemplated when they proposed and voted upon a resolution. If the resolution is ambiguous discussions leading to it may assist in interpreting it and how it is to be implemented.

   [28]   Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266 at [48]-[49].

   [29]   Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266 at [50].

6. Sulan J rejected the contention that Alliance was acting for some ulterior motive in recording the meetings,[30] and thus accepted that it did have a legitimate and lawful interest that it was seeking to protect in recording the meetings.[31]

   [30]   Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266 at [53].

   [31]   Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266 at [58].

7. Finally, there is the decision of White J in RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 3).[32]In applying the old Act, his Honour said:[33]

   The term “lawful interests” in the context of s 7(1) and of its cognates elsewhere has been considered in a number of authorities.  See Thomas v Nash at [43]‑[49], followed in Groom v Police [2015] SASC 101 at [34]‑[35] (Nicholson J). See also DW v The Queen [2014] NSWCCA 28; (2014) 239 A Crim R 192 at [27]‑[37].

   The Applicants submitted that a number of matters in combination indicated that Mr Schirripa had a lawful interest in recording the meeting: he was a director of a number of the State Companies and of First Applicant (RRG) and as such owed duties to those companies; he was concerned that his fellow director, the Second Respondent, was not providing necessary information; he was concerned that it was contrary to the interests of the businesses of the State Companies for the Second Respondent to keep the information to himself; that he suspected that the Second Respondent had tricked him into putting money into the VTF businesses; and that he was considering investment in the VTF business in Queensland.  It was said that by reason of these matters it was in his lawful interest to make notes so as to be able to recall the details of the meeting. 

   A number of the authorities have made the point that an exception of the kind contained in s 7(1)(b) is not to be construed so widely so as to undermine the protection given by s 4 and its counterparts, that protection being at the very heart of the Listening Devices Act.  It is also to be kept in mind that it is Mr Schirripa’s purpose in using the recording device at the relevant time which is to be considered for the purposes of s 7(1)(b). 

   In his affidavit of 16 November 2017, Mr Schirripa deposed that his purpose in making the recording was “so I would be able to make notes and recall all the detail[s]”.

   In Thomas v Nash at [48], Doyle CJ endorsed the view that a mere desire to have a reliable record of a conversation is insufficient, by itself, to constitute “protection of the lawful interests” of the person for the purposes of s 7(1). I respectfully am of the same view.

   The matters to which counsel referred appear to be in the nature of a retrospective justification for Mr Schirripa’s purpose and not reflective of his actual purpose.  He did not depose to any of these matters being his purpose nor indicate how the recording of the conversation related to his pursuit of the identified topics.  Accordingly, I consider that the Applicants have not established that Mr Schirripa used his mobile phone to record the conversation for the protection of his lawful interests. 

   In these circumstances, I consider that the prohibition in s 4 applies and that it was contravened by Mr Schirripa on 11 August 2015, even if he acted innocently in doing so. 

   [32]   RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 3) [2018] FCA 404.

   [33]   RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 3) [2018] FCA 404 at [27]-[33].

8. Drawing all of the above threads together, it remains the case that the concept of “lawful interests” is of uncertain content.  While some general propositions hold true, and some guidance may be gained from a consideration of the authorities, the issue of whether a recording was made for the protection of a person’s lawful interests remains one very much anchored in the facts of the particular case.

9. While the reasons of Branson J in Violi v Berrivale Orchards Limited, and several of the interstate decisions that have applied her Honour’s articulation of “lawful interests”, suggest a relatively broad view of that phrase, it is also important to bear in mind the need to ensure that the phrase is construed in its statutory context.  In particular, as a number of decisions have emphasised,[34] the exception in relation to “lawful interests” should not be construed so widely as to undermine the protection intended to the afforded to private conversations under s 4 of the legislation.

   [34]   For example, see Doyle CJ in Thomas v Nash (2010) 107 SASR 309 at [49]; and White J in RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 3) [2018] FCA 404 at [29].

