De Costi Seafoods (Franchises) Pty Limited and Anor v Wachtenheim and Anor (No 2) [2012] NSWDC 286

De Costi Seafoods (Franchises) Pty Limited and Anor v Wachtenheim and Anor (No 2) [2012] NSWDC 286

The recording was excluded because it was an unauthorised recording of a private conversation in contravention of the Surveillance Devices Act 2007 and was also obtained improperly: Mr Shnider did not consent to the recording or to the loudspeaker circumstances, relevant witnesses were present during the conversation, and counsel and solicitor knew or recklessly disregarded the impropriety. The recording had limited probative value and no direct relevance to a fact in issue, while the contravention and impropriety were grave; therefore the desirability of admission did not outweigh the undesirability of admitting it under s 138 of the Evidence Act 1995.

Jurisdiction
Australia
Judgment Date
08 August 2012
Procedural Posture
Civil Procedural Ruling on Admissibility of Evidence in Cross Claim Proceedings / Application by Cross Claimants to Tender Recording During Trial
Outcome
Evidence should not be admitted and the tender of the recording is rejected.
Legal Topics
['improperly or Illegally Obtained Evidence' 'secretly Recorded Conversation' 'private Conversation' 'loudspeaker Telephone Conversation' 'witness Proofing and Witness Contamination' 'section 138 Discretionary Exclusion']
['evidence' 'civil Procedure' 'surveillance Devices' 'trade Practices'] ['improperly or Illegally Obtained Evidence' 'secretly Recorded Conversation' 'private Conversation' 'loudspeaker Telephone Conversation' 'witness Proofing and Witness Contamination' 'section 138 Discretionary Exclusion']

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Procedural Posture

Civil Procedural Ruling on Admissibility of Evidence in Cross Claim Proceedings / Application by Cross Claimants to Tender Recording During Trial

Legal Issues

  1. 1 ['Whether the recording of the mobile phone conversation was obtained in contravention of an Australian law.' 'Whether the evidence was otherwise obtained improperly or in consequence of an impropriety.' 'Whether any false statement was made in the course of questioning and was likely to cause an admission.' 'Whether the desirability of admitting the recording outweighed the undesirability of admitting evidence obtained improperly or in contravention of Australian law.']

Ratio Decidendi

The recording was excluded because it was an unauthorised recording of a private conversation in contravention of the Surveillance Devices Act 2007 and was also obtained improperly: Mr Shnider did not consent to the recording or to the loudspeaker circumstances, relevant witnesses were present during the conversation, and counsel and solicitor knew or recklessly disregarded the impropriety. The recording had limited probative value and no direct relevance to a fact in issue, while the contravention and impropriety were grave; therefore the desirability of admission did not outweigh the undesirability of admitting it under s 138 of the Evidence Act 1995.

Court Disposition

Evidence should not be admitted and the tender of the recording is rejected.

Orders

  • ['The tender of the recording is rejected.']