Australasian Performing Right Association Ltd v Sweat 1000 Bondi Junction Pty Ltd [2025] FedCFamC2G 2120

SWEAT 1000 PRAHRAN PTY LIMITED (ACN 654 229 491)

SWEAT 1000 CARINGBAH PTY LIMITED (ACN 654 011 453) (Third Respondent and others named in the Schedule)

1. The application by the fifth respondent for leave to withdraw the admission made in paragraph 1 of the defence to the statement of claim filed on 23 October 2024 is dismissed.
2. The objection to the admissibility of exhibits DQ-1, ZD-1, DF-1 and DF-2 is overruled.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. Counsel for the applicant, before going into evidence, referred to what was submitted to be a clear admission made in the defence to the statement claim as originally filed. The admission relates to the allegation made in paragraph 6(b) of the statement of claim, which alleges that the fifth respondent, Mr Turner, is and was at all material times responsible for the day-to-day management of the first, second, third and fourth respondents. That allegation was admitted in paragraph 1 of the defence which was filed on 6 March 2024.
2. The allegation made in paragraph 6 of the statement of claim as originally filed is repeated in the amended statement of claim. A defence was filed to the amended statement of claim, but purportedly only on behalf of Sweat 1000 Coogee Pty Limited, which is the fourth respondent, and on behalf of Mr Turner. In that amended defence, Mr Turner alleges that:

[Mr Turner] was not and is not "responsible for the day-to-day management". He was the director but was not involved in the day-to-day management, he never drew a salary or fee for such and had a separate full-time job elsewhere in the automotive industry.

1. That allegation is in answer to paragraph 22(a) of the amendment statement of claim and pertains to companies identified in that paragraph. In his opening written submissions, Mr Turner applied to resile from the admissions he made to paragraph 6(b) of the original statement of claim, and he has formally applied to withdraw those admissions. It is unclear on what basis Mr Turner originally admitted those matters. From the bar table he informed me that he only spent two to three hours a week in the management of those companies, although he did accept that, as a sole director, he was responsible at least for the overall direction of the company.
2. The Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) do not contain a specific rule dealing with the withdrawal of admissions made in a pleading. Under r 1.05 of those rules, however, the rule provided for in the Federal Court Rules 2011 (Cth), namely r 26.11, which provides for the withdrawal of admissions, applies to proceedings in this Court. Counsel for the applicant drew my attention to the judgment of Stewart J in Selvaratnam v St George- A Division of Westpac Banking Corporation (No 2) [2021] FCA 486, where his Honour sets out the principles that are relevant to the exercise of the power to permit a party to withdraw an admission.
3. His Honour noted that the Court has a broad discretion to weigh up all matters, with the overall object being to ensure that there be a fair trial. The Court will require an explanation for the making of the admission which is now being sought to be withdrawn. The explanation must be a sensible one, based on evidence of a solid and substantial character. His Honour further said that the object of the Court is to decide the rights of the parties, not to punish them for mistakes they make in the conduct of their cases. If the mistake is not fraudulent or intended to overreach; can be corrected without injustice to the other party; and if not corrected will not lead to a decision on the real matters in controversy; the mistake should generally be corrected. The overriding consideration is the interests of justice.
4. Although Mr Turner sought to explain why he made the admission, it was relatively unclear to me the basis on which he made the admission. I think it can be inferred, however, that Mr Turner made the admission because he is a sole director of the company, and in that sense, he does have overall responsibility for it. The circumstance that has given him rise to question that admission are matters which go to the degree to which Mr Turner can be said to have participated in the management of the companies of which he was a sole director. That, however, is a question which will not be determined by the form of the pleading.
5. What is alleged in paragraph 6 of the statement of claim is a relatively elastic concept, and that is a matter which in all likelihood was intended to be the subject of cross-examination. It is unlikely that the issue to which that allegation is material will be determined by that allegation having been admitted. That consideration points both ways, both to granting permission to withdraw the admission, but it also points to it not being withdrawn. I consider that on balance, given that there was a foundation for the admission to be made, and given its elastic character in terms of what it conveys, I am satisfied that it is not in the interests of justice to permit the withdrawal of the admission, but for it to remain. It will be an issue which will be given content in the course of the cross-examination.

