Poland v Hedley
[2019] WASC 403
•8 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: POLAND -v- HEDLEY [2019] WASC 403
CORAM: LE MIERE J
HEARD: 26 SEPTEMBER & 2 OCTOBER 2019
DELIVERED : 8 NOVEMBER 2019
FILE NO/S: CIV 1370 of 2019
BETWEEN: GREGORY DAVID POLAND
Plaintiff
AND
KATE HEDLEY
First Defendant
FAIRFAX DIGITAL AUSTRALIA & NEW ZEALAND PTY LTD
Second Defendant
Catchwords:
Evidence - Admissibility - Illegally or improperly obtained evidence - Surveillance devices - Audio recording - Private conversation
Evidence - Admissibility - Audio recording - Chain of custody evidence - True copy - Authenticity, provenance and integrity
Evidence - Admissibility - Inadvertent disclosure of identity of confidential source - Withdrawal of affidavit to remedy inadvertent disclosure - Whether it is unfair to adduce further evidence - Whether statement of defence referring to the contents of a private conversation is knowingly publishing or communicating that private conversation - Protection of lawful interests defence
Media and communications - Offences - Publishing or communicating a private conversation - Exceptions - Qualified privilege - Substantial truth
Legislation:
Evidence Act 1995 (Cth), s 138
Rules of the supreme Court 1971 (WA), O 37 r 6
Surveillance Devices Act 1998 (WA), s 5, s 9, s 26
Result:
Plaintiff's application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M L Bennett & Mr A Tharby |
| First Defendant | : | Mr M C Goldblatt |
| Second Defendant | : | Mr M C Goldblatt |
Solicitors:
| Plaintiff | : | Bennett + Co |
| First Defendant | : | Carmel Galati |
| Second Defendant | : | Carmel Galati |
Case(s) referred to in decision(s):
Batistatos v Roads and Traffic Authority (2006) 226 CLR 256
Chappell v Griffin Coal Mining Company Ltd [2016] FCA 1248
Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 (S)
Metz Holdings Pty Ltd v Simmac Pty Ltd (No 1) (2011) 193 FCR 195
Moti v The Queen (2011) 245 CLR 456
Re Surveillance Devices Act 1998; Ex Parte TCN Channel Nine Pty Ltd [1999] WASC 246
Rogers v The Queen (1994) 181 CLR 251
LE MIERE J:
Summary
The plaintiff was, until 27 February 2019, the Deputy Chair of the Peel Development Commission (PDC). The first defendant (Ms Hedley) is the Deputy Editor of WAtoday, an internet news business conducted by the second defendant (Fairfax Digital). Mr Hondros is a journalist employed by Fairfax Digital as WAtoday's political reporter.
On 27 February 2019 Ms Hedley and Mr Hondros wrote, and the defendants made available for download, on the WAtoday website two versions of an article entitled 'Big Donor Quits Board after Plan to Dump Millions of Tons of Toxic Soil in Peel Region Revealed'. On 28 February 2019, Ms Hedley and Mr Hondros wrote, and the defendants made available for download, on the WAtoday website two versions of an article entitled 'Political Donor: Labor's lobster plan was mine, but Minister botched it'. The plaintiff says that both articles defame him.
Each article is based on things the plaintiff allegedly said at a meeting in January 2019 with a local business owner. In his statement of claim the plaintiff claims aggravated damages. The aggravating conduct pleaded by the plaintiff includes that the defendants published the articles in breach of s 9(1) of the Surveillance Devices Act 1998 (WA) (SD Act), which prohibits the publication or communication of private conversations.
In their amended defence, the defendants admit that they received an audio recording of a conversation which took place at a meeting held on 15 January 2019 between the plaintiff, a local businessman, Aaron Grainger, and two others. The defendants' pleading makes reference to having received an audio recording of the meeting from a confidential source and pleads verbatim quotes of the plaintiff at the meeting.
The plaintiff has applied to strike out paragraphs of the defence on the ground that they rely on illegally obtained evidence and thereby contravene the SD Act which is an abuse of process.
For the reasons which follow all of the words after the words 'the adoption of the Lobster Proposal' in particular 2 subjoined to [20] of the defence will be struck out and the plaintiff's application should be otherwise dismissed.
The meeting
It is common ground that on 15 January 2019, the plaintiff attended a meeting in the restaurant at the Subiaco Hotel with Mr Grainger, his wife and a representative of the Peel Development Group.
