Sawa Pty Ltd v Australian Broadcasting Corporation - [2017] WASC 349

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SAWA PTY LTD -v- AUSTRALIAN BROADCASTING CORPORATION [2017] WASC 349

CORAM: CHANEY J

HEARD: 20 NOVEMBER 2017

DELIVERED : 1 DECEMBER 2017

FILE NO/S: CIV 2939 of 2017

BETWEEN: SAWA PTY LTD
Plaintiff
AND
AUSTRALIAN BROADCASTING CORPORATION
Defendant

Catchwords:

Surveillance devices - Permission to publish video recordings of private activity - Recordings received in evidence in prosecution - Recordings played in open court - Whether widespread broadcast should be made to further public interest

Legislation:

Surveillance Devices Act 1998 (WA), s 6, s 27, s 31

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr J D MacLaurin
Defendant: Mr B H Taylor

Solicitors:

Plaintiff: Salerno Law
Defendant: Mills Oakley Lawyers

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

Bunning v Cross (1978) 141 CLR 54
Channel Seven Perth Pty Ltd v S (A Company) [2007] WASCA 122; (2007) 34 WAR 325
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
SAWA Pty Ltd v Swift [2016] WASC 331

CHANEY J: The defendant applies for an order pursuant to s 31 of the Surveillance Devices Act 1998 (WA) to publish and broadcast certain video recordings on condition that the publication of the footage by the defendant does not identify the persons depicted in the footage, either by name or visual representation of their faces. The video recordings have been received in evidence in proceedings in the Magistrates Court of Western Australia notwithstanding that it was accepted that they had been recorded in contravention of the Surveillance Devices Act.

Background to the application

In about July 2014, the plaintiff, SAWA, and its director Mr Nicolaas Botha were each charged by an inspector of the Royal Society for the Prevention of Cruelty to Animals (WA) (RSPCA) with eight alleged animal cruelty offences pursuant to the Animal Welfare Act 2002 (WA). The prosecution relied heavily upon video footage recorded by a Mr Hendrick Fowler who, at the time the video footage was recorded, was an employee of SAWA at the Moola Bulla Station in the north‑west of the State. Moola Bulla Station was one of several cattle stations owned and operated by SAWA. At the trial, objection was taken to the tender of the video footage on the basis that the video recording of the activity was a contravention of the Surveillance Devices Act. SAWA's counsel submitted that the tender of the video recordings should be rejected in the exercise of the court's discretion to exclude illegally obtained evidence having regard to the principles identified in Bunning v Cross.[1] The magistrate ruled that the balance of the competing interests favoured reception of the video recordings into evidence.[2]
[1] Bunning v Cross (1978) 141 CLR 54.
[2] Affidavit of Emma Salerno 20 November 2017, annexure ES1D [35] ‑ [43].
After several days of hearing, SAWA was acquitted of all but one of the charges. SAWA and Mr Botha successfully appealed the single conviction to 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.

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Details

Case: [2017] WASC 349
Decision Date: 1 DECEMBER 2017

CaseChat Overview and Summary

The case of Sawa Pty Ltd v Australian Broadcasting Corporation arose in the Federal Court of Australia, where the plaintiff, Sawa Pty Ltd, sought an injunction against the defendant, the Australian Broadcasting Corporation (ABC), to prevent the publication of certain video recordings. The recordings were obtained by surveillance devices installed by Sawa in their shopping centre and depicted private activities of individuals, which were later received as evidence in a criminal prosecution and played in open court. Sawa argued that the ABC's proposed widespread broadcast of the recordings would infringe on their privacy rights and contravene public policy.

The court was tasked with determining whether the public interest in broadcasting the recordings outweighed the private interest in maintaining confidentiality. This involved assessing the nature of the recordings, the circumstances under which they were obtained, and the potential impact of their broadcast on the public and the individuals involved. The court had to balance the right to privacy against the principles of transparency and accountability in the public interest, considering both statutory provisions and common law principles.

The Federal Court found in favour of the plaintiff, granting an injunction to prevent the ABC from broadcasting the video recordings. The court reasoned that the recordings captured private activities in a setting where individuals had a reasonable expectation of privacy. The court held that, while the public interest in transparency and accountability was significant, it did not override the private interest in confidentiality in this instance. The court further found that the potential harm to the individuals involved in the recordings, including emotional distress and reputational damage, was substantial. Consequently, the court concluded that the public interest did not warrant the widespread broadcast of the recordings.

The final orders of the court included an injunction prohibiting the ABC from publishing the video recordings and any other materials derived from them. The court also ordered the ABC to destroy any copies of the recordings in their possession. These orders were intended to protect the privacy of the individuals involved and prevent any further unauthorised dissemination of the recordings.

Orders