Paull v Queensland All Codes Racing Industry Board

[2017] QCATA 92

CITATION:		Paull v Queensland All Codes Racing Industry Board [2017] QCATA 92
PARTIES:	Gregory Brian Paull (Applicant/Appellant)
v
Queensland All Codes Racing Industry Board (Respondent)
APPLICATION NUMBER:	APL188-16
MATTER TYPE:		Appeals
HEARING DATE:		14 February 2017
HEARD AT:		Brisbane

DECISION OF: Justice Carmody

DELIVERED ON: 9 August 2017

DELIVERED AT: Brisbane

ORDERS MADE:

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1.        Leave to appeal is granted.

2. The appeal is allowed to the extent that the decision of the tribunal made on 12 May 2016 in OCR 155-15 to refuse the application to exclude the listening device evidence is set aside and an order allowing the application is substituted insofar as it records a private conversation contrary to s 43 of the Invasion of Privacy Act 1971 (Qld) including, in particular, the audio at 9:56:24am to 9:58:28am.

CATCHWORDS:

EVIDENCE – INTERLOCUTORY HEARING – ADMISSIBILITY – RECORDING OF PRIVATE CONVERSATION – MANDATORY EXCLUSION – where a conversation of the applicant with other third parties on a greyhound training course was recorded through the use of a listening device in alleged contravention of the Invasion of Privacy Act 1971 (Qld) – where the audio-visual recording was used in disciplinary proceedings brought against the applicant – where the applicant was sanctioned for engaging in live baiting practices and other related contraventions of the Greyhounds Australasia Rules 2015 – where the applicant sought external review of the adverse finding – where the respondent sought to rely on the audio-visual recording in the external review proceedings – where the applicant applied to have the audio component of the recording excluded on the basis of s 46(1) of the Invasion of Privacy Act – whether the recording was of a private conversation in contravention of s 43 of the Invasion of Privacy Act – whether disciplinary proceedings before the tribunal are ‘civil proceedings’ under s 46(1) of the Invasion of Privacy Act – whether s 46(1) of the Invasion of Privacy Act is a ‘rule of evidence’ which may be dispensed with by the tribunal.

EVIDENCE – INTERLOCUTORY HEARING – ADMISSIBILITY – EVIDENCE OBTAINED BY UNLAWFUL CONDUCT – DISCRETIONARY EXCLUSION – where the applicant applied to have the visual component of a recording of a private conversation excluded on the basis that it was obtained through the commission of a crime or civil wrong and the admission of such evidence would be contrary to public policy or unfair – where the tribunal refused to exclude the evidence of the conversation – whether the tribunal is vested with a discretion to exclude admissible evidence in civil proceedings for being forensically unfair or contrary to public policy – whether the tribunal should exclude the visual images of the recording by exercising any such discretion.

Acts Interpretation Act 1954 (Qld), s 14A
Evidence Act 1977(Qld), ss 92, 95, 97

Legislative Standards Act 1992 (Qld), s 4

Queensland Civil and Administrative Tribunals Act 2009 (Qld), Ch 2 Pt 1 Div 3; Pt 2, ss 4, 43, 45, 46