The recording
Mr Hondros says that on 25 January 2019, he was contacted by a regular confidential source (Source A) who informed him that a recording of a meeting would be sent to him. The recording arrived shortly afterwards. Mr Hondros played and listened to the recording. Mr Hondros recognised one of the participants to the conversation to be the plaintiff.
On 27 February 2019 Mr Hondros spoke with a second confidential source (Source B). Source B informed Mr Hondros that a meeting took place at the Subiaco Hotel between the plaintiff, Mr Grainger and two others. Source B said that they (Source B) had recorded the conversation at the meeting. Mr Hondros says that if he (Mr Hondros) disclosed the purpose for which the recording was made by Source B it would disclose the identity of Source B.
Correspondence
On 27 February 2019, Ms Hedley sent an email to officers of the PDC asserting that the plaintiff and a PDC officer had met with a Peel business owner on about 15 January to discuss matters relating to toxic soil from the Forrestfield Airport Link, stating that WAtoday had obtained a recording of the meeting, stating things said by the plaintiff at the meeting and stating questions for the plaintiff and PDC.
On 27 February 2019, the plaintiffs' solicitors (Bennett + Co) responded (the first Bennett + Co letter). Bennett + Co stated that if WAtoday holds a recording of a meeting and that recording was obtained in circumstances that breached the SD Act and if WAtoday seeks to use an illegally obtained recording then it is imperative that it does not attempt to summarise or extract unfairly comments made by the plaintiff from the context in which they were made. The letter further stated that the meeting was 'an informal private coffee meeting at the Subiaco Hotel to facilitate a private discussion where [the plaintiff] was giving advice to Mr Grainger and his wife …'
The first article was published on 27 February 2019.
On 28 February 2019, Ms Hedley sent an email to the plaintiff which stated that the plaintiff and a PDC officer had met with a Peel business owner on about 15 January to discuss a deal to dispose of toxic soil from the Forrestfield Airport Link project, that WAtoday has obtained a recording of the meeting and during the meeting the conversation steered towards the State government's recent announcements about Western rock lobster. The email went on to assert things said by the plaintiff during the meeting and posed questions for the plaintiff.
Bennett + Co responded to that email. The letter (the second Bennett + Co letter) says, amongst other things:
Notwithstanding my communication yesterday, [Ms Hedley] repeats the assertion that WAtoday has obtained a recording of a private conversation [the plaintiff] had on January 15.
I pointed out to you yesterday that the recording was conducted in breach of the Surveillance Devices Act 1998.
I draw your attention to s 9 of the Surveillance Devices Act 1998 that prohibits publishing a private conversation or a report or record of a private conversation that has come to your knowledge as a direct or indirect result of the use of a listening device.
The only exception to this is where the publication is with the express or implied consent of each principal party to the private conversation.
You are on notice as from yesterday that [the plaintiff] objects to any publication obtained directly or indirectly or any report or record of a private conversation that he had in January.
Any publication by your newspaper and by Ms Hedley today will be a breach of the Surveillance Devices Act 1998 ...
The second article was published on 28 February 2019.
The pleadings
The plaintiff pleads, and the defendants admit, that the defendants published the first and second articles. The plaintiff says that the first article gives rise to the imputations that the plaintiff:
1.is corrupt in that he arranges secret deals between the State government and private business people without due process;
2.exerts improper political influence over members of the State government; and
3.as deputy chair of the PDC, failed to act in the interests of the Peel region by promoting the dumping of toxic soil within the region.
The plaintiff pleads, and the defendants deny, that the second article gives rise to the imputations that the plaintiff:
1.falsely exaggerates boasting about his political influence; and
2.exerts improper political influence over members of the State government.
The plaintiff pleads at [17] of his statement of claim that the defendants' conduct has been improper, unjustifiable and lacking in bona fides in a manner which has aggravated the hurt, damage and distress suffered by the plaintiff. The matters on which the plaintiff relies as aggravating conduct include the plea at [17.11] that the defendants published the first article, the second article and a further article (which itself is relied upon as aggravating conduct) in breach of s 9(1) of the SD Act. The plaintiff gives particulars of that plea.
The defendants deny that they have engaged in any conduct which has been improper, unjustifiable and lacking in bona fides or that they have acted in a manner which has aggravated any hurt, damage or distress suffered by the plaintiff as pleaded in [17] of the statement of claim. In answer to the plea in [17.11] of the statement of claim the defendants admit that:
1.they received an audio recording of the conversation on 15 January 2019 between the plaintiff, Mr Grainger and others;
2.Ms Hedley expressly referred to the existence of the recording in an email sent on 27 February 2019 to a PDC staff member;
3.the first Bennett + Co letter asserts that the recording was obtained in circumstances that breach the SD Act;
4.a further Bennett + Co letter asserts that the second article purported to publish parts of a private conversation that appears to have come to Fairfax Digital's attention as a result of the use of a listening device;
5.the defendants read the first Bennett + Co letter prior to publication of the articles.
but otherwise do not admit the allegations in [17.11] of the statement of claim.
