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See v Hardman

See v Hardman

Case [2002] NSWSC 234 21 March 2002

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CITATION: SEE v HARDMAN & ANOR [2002] NSWSC 234

CURRENT JURISDICTION: EQUITY

FILE NUMBER(S): SC 3682 of 2001

HEARING DATE(S): 20, 21, 22, 25, 26, 27/3/02

JUDGMENT DATE: 21 March 2002

PARTIES :

Louise Mary See - Plaintiff
William Patrick Hardman - Defendant

JUDGMENT OF: Bryson J at 1

COUNSEL : Oakes SC and Fendekian - Plaintiff
Whittle SC and BJ Burke - defendant

SOLICITORS: Watson & Watson - Plaintiff
HIckson Wisewoulds - Defendant

CATCHWORDS: EVIDENCE - Listening Devices Act - Evidence unlawfully obtained - plaintiff secretly recorded conference with family members and lawyers about circumstances of transactions made by her mother in 5 months before her death which conferred benefits on one grandson - conference was agreed to be without prejudice - plaintiff made recording to enable herself to consider fully and reflect on what was said - later she brought proceedings to remove trustee appointed by mother's will for not investigating circumstances of those transactions - trustee was her brother and father of favoured grandson - at the hearing the defendant waived without prejudice reservation, gave evidence of statements at conference and plaintiff tendered tape and transcript in reply - HELD - unlawful under Listening Devices Act s.5 because not reasonably necessary subs.5(3)(b) - not inadmissible under s.13 because within exception in subs.13(2)(b) conversation came to her knowledge otherwise than through the use of the recording - inadmissible under Evidence Act s.138 because illegal and an impropriety and in application of weighing exercise in subs.138(3).

LEGISLATION CITED: Listening Devices Act 1984 (NSW) s.5, s.13
Evidence Act 1995 (N.S.W.) s.138

CASES CITED: Violi v. Berrivale Orchards Ltd (2000) 99 FCR 580
Scanruby Pty Ltd v. Caltex Petroleum Pty Ltd [2000] NSWIRComm 89
Amalgamated Television Services v. Marsden [2000] NSWCA 167
R v. Eade (2000) 118 A Crim R 449

DECISION: Tender of tape and transcript rejected.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

THURSDAY 21 MARCH 2002

3682/01 LOUISE MARY SEE v WILLIAM PATRICK HARDMAN & ANOR

JUDGMENT

1 HIS HONOUR: I now state my revised reasons for my ruling at t.16.

2 The plaintiff's counsel has read in reply her affidavit of 8 March 2002. The evidence has not yet gone beyond reading affidavits and there has been no cross-examination. The plaintiff in her affidavit produces exhibit LS1, a tape recording, and exhibit LS2, which she says is a fair transcript of material recorded on the tape of events at a meeting which took place on 10 May 2001. The defendant objects to the tender of the tape and transcript.

3 That meeting has been dealt with in several earlier affidavits, and they are the affidavit of the defendant at paragraph 16, the affidavit of Mr Larosa at paragraphs 35, 36 and 37 and the affidavit of Mr Osburg at paragraphs 49, 50 and 51. It would have been possible for the plaintiff herself and Mr Richard Watson her solicitor, whose affidavits were read in chief, to deal with events at the meeting,…

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 See v Hardman

Details

AGLC: See v Hardman [2002] NSWSC 234
Case: [2002] NSWSC 234
Decision Date: 21 March 2002

CaseChat Overview and Summary

See brought proceedings against Hardman, her brother, to remove him as the trustee of a family trust, alleging he had not properly investigated certain transactions made by her mother in the five months before her death, which had conferred benefits on one of her grandsons. Hardman argued that the evidence See sought to rely on in her case was inadmissible as it was unlawfully obtained. The dispute reached the court, which had to determine whether the evidence obtained by See through secret recording of a conference with family members and lawyers was admissible.

The court examined the legal framework governing the admissibility of evidence obtained through secret recordings, particularly under the Listening Devices Act and the Evidence Act. The primary legal issue was whether the evidence obtained by See, who secretly recorded the without prejudice conference, was admissible in court. This hinged on whether the recording was reasonably necessary under the Listening Devices Act and whether it fell within any exceptions to the exclusion of unlawfully obtained evidence under the Evidence Act.

The court held that the evidence was unlawfully obtained under the Listening Devices Act because it was not reasonably necessary. However, it was not excluded under the Evidence Act because the conversation came to See's knowledge otherwise than through the use of the recording, falling within an exception. Nevertheless, the court found the evidence inadmissible under the Evidence Act as it was obtained illegally and was an impropriety, applying the weighing exercise in section 138(3) of the Act. The court determined that the prejudicial effect of admitting the evidence outweighed its probative value.

The court ordered that the evidence obtained by See through the secret recording was inadmissible. This decision underscores the importance of compliance with legal standards when obtaining evidence, even in family disputes, and highlights the stringent application of the exclusionary rules under the Evidence Act.

Orders