10. Based on my survey of the authorities, it would appear that a recording made merely pursuant to a practice of doing so, for the purpose of having a reliable record or in case it turns out to be advantageous in some future setting is not enough to warrant its characterisation as a recording made to protect the person’s lawful interests.  Further, this will generally be so even if the recording occurs in a commercial setting where a person’s business or legal interests are the subject of discussion, and may still be so even where the person making the recording has concerns about the honesty or conduct of the other party to the conversation, is in dispute with that party or is contemplating proceedings against that party.  In Violi v Berrivale Orchards Limited, the fact that the parties were in a contractual dispute and that one party feared the other might not tell the truth was not enough; in Thomas v Nash, the contemplation of future litigation was not enough; and in RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 3), the existence of concerns about the conduct of another in their commercial dealings was not enough. 

11. In summary, while a threat to a person’s physical safety, or the desire to uncover a crime or resist an allegation of crime, will often give rise to a lawful interest that would warrant protection through the use of a listening device, not every commercial or legal interest, or dispute in relation to such an interest, will suffice to establish a lawful interest for the purposes of the legislation.

12. However, it would seem that where a dispute has arisen, and has crystallised into a real and identifiable concern about the imminent potential for significant harm to the commercial or legal interests of a person, this may suffice to give rise to lawful interests warranting protection through the use of a listening device.  This was so in Chao v Chao and Metz Holdings Pty Ltd v Simmac Pty Ltd (No 1).  It was also so in Dong v Song, where McWilliams AsJ considered it critical that the situation had moved from a general or abstract concern to have a reliable record in the hope it might later be of some advantage, into a particular concern about the honesty of the defendants and the significance of the relevant conversation to imminent legal proceedings.

13. Turning to the recordings in this case, it seems to me that they were not all made for the same purpose.  In my view, some were made for the protection of the plaintiffs’ lawful interests, but some were not.

14. The plaintiffs did not clearly articulate the lawful interests that they contended they were protecting.  However, doing my best to construe the evidence and submissions of the plaintiffs, the lawful interests upon which the plaintiffs rely in justifying the covert recordings were their commercial and legal interests arising out of their ‘contractual’[35] arrangements with the defendants.  In that respect, I consider that the plaintiffs had a lawful interest in attempting to maintain, and avoid losing, their flow of work from the defendants.  Related to that, I consider that they also had a lawful interest in understanding, and attempting to refute, the allegations that were being made about Mr Wentworth’s driving and which represented a threat to that work. 

    [35]   For present purposes, the precise legal characterisation of the arrangements, which is a matter of dispute in the proceedings, does not matter.

1. However, it does not follow from the above that all of the 20 recordings are properly characterised as having been made “for the protection” of these lawful interests.

2. In relation to recording #1 (the 27 May 2016 telephone conversation with Doug Harrold), this occurred almost a year prior to the emergence or crystallisation of the dispute in relation to the plaintiffs’ contractual arrangements with the defendants.  The recording of this conversation cannot be characterised as made for the protection of the plaintiffs’ lawful interests the subject of that later dispute.  In his evidence in relation to this conversation, Mr Wentworth explained his concerns about “getting the run around” from Glen Carron, and his desire to have a recording in case Doug Harrold later said something different.  In my view, despite Mr Wentworth’s general concerns about his treatment by Glen Carron at this point in time, this justification does not rise above a recording for the general purpose of obtaining a reliable record, and in case it turns out to be advantageous at some future time.  On the authorities, this is not enough to establish that the recording was for the protection of the plaintiffs’ lawful interests.

3. In relation to recording #2 (the 18 August 2016 telephone conversation with Mick Harrold), it was again too remote in time and subject matter to the lawful interests that I have identified to bring them within the “for the protection of lawful interests” exception.  Mr Wentworth’s evidence was simply that he wanted a record of Mick Harrold’s abuse so that no one could later suggest there was no abuse.  While in a very general and loose sense it might be said that Mr Wentworth had an interest in not being abused, and in attempting to address the abuse, I do not think this is sufficient to warrant characterisation of his recording of this conversation as a recording “for the protection of his lawful interests” under the legislation.  The legislation assumes, or requires, an interest of a more substantial nature than this.

4. In relation to recording #3 (the 27 October 2016 telephone conversation with Mick Harrold), it raises similar considerations to recording #1.  For essentially the same reasons as I have given in relation to that recording, I do not think this recording was made for the protection of the plaintiffs’ lawful interests.