The defendants plead that each article was published on an occasion of qualified privilege. They give particulars. The particulars refer to the meeting and matters discussed at the meeting. Particular 5(j)(i) says that the defendants received from Confidential Source 1 an audio recording of the meeting. Particular 5(j)(iv) says that on 27 February 2019, Ms Hedley and Mr Hondros had a telephone conversation with Confidential Source 2, a participant in the meeting, who confirmed that the contents of the audio recording accurately reflected the discussion which occurred at the meeting. Particulars 5(j)(v), (vi) and (vii) refer to emails from Ms Hedley containing a summary of some of the statements made by the plaintiff at the meeting. Particular 5(k)(ii) says that the sources of the information the defendants obtained were, by their very nature, authoritative, authentic and accurate. Particular 5(k)(iii) says that the first article fairly and accurately summarised the information in the defendants' possession.
The defendants give similar particulars of their plea at [21] of their defence, that the second article was published on an occasion of qualified privilege.
The defendants plead at [20] of their defence that if the second article carried the meaning pleaded in [15.1] of the statement of claim (that the plaintiff falsely exaggerates boasting about his political influence), and that meaning is defamatory of the plaintiff, then the meaning is substantially true. The defendants give particulars. The particulars include quoted statements of the plaintiff at the meeting.
Paragraph 22 of the amended defence pleads that the defendants rely in mitigation of damages on the truth or substantial truth of the meaning pleaded at 15.1 of the statement of claim and the facts, matters and circumstances proven in evidence in support of the defences pleaded in the defence.
The plaintiff's contentions
The plaintiff contends that in their amended defence, the defendants seek to rely on illegally obtained evidence to support defences of justification and qualified privilege and thereby contravene the SD Act. The plaintiff says this is an abuse of process. There are at least three strands to the plaintiff's argument.
First, the plaintiff says that in making statements in their amended defence which refer to the conversation between the meeting participants, the defendants knowingly publish or communicate a private conversation or a report or record of a private conversation that has come to their knowledge as a direct or indirect result of the use of a listening device contrary to s 9(1) of the SD Act. The plaintiff says that is an abuse of the process of the court.
Secondly, the plaintiff says that in their defence the defendants refer to emails sent by the defendants to the plaintiff, the PDC, an advisor to the Minister for Regional Development, Agriculture and Food and Ports and an advisor to the Minister for Transport and Planning containing a summary of the statements made by the plaintiff at the meeting. The plaintiff says that the communication of those statements was in breach of s 9(1) of the SD Act and it is an abuse of the process of the court for the defendants to plead and rely upon those communications in their defence.
Thirdly, the plaintiff says that the recording was obtained from the use of a listening device to record a private conversation in contravention of s 5(1) of the SD Act, and that evidence of the recorded conversation is illegally obtained evidence which would be inadmissible at trial and therefore its inclusion in the amended defence is embarrassing, prejudicial and an abuse of the court's process.
The recording was obtained illegally
I will first consider whether or not the recording was illegally obtained, that is in breach of s 5(1) of the SD Act.
Section 5 of the SD Act provides that, subject to s (2) and (3), a person shall not, amongst other things, use a listening device to record a private conversation to which that person is a party. The only arguably relevant provision in s 5(2) is s 5(2)(d) which provides that s 5(1) does not apply to the use of a listening device in accordance with pt 5. Part 5 includes s 26(1) which provides that a person who is a party to a private conversation may use a listening device to record the private conversation if a principal party to the private conversation consents expressly or impliedly to that use and there are reasonable grounds for believing that the use of the listening device is in the public interest. Section 24 defines public interest to include the interests of national security, public safety, the economic wellbeing of Australia, the protection of public health and morals and the protection of the rights and freedoms of citizens.
I find on the evidence before me, and for the purposes of this application, that the discussion between the people at the meeting was a private conversation.
The term 'private conversation' is defined in s 3 as:
Any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard.
