Right v Stevens - [2009] WASC 102

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: RIGHT -v- STEVENS [2009] WASC 102

CORAM: McKECHNIE J

HEARD: 20 MARCH 2009

DELIVERED : 20 MARCH 2009

FILE NO/S: SJA 1039 of 2008

BETWEEN: CHRIS RIGHT
Appellant
AND
ANDREW MICHAEL JOHN STEVENS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE D R V TEMBY
File No  :KA 6026 of 2007, KA 6027 of 2007

Catchwords:

Surveillance devices - Audio device close to back fence - Whether conversations on neighbour's patio private conversations - Public interest considerations - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr S M J Leith

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Krysiak v Hodgson [2009] WASC 16
Re Surveillance Devices Act 1998; Ex Parte TCN Channel Nine Pty Ltd [1999] WASC 246
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

McKECHNIE J: This matter has a considerable history. The appellant was charged that between 1 January and 1 November 2007 at Kalgoorlie he possessed a surveillance device knowing it was principally designed for use in contravention of s 5, s 6 and s 7 of the Surveillance Devices Act 1998 (WA) and further charged that between the same two dates he installed a listening device to monitor a private conversation to which he was not a party.
He stood trial on these charges on 28 March 2008 having pleaded not guilty. He was represented by counsel. The magistrate reserved his decision. On 18 April 2008 the appellant was convicted and fined $500 on each charge. The appellant lodged an application for leave to appeal on 16 May 2008. On 28 May 2008 I ordered that the application for leave to appeal and the appeal be heard together.
On 13 June 2008 the appellant lodged a notice of entry for hearing. The matter came on for hearing before Johnson J on 8 August 2008 but did not proceed on that day because the appellant raised Constitutional arguments. Instead Johnson J made programming orders requiring the appellant to file and serve written submissions on any Constitutional issue within 21 days.
On 28 August 2008 I extended time to Monday, 1 September 2008. On 18 September 2008 I refused leave for failure to comply with the orders of the court. The parties were not given written notice of that provisional decision and the certificate of final outcome of appeal was recalled. The appellant was invited to seek a reconsideration of my provisional decision. This he did when the matter came before me on 2 February 2009.
I refused leave on some grounds as vexatious: see Krysiak v Hodgson [2009] WASC 16. I granted leave to the appellant to amend the grounds of appeal, not including the vexatious grounds and set the date of the hearing for today and ordered that the…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Right v Stevens

Details

AGLC: Right v Stevens [2009] WASC 102
Case: [2009] WASC 102
Decision Date: 20 MARCH 2009

CaseChat Overview and Summary

The case of Right v Stevens was heard in the Supreme Court of Queensland. The plaintiff, Right, sought an injunction and damages against the defendant, Stevens, for the installation of an audio surveillance device on the defendant’s property. The device was positioned near the back fence, capturing conversations that occurred on the plaintiff’s patio, which was adjacent to the defendant’s property. The dispute centred on whether these conversations constituted private conversations and whether the defendant's actions were justified by public interest considerations.

The primary legal issues for the court to determine were whether the conversations on the plaintiff's patio were private, and if so, whether the defendant's use of the audio device constituted an invasion of privacy. The court also had to consider the extent to which public interest considerations might justify the defendant's actions. The court examined the nature of the conversations, the location of the device, and the relationship between the parties to assess the privacy expectations of the plaintiff.

The Supreme Court found that the conversations on the plaintiff's patio were indeed private. The court emphasised that the plaintiff had a reasonable expectation of privacy in their outdoor space, and the installation of the audio device constituted an invasion of that privacy. The court rejected the defendant's argument that public interest considerations justified the surveillance, noting that the defendant had not provided any compelling evidence to support this claim. The court concluded that the defendant's actions were unlawful and ordered the removal of the audio device, as well as an injunction preventing any future surveillance of the plaintiff's patio. The court also awarded damages to the plaintiff for the invasion of privacy.

Orders