Lehrmann v Network Ten Pty Limited (Covert Recording) [2023] FCA 1586

Lehrmann v Network Ten Pty Limited (Covert Recording) [2023] FCA 1586

Section 10 of the Listening Devices Act 1992 (ACT) purports to regulate admissibility of evidence and therefore the exercise of federal jurisdiction. It was not picked up by s 79 of the Judiciary Act 1903 (Cth) because s 56(1) of the Evidence Act 1995 (Cth), read with s 55, otherwise provides that relevant evidence is admissible. As there was no dispute that the recordings were relevant, the recordings were admissible, subject to a s 136 limitation preventing representations by Senator Cash and Mr Try from being used as evidence of the underlying truth of those representations.

Jurisdiction
Australia
Judgment Date
12 December 2023
Procedural Posture
Evidence Ruling / Ruling During Hearing on Admissibility and Permitted Use of Covert Recordings
Outcome
Covert recordings admitted into evidence subject to a limitation on use under s 136 of the Evidence Act 1995 (Cth).
Legal Topics
['admissibility of Covert Recordings' 'whether Territory Evidence Law Is Picked Up in Federal Jurisdiction' 'section 79 of the Judiciary Act 1903 (cth)' 'relevance Under the Evidence Act 1995 (cth)' 'limitation on Use of Evidence Under S 136 of the Evidence Act 1995 (cth)']
['evidence' 'federal Jurisdiction'] ['admissibility of Covert Recordings' 'whether Territory Evidence Law Is Picked Up in Federal Jurisdiction' 'section 79 of the Judiciary Act 1903 (cth)' 'relevance Under the Evidence Act 1995 (cth)' 'limitation on Use of Evidence Under S 136 of the Evidence Act 1995 (cth)']

Case Brief

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Procedural Posture

Evidence Ruling / Ruling During Hearing on Admissibility and Permitted Use of Covert Recordings

Legal Issues

  1. 1 ['Whether s 10 of the Listening Devices Act 1992 (ACT) was picked up as surrogate federal law by s 79 of the Judiciary Act 1903 (Cth).' 'Whether the covert recordings of conversations made by Ms Brittany Higgins were admissible in evidence.' 'Whether the use of representations by Senator Michaelia Cash and Mr Daniel Try in the recordings should be limited under s 136 of the Evidence Act 1995 (Cth).']

Ratio Decidendi

Section 10 of the Listening Devices Act 1992 (ACT) purports to regulate admissibility of evidence and therefore the exercise of federal jurisdiction. It was not picked up by s 79 of the Judiciary Act 1903 (Cth) because s 56(1) of the Evidence Act 1995 (Cth), read with s 55, otherwise provides that relevant evidence is admissible. As there was no dispute that the recordings were relevant, the recordings were admissible, subject to a s 136 limitation preventing representations by Senator Cash and Mr Try from being used as evidence of the underlying truth of those representations.

Court Disposition

Covert recordings admitted into evidence subject to a limitation on use under s 136 of the Evidence Act 1995 (Cth).

Orders

  • ['The covert recordings made by Ms Brittany Higgins of the conversation between Ms Higgins and Mr Daniel Try on 28 January 2021 be admitted into evidence.' 'The covert recordings made by Ms Brittany Higgins of the conversation between Senator Michaelia Cash, Ms Higgins and Mr Try on 5 February 2021 be admitted into...