The test under the first part of the definition has been held by Owen J to be primarily subjective, that is, the person must actually hold that desire, although the circumstances must also be such as to make the indication of desire 'reasonable'. Thus, if the circumstances reasonably indicate that any one or more, but not necessarily all, of the parties desired that the incident be observed or heard only by the principal parties, that is enough to satisfy the first part of the definition.[1] Owen J further held that the use of the word 'parties' in the exclusionary provision does not mean that the definition cannot be satisfied, unless all of the parties ought reasonably to have intended the incident to be restricted to themselves. It may well be the case that one of the parties (being the one who is carrying the device) knows full well that the incident is being observed or listened to by third parties. The term 'parties' in the exclusionary provision refers primarily to the person who comes within the phrase 'any party' in the earlier part of the definition, but may extend to other parties as well. The words of the exclusionary provision reinforce the need for objective, as well as subjective, considerations in drawing the appropriate inferences.[2] The exclusionary provision is of somewhat limited operation.[3]
[1] Re Surveillance Devices Act 1998; Ex Parte TCN Channel Nine Pty Ltd [1999] WASC 246 [19] (Owen J), approved by McKerracher J in Chappell v Griffin Coal Mining Company Ltd [2016] FCA 1248 [38].
[2] Ex parte TCN Channel Nine Pty Ltd [19].
[3] Ex parte TCN Channel Nine Pty Ltd [20].
The conversation between the meeting participants occurred in a restaurant which is a public place because the public is invited into the restaurant. The parties were the only people seated at their table. When people are seated at a table in a restaurant conversing amongst themselves they do not expect their conversation to be listened to by other patrons or staff.
The plaintiff says that there was only one patron in the restaurant at the time of the meeting, that that person was already at the restaurant at the time the PDC officer and the plaintiff arrived, and that person appeared to be using a laptop. The plaintiff and the PDC officer sat down at a table that was near the person using the laptop, but the plaintiff decided to move to a table approximately five metres away because he did not want to be near the person using the laptop.
Those circumstances taken together indicate objectively that the plaintiff desired the conversation to be listened to only by the meeting participants. The plaintiff subjectively held that desire.
People seated at a table in a restaurant or café do not ordinarily expect their conversation to be overheard, notwithstanding it might be possible for other patrons or staff with sufficiently acute hearing and appropriately positioned to hear part of the conversation. It is common for people to conduct business meetings, job interviews and other conversations which they wish to be private in a restaurant or café. They expect other patrons and staff not to eavesdrop on their conversation. The plaintiff was not cross‑examined. There was no evidence to contradict his evidence of the objective circumstances of the conversation. The objective circumstances of the conversation establish that the conversation was a private conversation.
The defendants read an affidavit sworn by Mr Hondros on 27 September 2019. In that affidavit Mr Hondros swore that on or about 25 January 2019, he was contacted by a regular source (Source A) who informed him that a recording of a meeting (recording) would be sent to him. In [6] of his affidavit, Mr Hondros says that the recording arrived shortly afterwards and he played and listened to the recording. In [6] to [11] Mr Hondros exhibits a USB which he says is the recording and makes observations about what he heard when he played and listened to the recording and conclusions he draws from those sounds.
I did not receive the USB in evidence. There is no, or no sufficient, evidence of the authenticity, provenance and integrity of the digital file on the USB said to be the recording. Although his affidavit states that the recording is an exhibit to the affidavit, counsel for the defendants informed the court that the USB is not what was received by Mr Hondros after his conversation with Source A. Counsel informed the court that Mr Hondros had received an email containing a recorded conversation and the USB contains a copy of the recorded conversation. The USB contains a digital file. There is no evidence how the original recording was made. There is no sufficient chain of custody evidence. There is no evidence how the original digital file, assuming the original recording was a digital recording, was transferred onto the email received by Mr Hondros and then directly or indirectly from the email to the USB exhibited to this affidavit. There is no evidence that the sounds on the original recording have not been altered in the copying process or processes.
This is not mere quibbling. The defendants' solicitor swore an affidavit on 20 September 2019, which attached a USB which she said was a true copy of the recording sent to her by Mr Hondros. The defendants' solicitor provided the plaintiff with a copy of that recording. The plaintiff says that at about five minutes into the recording he could hear background sounds that appeared to be typing on a keyboard. The defendants informed the court that upon receipt of a copy of the recording from Mr Hondros, which he had emailed to the solicitor, the solicitor re‑recorded the recording using her mobile phone while sitting in her office and, upon listening to the copy of the recording, it appeared that some of the solicitor's background office noise had intruded onto the recording.
The USB was tendered for the purpose of establishing that the conversation between the meeting participants was carried out in circumstances that indicated that the parties to the conversation did not desire it to be listened to only by themselves, and in circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard. In the absence of all information on the digital file's travels from its original creation to the version on the exhibited USB, the court cannot be satisfied of the authenticity of the noise of activity in the background in the vicinity of the meeting or of the volume level of the voices of the participants at the meeting. The USB is inadmissible.
