Waverley Council v Tovir Investments Pty Ltd and Rappaport (No 2) [2013] NSWLEC 21

Waverley Council v Tovir Investments Pty Ltd and Rappaport (No 2) [2013] NSWLEC 21

The Court overruled most objections to evidence on grounds that the evidence of a wider business enterprise, marketing websites (admissible under admissions exception), surveillance summaries, covertly obtained evidence, and police evidence were relevant, admissible under established exceptions to the hearsay rule, or—where potentially obtained improperly—were properly admitted after considering balancing factors under s 138 of the Evidence Act. The business enterprise evidence was relevant context; admissions through websites could be attributed to the respondents; marketing websites were not business records, but were admissible as admissions; surveillance evidence, though obtained...

Jurisdiction
Australia
Judgment Date
27 March 2013
Procedural Posture
Civil Contempt Proceedings (class 4) / Interlocutory Evidentiary Rulings During Hearing of Contempt Charges
Outcome
Objections to evidence largely overruled; evidence admitted as indicated.
Legal Topics
['admissibility of Evidence' 'contempt of Court' 'hearsay Rule' 'business Records Exception' 'admissions Exception' 'illegally or Improperly Obtained Evidence' 'tendency Rule' 'surveillance Evidence' 'powers of Entry' 'use of Marketing Websites as Evidence']
['evidence' 'environmental Law' 'local Government Law' 'civil Procedure'] ['admissibility of Evidence' 'contempt of Court' 'hearsay Rule' 'business Records Exception' 'admissions Exception' 'illegally or Improperly Obtained Evidence' 'tendency Rule' 'surveillance Evidence' 'powers of Entry' 'use of Marketing Websites as Evidence']

Case Brief

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Procedural Posture

Civil Contempt Proceedings (class 4) / Interlocutory Evidentiary Rulings During Hearing of Contempt Charges

Legal Issues

  1. 1 ['Whether evidence of a wider, organised business enterprise is admissible for proving contempt charges as particularised' 'Whether marketing websites are admissible to prove the truth of their content via the admissions or business records exception to hearsay' 'Whether a surveillance report summarising lengthy video is admissible under ss 50, 192 Evidence Act' 'Whether surveillance evidence obtained via covert entry was improperly or illegally obtained and, if so, whether it should be excluded under s 138 Evidence Act' 'Whether police evidence and photographs obtained under a noise abatement warrant exceeded the warrant, and should be excluded']

Ratio Decidendi

The Court overruled most objections to evidence on grounds that the evidence of a wider business enterprise, marketing websites (admissible under admissions exception), surveillance summaries, covertly obtained evidence, and police evidence were relevant, admissible under established exceptions to the hearsay rule, or—where potentially obtained improperly—were properly admitted after considering balancing factors under s 138 of the Evidence Act. The business enterprise evidence was relevant context; admissions through websites could be attributed to the respondents; marketing websites were not business records, but were admissible as admissions; surveillance evidence, though obtained...

Court Disposition

Objections to evidence largely overruled; evidence admitted as indicated.

Orders

  • ['Objection to evidence of a wider business enterprise overruled for relevance.' 'Objections to Bondi International House and Bondi Share House internet marketing websites overruled as to proving truth of representations—admitted as admissions; similar objections to other internet marketing websites upheld.' 'Leave...