5. However, in relation to several of the recordings from 17 March 2017 onwards, different considerations apply.  The reason for this is that it was on 17 March 2017 that Mr Wentworth was informed by Mick Harrold of Glen Carron of some of the allegations about him that were apparently emanating from Garden Grove.  In my view, from the time of this conversation, and through to at least 26 and 27 April 2017, when he was informed that the defendants’ work was being withdrawn from him, it was clear that the parties were in dispute and that the plaintiffs’ commercial interests that I have identified were in jeopardy.

6. In his evidence, as extracted earlier in these reasons, Mr Wentworth said that it was “only right and proper” given the allegations that were being made, and given that the defendants were taking the line of withdrawing supply to him, that he record exactly what was being said so there could be no misunderstanding of who said what.  He considered this necessary and appropriate given that he was on notice that determinations (about the supply of work to him) were being made based upon the allegations about him.

7. In my view, the recordings of Mr Wentworth’s conversations with representatives of the defendants during this period from 17 March 2017 to 27 April 2017 (recordings #4, #6, #7, #9, #10 and #11) can fairly be characterised as made “for the protection of the lawful interests” of the plaintiffs.  During this period, Mr Wentworth had more than general concerns about the defendants’ conduct, and more than a mere abstract or general desire to obtain a reliable record in case it might prove to be advantageous.  Rather, he faced a very real and imminent threat to his commercial interests.  I accept that the recordings of his conversations with the defendants’ representatives during this period were made with a view to protecting those commercial interests, and hence were made for the protection of his lawful interests.

8. During the same period of time, Mr Wentworth also recorded three conversations with third parties (that is, people who were not representatives of either of the defendants), being recordings #5, #8 and #12.  On balance, I consider that these recordings were also made for the protection of the plaintiffs’ lawful interests.  The conversations occurred, and the recordings were made, at a time when the plaintiffs’ commercial interests were in jeopardy, and in an attempt to get to the bottom of the allegations that were being made about Mr Wentworth and their source.  I accept that the recordings that were made so as to obtain a reliable record of these conversations at a time, and in an environment, that justifies their characterisation as recordings “for the protection of the lawful interests” of the plaintiffs.

9. However, I take a different view again in relation to the balance of the recordings made by Mr Wentworth.  Of the eight remaining recordings, seven of them (recordings #13, #14, #15, #17, #18, #19 and #20) were with third parties.  In my view, these recordings cannot be characterised as being for the protection of the plaintiffs’ lawful interests.  By the time of these conversations (which ranged from early June 2017 through to early March 2018), it was clear to the plaintiffs that they had lost their supply of work from the defendants.  It was also clear to the plaintiffs that they had lost this work on the basis of allegations that they considered to have no factual foundation.  On my understanding of these conversations, Mr Wentworth was no longer looking to protect his commercial arrangements with the defendants; rather he was looking to collect evidence that would assist him in contemplated, and then actual, legal proceedings.  While it is true that the legal proceedings relate to the plaintiffs’ commercial interests in their arrangements and dealings with the defendants, I consider that these recordings were made with a view to advancing the proceedings, and obtaining evidence for use in those proceedings.  I am not satisfied that they were recordings made “for the protection” of the lawful interests of the plaintiffs. 

10. In my view, this conclusion is consistent with Doyle CJ’s observation in Thomas v Nash[36] that “a desire to gain an advantage in civil proceedings would not ordinarily amount to a lawful interest”; and with the reasoning of Branson J in Violi v Berrivale Orchards Limited[37] to the effect that a recording for the purpose of use as evidence in proposed or pending legal proceedings would ordinarily be proscribed, despite the obtaining of evidence being a lawful and proper thing to do.  These authorities suggest a distinction between advancing an interest in particular legal proceedings, and protecting one’s lawful interests – even if, as would often be the case, the legal proceedings relate to some underlying lawful interest.

    [36]   Thomas v Nash (2010) 107 SASR 309 at [48].

    [37]   Violi v Berrivale Orchards Limited (2000) 99 FCR 580 at [31].