Furthermore, in the absence of evidence where the meeting participants were seated, where the recording device was located relative to the meeting participants, the sensitivity of the recording device (which would require expert evidence), and the layout of the restaurant, I could form no opinion where other people were located in relation to the meeting participants. In the absence of evidence about the location of the listening device relative to the meeting participants, the location of other people relative to the meeting participants, and the recording device and the sensitivity of the recording device (which would require expert evidence), I could form no opinion whether the volume of the voices of the meeting participants indicates that the plaintiff did not desire that the conversation be listened to only by the meeting participants, or that the meeting participants ought reasonably to have expected that their conversation may be overheard. The recording on its own, in the absence of evidence of the matters I have referred to, is irrelevant to the matters in issue on this application.
I declined to admit into evidence Mr Hondros' observations for the following reasons. Mr Hondros' observations are merely his opinion of what the recording discloses. He has no relevant expertise. The evidence is not expert evidence. The evidence is inadmissible opinion.
In [12] to [14] of his affidavit Mr Hondros says that on or around 27 February 2019, he spoke with a second confidential source (Source B) who informed him (Mr Hondros) that Source B attended the meeting at the Subiaco Hotel and recorded the conversation at the meeting. At [15] of his affidavit, Mr Hondros says that he spoke again with Source B on 27 September 2019 and asked Source B questions regarding the restaurant section of the Subiaco Hotel where the meeting with the plaintiff took place, and Source B informed Mr Hondros of matters set out in [15] of the affidavit relating to the number of patrons and staff in the restaurant, where they were located and the volume of the plaintiff's speech during the meeting. I declined to receive that paragraph into evidence.
First, it was unfair having regard to the circumstances in which the affidavit was filed. The hearing of this application commenced on 26 September 2019. The defendants sought to rely upon an affidavit sworn by Mr Hondros on 25 September. In the course of the hearing it appeared that Mr Hondros had made an inadvertent disclosure relating to the identity of Source B. The court permitted the defendants to withdraw the affidavit from evidence and, if they saw fit, to file a further affidavit from Mr Hondros which fixed up that inadvertent disclosure. The court did not give leave for the defendants to adduce further evidence concerning the conversation at the Subiaco Hotel restaurant and, in the circumstances, it would be unfair to allow the defendants to adduce that further evidence.
Secondly, the evidence is hearsay evidence. The Rules of the Supreme Court 1971 (WA) (RSC) O 37 r 6 permits an affidavit to contain statements of information or belief if the affidavit is made for the purposes of interlocutory proceedings, but RSC O 37 r 6(3A) provides that an affidavit containing statements of information or belief must set out the sources or grounds of that information or belief, unless relevantly the court has made an order permitting the affidavit to omit the sources or grounds. The affidavit does not set out the sources or grounds of the information, the court has not made an order permitting the affidavit to omit the sources or grounds and, in the circumstances in which leave was granted to file the affidavit, it would be unfair for the court to give such leave.
I find, for the purposes of this application and on the evidence currently before the court, that the conversation between the meeting participants was a private conversation.
There is no evidence of the purpose for which the recording was made by Source B (referred to in the defence as Confidential Source 2). Accordingly, there is no evidence that there are reasonable grounds for believing that the use of a listening device is in the public interest. Section 26(1) of the SD Act does not apply.
For the purpose of this application, and on the evidence currently before the court, I find that the recording was made in breach of s 5(1) of the SD Act. If the defendants tender the recording at the trial, the court will have to determine whether or not the recording was made contrary to s 5(1) of the SD Act on the evidence that is then before the court.
The defence does not contravene s 9(1) of the SD Act
The plaintiff says that by pleading certain paragraphs of their defence the defendants have contravened s 9(1) of the SD Act.
Section 9(1) of the SD Act provides that, subject to s 9(2), a person shall not, amongst other things, knowingly publish or communicate a private conversation, or a report or record of a private conversation that has come to the person's knowledge as a direct or indirect result of the use of a listening device. Section 9(2) provides that s 9(1) does not apply in the circumstances there set out. I will first consider whether or not any of the challenged paragraphs of the defence fall within s 9(1) of the SD Act, leaving aside the exceptions in s 9(2).
The plaintiff applies to strike out the following paragraphs of the amended defence:
(1)paragraph 17(k);
(2)paragraphs 19 and 21;
(3)in the alternative to (2), particulars 1(c), (f) and (h), 5(a), (c), (f), (g), (h), (i), (j) and (k) subjoined to [19] and [21];
(4)paragraphs 20 and 22.
