Morton, M. v. Black, D.R. [1987] FCA 211

ail

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. G.345 of 1985

eee es

GENERAL DIVISION

BETWEEN:

MARY MORTON

Applicant

AND:

DONALD ROSS BLACK

Respondent

REASONS FOR JUDGMENT

BURCHETT J.

Mr. Brereton has sought to adduce evidence from the witness Mr. Saunders concerning things said in the course of a telephone conversation when Mr. Saunders was asked by one of the participants in the conversation to listen in on an extension telephone, the evidence suggesting that the other participant in the conversation was unaware of that request and of his compliance with it. Mr. Gullotta has suggested that the action evidenced, and the giving of the evidence, would contravene a

Commonwealth Act, the Telecommunications (Interception) Act,

1979, and also the NSW state legislation being the Listening

Devices Act No. 69 of 1984,

I have already ruled that I think the evidence is

admissible, but Mr. Gullotta having raised the question, the

witness has now claimed privilege on the basis that the answer

2.

might incriminate him. In response to that claim, Mr. Brereton has submitted that I should direct the witness to answer the question on the footing that there is no proper basis for a claim of privilege since there was no infringment of either of the

Acts.

In my opinion, having regard to what was said in the

High Court in Miller v. Miller (1978) 141 C.L.R. 269, the State

Act cannot be regarded as applicable to the events which have been referred to in the evidence. Miller v. Miller was concerned with an earlier version of the Commonwealth Act, but the only ground of distinction suggested is that in sub-section (3) of s.4 of the earlier Act, which is set out at p.274 of the report of Miller's case, there was a provision which does not appear in the present Act. However, I think that provision clearly referred to party lines, and is not applicable to the situation of an extension. I do not think that it affects any of the questions of principle discussed in the judgments in the High Court, nor do I think it affects the applicability of the decision of the High Court to the circumstances of the present case, which are quite

similar to those dealt with in that case.

I therefore think it is clear that for relevant purposes the Commonwealth legislation must be regarded as covering the field. So far as the Commonwealth Act is concerned, it does not appear to me that there is any basis for holding that it has been infringed, and indeed when I drew counsel's attention to the terms of s.6 no submission was directed to showing that those

terms had in fact been infringed. Accordingly it does not seem

we

3.

to me that the prohibition dependent upon the terms of s.6 could

itself be held to have been disobeyed.

In the circumstances I accept Mr. Brereton's submission that there is no propér basis for a claim of privilege and I

direct the witness to answer the question.

I certify that' this and the preceding two (2) pages are a ' true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett.

enn Gil Associate '

Dated: 28 April, 1987.