Togher trading as Patrick Togher Artists’ Management v Alexander & Ors [2019] NSWDC 192

Togher trading as Patrick Togher Artists’ Management v Alexander & Ors [2019] NSWDC 192

The sound recording concerned a private conversation for surveillance devices legislation purposes, but Mr Wilson's recording was reasonably necessary to protect his lawful interests in having a record of promises or assurances about payment for his past or future services. The lawful interests exception was made out, so there was no contravention of s 11 of the Surveillance Devices Act 1999 (Vic) or ss 7 or 11 of the Surveillance Devices Act 2007 (NSW), and the recording was not obtained improperly for s 138 purposes. Alternatively, even if there had been a contravention or impropriety, the recording had significant probative value and importance, was not a grave, deliberate or reckless...

Jurisdiction
Australia
Judgment Date
20 May 2019
Procedural Posture
Civil Commercial Dispute Involving a Cross Claim for Breach of Contract / Procedural Ruling on Admissibility of Audio Recording During Trial on the Voir Dire
Outcome
Objection to admissibility dismissed; sound recording admitted.
Legal Topics
['admissibility of Secretly Recorded Conversation' 'evidence Improperly or Illegally Obtained' 'protection of Lawful Interests Exception' 'discretion to Admit Evidence Under S 138 of the Evidence Act 1995 (nsw)' 'exclusion of Evidence Under S 135 of the Evidence Act 1995 (nsw)']
['evidence' 'civil Procedure' 'surveillance Devices' 'contract'] ['admissibility of Secretly Recorded Conversation' 'evidence Improperly or Illegally Obtained' 'protection of Lawful Interests Exception' 'discretion to Admit Evidence Under S 138 of the Evidence Act 1995 (nsw)' 'exclusion of Evidence Under S 135 of the Evidence Act 1995 (nsw)']

Case Brief

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Procedural Posture

Civil Commercial Dispute Involving a Cross Claim for Breach of Contract / Procedural Ruling on Admissibility of Audio Recording During Trial on the Voir Dire

Legal Issues

  1. 1 ['Whether the audio recording of the 3 January 2017 meeting was a recording of a private conversation within surveillance devices legislation.' 'Whether the recording was obtained in contravention of an Australian law or improperly for the purposes of s 138 of the Evidence Act 1995 (NSW).' 'Whether the exception for recording or communication reasonably necessary to protect lawful interests was made out.' 'If the recording was improperly or illegally obtained, whether the desirability of admitting it outweighed the undesirability of admitting it under s 138 of the Evidence Act 1995 (NSW).' 'Whether the sound recording should be excluded under s 135 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The sound recording concerned a private conversation for surveillance devices legislation purposes, but Mr Wilson's recording was reasonably necessary to protect his lawful interests in having a record of promises or assurances about payment for his past or future services. The lawful interests exception was made out, so there was no contravention of s 11 of the Surveillance Devices Act 1999 (Vic) or ss 7 or 11 of the Surveillance Devices Act 2007 (NSW), and the recording was not obtained improperly for s 138 purposes. Alternatively, even if there had been a contravention or impropriety, the recording had significant probative value and importance, was not a grave, deliberate or reckless...

Court Disposition

Objection to admissibility dismissed; sound recording admitted.

Orders

  • ['The defence in s 11(2) of the Surveillance Devices Act 1999 (Vic) or s 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW) is made out.' 'There is no contravention of s 11 of the Surveillance Devices Act 1999 (Vic) or ss 7(1) or 11(1) of the Surveillance Devices Act 2007 (NSW).' 'The sound recording was not...