I find that the following paragraphs of the defence or particulars subjoined to [19] and [21] of the defence contain the conversation between the meeting participants, or a report or record of the conversation that came to the defendants' knowledge as a direct or indirect result of the use of a listening device:
(1)particulars 1(c) and (h) and 5(j)(i) and (iv) subjoined to [19] of the defence;
(2)particulars 1(d) and (e) and 5(j)(iii) and (iv) subjoined to [21]; and
(3)particular 2 of the particulars subjoined to [20] of the defence.
In the course of the hearing of the application the defendants withdrew that part of particular 2 subjoined to [20] of their defence, which purports to set out verbatim extracts from the conversation. Accordingly, all of the words after the words 'the adoption of the Lobster Proposal' in particular 2 will be struck out.
I will now consider whether the defendants have contravened s 9(1) of the SD Act by pleading those paragraphs of the defence, or particulars, which I have held communicate the meeting conversation, or a report or record of the conversation that has come to the defendants' knowledge as a direct or indirect result of the use of a listening device.
Section 9(1) of the SD Act prohibits a person 'knowingly' publishing or communicating the private conversation, report or record referred to.
The defendants submitted that to 'knowingly' publish or communicate a private conversation, or a report or record of a private conversation contrary to s 9(1) of the SD Act requires that the person know that the conversation was a private conversation. The plaintiff submitted that 'knowingly' refers only to the act of publishing or communicating the conversation. The parties advanced little argument in support of their rival contentions.
Section 9(1) creates an offence. The requisite mental element is that the offender have knowledge of the essential matters which make the offence, that is relevantly the matters that make the conversation a private conversation. It is not necessary that the person should have turned his mind to the question and formed the opinion that the conversation was a private conversation.
Ms Hedley was the Deputy Editor of WAtoday. Prior to the publication of the first article, in an email to the PDC, Ms Hedley said that the plaintiff and a PDC officer met with a Peel business owner about 15 January 2019 to discuss the matters set out and that WAtoday had obtained a recording of the meeting. The plaintiff's solicitor responded by letter of 27 January 2019 stating that if WAtoday holds a recording of a meeting, and that recording was obtained in circumstances that breached the SD Act and seeks to use an illegally obtained recording, then it should not attempt to summarise or extract unfairly comments made by the plaintiff.
Prior to the publication of the second article Ms Hedley again wrote referring to the meeting and that WAtoday had obtained a recording of the meeting. The plaintiff's solicitor responded saying:
I pointed out to you yesterday that the recording was conducted in breach of the Surveillance Devices Act 1998. I draw your attention to s 9 of the Surveillance Devices Act 1998 that prohibits publishing a private conversation or a report or record of a private conversation that has come to your knowledge as a direct or indirect result of the use of a listening device … Any publication by your newspaper and by Ms Hedley today will be a breach of the Surveillance Devices Act 1998.
That material gives rise to the inference that Ms Hedley knew, prior to the publication of each article, that a conversation between the meeting participants was a private conversation. Ms Hedley has not given evidence of her knowledge of the circumstances of the conversation or of any matter which might rebut the inference to be drawn from the correspondence referred to, that Ms Hedley knew the conversation between the meeting participants was a private conversation, or at least the facts and circumstances which constitute it a private conversation. On the evidence before the court, Ms Hedley, and through her Fairfax Digital knew that the conversation was a private conversation.
Subsection 9(2)(a)(ix) of the SD Act provides that s 9(1) does not apply where the publication or communication is made in the course of any legal proceedings. Section 9(3) provides that s 9(2) only provides a defence if the publication or communication falls within one of subpars 9(3)(a) to (d). The defendants say that subpars 9(3)(a)(i) and 9(3)(a)(iii) apply. Section 9(3)(a)(i) provides that s 9(2) provides a defence if the publication or communication is not more than is reasonably necessary in the public interest. Section 9(3)(a)(iii) provides that s 9(2) provides a defence if the publication or communication is not more than is reasonably necessary for the protection of the lawful interests of the person making the publication or communication.