11. To the extent that Mr Wentworth’s evidence addressed these conversations, I do not consider that he has identified, let alone established, a lawful interest that the recordings were intended to protect.

12. I have reached the same conclusion in relation to recording #16 (the 16 June 2017 conversation with Doug Harrold).  Mr Wentworth did not give any evidence about this recording.  Based on the transcript of the conversation, it was not an attempt by Mr Wentworth to obtain information about his commercial position that he might have an interest in accurately recording.  Rather, it involved an attempt to convince Doug Harrold to take his “last chance” to return the work to the plaintiffs before the plaintiffs embarked upon court proceedings.  I am not satisfied that this recording was made for the protection of the plaintiffs’ lawful interests.

    Public Interest

13. While the plaintiffs made passing reference to the recordings being made in the public interest, this submission was never developed.  I do not consider that any question of public interest arises in relation to the recordings made by Mr Wentworth.

    Summary

14. The effect of the above is that I am satisfied that recordings #1 - #3 and #13 - #17 were made in contravention of s4 of the old Act, and that recordings #18 - #20 were made in contravention of s4 of the new Act.  I am not satisfied that recordings #4 - #12 were made in contravention of the legislation.

    Permissible use of the recordings

15. If the use of the recordings made during the currency of the old Act were governed by that Act, then the use of those made in contravention of that Act in these proceedings would be precluded by s5 of the old Act, and the use of those made lawfully would be permitted under s7(3)(d) of that Act.

16. However, as mentioned, it is my view that the use of all of the recordings in these proceedings is governed by the new Act.  Certainly this is the basis upon which the parties approached the issues arising on the voir dire.

17. In relation to those recordings that were made in contravention of the legislation (recordings #1 - #3 and #13 - #20), and hence which were not made to protect the lawful interests of the plaintiffs, their use in these proceedings is proscribed by s 12(1) of the new Act.  Their use in these proceedings would not fall within any of the exceptions in s 12(2) of that Act.  I observe in passing, however, that s 12(3) would nevertheless permit Mr Wentworth to give oral evidence about the relevant conversations – subject, of course, to that evidence being otherwise relevant and admissible.

18. In the circumstances, there is no need to consider whether the court has a discretion, along the lines of the Bunning v Cross[38] discretion, to exclude evidence of the unlawfully obtained recordings.  But to the extent that any such discretion did arise, for reasons equivalent to those given by Doyle CJ in Thomas v Nash,[39] I would exercise that discretion to exclude the unlawfully obtained recordings.

    [38]   Bunning v Cross (1978) 141 CLR 54.

    [39]   Thomas v Nash (2010) 107 SASR 309 at [56].

19. Turning to the recordings that I have held were made for the protection of the plaintiffs’ lawful interests (recordings #4 - #12), their use is governed by s 9 of the new Act.  The only exception to the general proscription against use in that section is the s 9(1)(g) exception in relation to use “in accordance with an order of a judge under this Division”. 

20. The issue is thus whether I consider it appropriate to make an order under s 11(1) of the new Act authorising the use of these nine recordings in these proceedings.  There is no guidance in the terms of s 11(1) as to the exercise of the court’s discretion under this section.  The defendants contend that it cannot be sufficient that the recordings were made for the protection of the plaintiffs’ lawful interests.  In this respect, the defendants point to the structure and terms of s 9(1).  That section identifies a number of quite specific circumstances or contexts in which the recordings might be used.  And given that it provides for their use in the course of, or for the purpose of, certain types of legal proceedings (namely, a “relevant action or proceeding”) which do not include ‘ordinary’ civil proceedings, the defendants contend that I should not lightly conclude that it was appropriate to use the recordings in these proceedings.

21. I accept that the mere fact that a recording was made for the protection of a person’s lawful interests would not be sufficient to make its use appropriate in civil proceedings generally.  However, in circumstances such as the present where the legal proceedings are ones which are founded upon an attempt to vindicate the very lawful interests which the recordings were intended to protect, I consider it is appropriate to make an order permitting the use of the recordings in those proceedings – subject, of course, to the recordings being otherwise relevant and admissible.