In Metz Holdings Pty Ltd v Simmac Pty Ltd (No 1)[4] Barker J considered the exception in SD Act s 5(3)(d) which provides relevantly that s 5(1)(b) does not apply to the use of a listening device by a person who is a party to a private conversation, if a principal party to the private conversation consents expressly or impliedly to that use and the use 'is reasonably necessary for the protection of the lawful interests of that principal party'. In that case the applicants tendered a written statement of the second applicant which included a computer disc containing recordings he had made, by mobile phone, of conversations involving himself and others, including the second respondent. The first and second respondents objected to the tender. They contended that s 138(1) of the Evidence Act 1995 (Cth) applied and the court should refuse to exercise its discretion under that section to admit the evidence. The respondents contended that the initial recording was illegally made and could not be published, having regard to the terms of the SD Act. The applicants denied the SD Act had been contravened.
[4] Metz Holdings Pty Ltd v Simmac Pty Ltd (No 1) (2011) 193 FCR 195.
Justice Barker held that there was no contravention of the SD Act. His Honour said:
In this particular proceeding, the court pursuant to its case management powers required, prior to the trial of this proceeding, and for the purpose of managing the proceeding more efficiently and effectively, that witness statements of proposed witnesses be exchanged. In the course of complying with this requirement the witness statement of the second respondent was filed, in which notice of his intention to rely upon the recordings that he made came to light. In my view, that disclosure or communication of the recordings or their contents is expressly countenanced by s 9(2)(a)(ix) of the SD Act.
Similarly, the tender of the disc containing the recordings and the reliance on its content at trial, is also a publication made in the course of a legal proceeding as that expression is used in s 9(2)(a)(ix) of the SD Act.[5]
[5] Metz Holdings Pty Ltd v Simmac Pty Ltd (No 1) [20] ‑ [21].
Justice Barker then said that the exceptions created by SD Act s 9(2) are not only narrowly confined themselves, but are further narrowed by the requirement in s 9(3), that s 9(2) only provides a defence if the publication or communication satisfies one or other of the further requirements in s 9(3)(a) ‑ (d). His Honour found that the requirement in s 9(3)(a)(iii) was met:
The circumstances of this case are such that on the evidence before me a dispute ensued at material times between the applicants and the first and second respondents concerning the legal obligations of the first and second respondents towards the applicants. I have little difficulty in finding that when the second applicant made the recordings of the conversations with the second respondent, not only did he do so to protect the lawful interests of the second applicant and the first applicant, as noted above, but that the further publication of the contents of the recordings in this proceeding is to the same end, namely, in order to protect their lawful interests arising under and in relation to the sale agreement.[6]
[6] Metz Holdings Pty Ltd v Simmac Pty Ltd (No 1) [24].
I find that the publication or communication of the conversation of the meeting participants, or a report or record of it in the defendants' defence in this proceeding, is for the protection of the lawful interests of the defendants arising from their publication of the first and second articles. The defendants say that the articles were published on occasions of qualified privilege, and that one of the imputations alleged to arise from the second article is true, and therefore they are not liable to the plaintiff for any actionable defamation. The publication of the conversation or a report or record of it in the defendants' amended defence is a publication made in the course of legal proceedings, and is not more than is reasonably necessary for the protection of the lawful interests of the defendants. Necessary in this context does not mean essential or indispensable but reasonably appropriate and adapted.[7]
[7] Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 (S) [16] (Allanson J).
Accordingly, s 9(2)(a)(ix) provides a defence and the defendants' publication of the conversation or a report or record of it in their amended defence is not an offence against s 9(1) of the SD Act.
Pleading in defence is not an abuse of process
The plaintiff submits that the recording of the conversation was illegally obtained and would be inadmissible at trial and therefore its inclusion in the amended defence is embarrassing, prejudicial and an abuse of the court's process.
Improperly or illegally obtained evidence is not inadmissible at trial. In Georgiou Building Pty Ltd v Perrinepod Pty Ltd Allanson J allowed into evidence at trial a CD containing recordings of meetings which his Honour had found were made in breach of the SD Act. His Honour explained:
Improperly or illegally obtained evidence is admissible. But there is support for the proposition that there is a discretion to exclude evidence obtained illegally, even in a civil trial: Miller v Miller (1978) 141 CLR 269, 277; Pearce v Button (1985) 8 FCR 388, 402; Sheldon v Sun Alliance Ltd (1988) 50 SASR 236, 247; Southern Equities Corp Ltd (in liq) v Bond (No 2) [2001] SASC 70; (2001) 78 SASR 554 [109] - 111]. It is not necessary, for present purposes, to decide whether that discretion is confined to evidence obtained by 'serious and deliberate infringements of the legal rights of another' (see Sheldon v Sun Alliance; The Duke Group Ltd (In liq) v Pilmer (1994) 63 SASR 364, 377 ‑ 378), although the seriousness of the infringement is a matter relevant to the exercise of the discretion.
The discretion will be exercised having regard to the all of the circumstances, including the underlying policies which call for the discretion's existence, the circumstances in which the evidence was obtained, and the potential prejudice to any party if the evidence is admitted or rejected.
The first factor for consideration in the present case is the Surveillance Devices Act itself, and whether it imposes any limitation on the use of material obtained in breach of its provisions. Under s 9, a person shall not knowingly publish or communicate a private conversation, or a report or record of a private conversation that came to that person's knowledge as a direct or indirect result of the use of a listening device. That prohibition, however, does not apply where the publication or communication is made in the course of any legal proceedings: s 9(2)(ix).
Second, and quite independently of s 9, it would be open to Mr Perrine to give his account of what occurred at the meeting. No illegality taints that knowledge. In the circumstances, the availability of a recording goes to the best evidence that can be put before the court, and not to whether evidence of those facts can be given at all.
Third, as it is stated in Cross on Evidence [27270]:
'Illegalities by persons who have no role in enforcing the laws have been said not to attract the discretion to exclude.'
Cross refers to Barker v The Queen (1994) 54 FCR 451, where the Full Court of the Federal Court found that no occasion arose for the exercise of the discretionary power to exclude from evidence a recording that was made by an accomplice, that was later made available to the police, but where the police and prosecution authorities had no hand in making it (478 - 479).
Fourth, on the evidence before me, the recording was done in a meeting by a device which was placed on the table. Mr Perrine has referred to it in his affidavit, apparently unaware that he may have been in breach of the Act. While I accept that the other parties to the conversation were not aware and did not consent to it being recorded, the conduct of Mr Perrine was not such an abuse as to require the protection of the processes of the court by excluding evidence of that conversation from admission in these proceedings.[8]
[8] Georgiou Building Pty Ltd v Perrinepod Pty Ltd [20] ‑ [26].
Whether or not the recording will, or may, be admitted in evidence at trial is a matter to be determined at trial. It is a matter for the discretion of the trial judge.
It is not an abuse of the process of the court for the defendants to refer to the illegally obtained recording, or information derived from it, in their amended defence.
The High Court has stated on more than one occasion that the categories of abuse of process are not closed but many such cases can be identified as falling into one of three categories:
(1)the court's procedures are invoked for an illegitimate purpose;
(2)the use of the court's procedures is unjustifiably oppressive to one of the parties; or
(3)the use of the court's procedures would bring the administration of justice into disrepute.[9]
[9] Rogers v The Queen (1994) 181 CLR 251, 286; Batistatos v Roads and Traffic Authority (2006) 226 CLR 256, 267; Moti v The Queen (2011) 245 CLR 456, 463 ‑ 464.
Whether or not allowing the defendants to plead the meeting participants' conversation or a report or record of it, would bring the administration of justice into disrepute requires a consideration of all of the circumstances.
The circumstances of this case are such that allowing the pleading to stand will not bring the administration of justice into disrepute. First, s 9(2)(ix) of the SD Act expressly provides that, if as here, one of the matters under s 9(3) is established, it is not an offence under s 9(1) to publish a private conversation otherwise prohibited by s 9(1) where the publication is made in the course of legal proceedings.
Secondly, the defendants were not involved in using a listening device to make the recording in contravention of s 5(1) of the SD Act.
Thirdly, the defendants are at liberty to obtain the contents of the conversation from one of the participants at the meeting. The recording provides the best evidence of the conversation.
Fourthly, it does not follow from allowing the pleading to stand that the recording will be admitted in evidence at trial. That is a matter to be decided at trial on the evidence then before the court.
The paragraphs of the amended defence objected to by the plaintiff are not likely to prejudice, embarrass or delay the fair trial of the action for the same reasons.
Pleading the emails
The plaintiff says that the emails referred to in particulars which refer to emails sent by Ms Hedley to various people concerning the conversation at the meeting were sent in contravention of s 9(1) of the SD Act, in that by sending the emails Ms Hedley knowingly published or communicated the private conversation at the meeting.
If, assuming for the purposes of this application, Ms Hedley contravened s 9(1) of the SD Act by sending the emails, that does not make them inadmissible at trial. As set out above improperly or illegally obtained evidence is admissible and any discretion to exclude evidence obtained illegally will be exercised having regard to all of the circumstances. In the circumstances of this case pleading the emails does not bring the administration of justice into disrepute.
Conclusion
All of the words after the words 'the adoption of the Lobster Proposal' in particular 2 subjoined to [20] of the defence will be struck out. The plaintiff's application should otherwise be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MS
Associate to the Honourable Justice Le Miere8 NOVEMBER 2019
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