    Admissibility of the recordings

22. There is no need for me to consider the admissibility of the recordings which I have held the plaintiffs are not entitled to use in these proceedings (recordings #1 - #3 and #13 - #20).  However, I make the following brief observations.

23. I commence by observing that I have found it difficult to determine the relevance and admissibility of some aspects of the recordings as a result of the rather enigmatic nature of the plaintiffs’ case.  I have had to do the best I can in light of my attempt to distill the plaintiffs’ case earlier in these reasons.

24. In my view, recordings #1 - #3 would be relevant and admissible.  While their weight would likely be limited given their timing, I consider that these conversations with Doug and Mick Harrold would be probative of the attitude of these men (who were officers of Glen Carron) to the plaintiffs and hence relevant to the allegations of malice made against them.

25. On the other hand, I am not satisfied that recording #16 would be relevant.  The conversation consisted largely of Mr Wentworth telling Doug Harrold that it was Glen Carron’s last chance to avoid legal proceedings.  While the concluding exchange in relation to “the sawdust job” is capable of reflecting upon Doug Harrold’s attitude to the plaintiffs, I consider the timing of this conversation (being approximately two months after the withdrawal of work) means that it does not have any probative value in relation to the plaintiffs’ pleaded claim.

26. In my view recordings #13 - #15 and #17 - #20 would all be inadmissible.  These are all recordings of conversations with third parties.  The plaintiffs have not articulated any non-hearsay relevance of these conversations.  The only asserted relevance is to refute the allegations made by the defendants.  This would be to rely upon the statements made by the third parties in these conversations as probative of the truth of those statements.  If this is the relevance of the recorded conversations, then they would be rank hearsay and inadmissible.

27. Turning to the recordings which I would permit to be used in these proceedings (recordings #4 - #12), three of them are recordings of conversations with third parties (recordings #5, #8 and #12).  The only articulated relevance of these conversations is reliance upon them as probative of the truth of the statements made by the third parties.  In this relevance, they would be rank hearsay.  I am thus not satisfied that recordings #5, #8 and #12 are admissible.

28. That leaves recordings #4, #6, #7, #9, #10 and #11.  Each of these are recordings with officers of the defendants.  There is no suggestion that any of them were speaking without or beyond authority.  The conversations are relevant to the matters in issue in these proceedings.  They are relevant to establishing the circumstances in which the defendants withdrew the supply of work from the plaintiffs, and the nature and terms of the various allegations made about Mr Wentworth’s driving.  While some of these matters are not in dispute, the pleadings indicate that there are at least some areas where issue has been joined.  The content of these conversations is also relevant to the attitude of Andy Gray, Paul Page and Doug Harrold to the plaintiffs, and hence the allegations of malice on the part of the defendants.

    Conclusion

29. For the reasons set out above, I am satisfied that each of recordings #1 - #3 and #13 - #20 were made in contravention of the relevant legislation and may not be used in these proceedings.  In the case of recordings #4 - #12, I am not satisfied that they were made in contravention of the relevant legislation, and I make an order permitting their use in these proceedings.  Of these recordings, I am satisfied that recordings #4, #6, #7, #9, #10 and #11 are relevant and admissible.  But I am not satisfied that recordings #5, #8 and #12 are admissible and so I exclude those recordings.

30. It follows from these conclusions that Mr Wentworth will not be entitled to give oral evidence of the conversations in respect of which the recordings have been excluded as hearsay (that is, the third party conversations or meetings that are featured in recordings #5, #8, #12 - #15 and #17 - #20).  However, none of the above precludes Mr Wentworth from giving oral evidence about the balance of the conversations, being his conversations with representatives of the defendants (other than the conversation featured in #16, which I have found is irrelevant).

31. I thus make the following rulings:

    1.   Recordings #1 - #3 and #12 - #20 were made unlawfully, and I do not permit their use in these proceedings.

    2.   I give the plaintiffs permission to use recordings #4 - #12 for the purposes of these proceedings.

    3.   Of the recordings in ruling 2:

    3.1Recordings #4, #6, #7, #9, #10 and #11 are relevant and admissible; and

    3.2I exclude recordings #5, #8 and #12 on the basis they are inadmissible hearsay.