1. Mr Turner objects to the admissibility of a number of recordings which are exhibited to affidavits that I will identify in a moment. The first exhibit to which exception is taken is exhibit ZD-1 to the affidavit of Mr Duczynski. In his affidavit, Mr Duczynski deposes that on 4 November 2022 he attended premises at Bondi Junction, and participated in an organised fitness training class led by a single instructor. Mr Duczynski further says that during the fitness training class, he recorded music being played from the speakers, and that recording is, in fact, exhibit ZD-1.
2. The second exhibit to which objection is taken is exhibit DQ-1 to an affidavit made by Mr Quested. Mr Quested deposes that at 9 am on 13 November 2022 he attended a premises located at Prahran in Victoria, and he participated in a fitness training session on those premises led by an instructor. Mr Quested deposes that he recorded the music being played from the speakers at those premises on his mobile phone, and the recording is exhibit DQ-1.
3. The third exhibit to which objection is taken is exhibit DF-1 to the affidavit of Mr Faccin. He deposes that he attended the premises at Caringbah and that he attended a fitness training class led by an instructor. He says that he recorded the music being played on the premises on his mobile phone, and it is that recording that is exhibit DF-1. Mr Faccin also deposes that on 13 July 2023 at 5.55 am, he attended premises located at Coogee, participated in a group fitness class led by an instructor, and he recorded on his mobile phone music that was being played on those premises. It is that recording which constitutes exhibit DF-2.
4. The ground of objection is that each of the deponents to whom I have referred made the recordings in breach of s 7 of the Surveillance Devices Act 2007 (NSW), at least in relation to recordings that occurred on the premises in New South Wales. For the purposes of these reasons, I am assuming that objection is taken that the recordings taken at the Prahran premises were in breach of the equivalent provision in Victoria, of that Act being the Surveillance Devices Act 1999 (Vic). For the purposes of these reasons I will proceed on the assumption that the prohibition in both Acts, as opposed to, perhaps, defences available under those Acts, are the same.
5. The prohibition in the New South Wales Act is contained in s 7(1), which provides that:

A person must not knowingly install, use or cause to be used or maintain a listening device -

(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or

(b) to record a private conversation to which the person is a party.

1. The expression "private conversation" is defined in s 4 to mean:

any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that one of those persons desires the words to be listened to only:

(a) by themselves, or

(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,

but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.

1. Mr Turner submits that the recordings record private conversations. Mr Turner provided written submissions in support of his objections, but those written submissions largely deal with the consequences of, and are made on the assumption that, Mr Turner's principal contention that the recordings record private conversations is correct. Mr Turner did no more than assert that the conversations were private.
2. In submissions I was informed in general terms what was contained in the recordings, namely, music being played on the premises, or at least appearing to do so, but they also record conversations that occur, particularly at the beginning of the recordings. It was assumed that the premises were being used as a gym and that the recordings took place at the commencement or in the course of a class the gym being conducted.
3. I adjourned the matter for a short time to consider the objection, and, during the adjournment I listened to the recordings. I did not, of course, listen to the recordings in their entirety because each of them is of some length, but I randomly went through the recordings to acquire a sense of what they did record, and attendance of the gym is a matter within the ordinary experience of many people, and what I heard on the gym accords with what one would generally expect to occur in a gym. The perception is that people are speaking. One can hear other people speaking in the background, and the overall impression is that nothing that is said or has been said, at least in relation to those portions I heard, could suggest that what was said was intended not to be heard by any other persons. In one of the recordings, the instructor is informing one of the deponents of what the routine is, but in the course of doing so he interrupts what he is saying to say hello to a newcomer, who, in turn, says hello to the instructor.
4. It is clear to me, not only from the descriptions of what these recordings record, but also from what I am entitled to understand from my general experience of what occurs at gyms, and also from my listening to at least portions of the recordings, that to the extent they pick up conversations, they cannot reasonably be considered to be private conversations within the meaning of s 4 of the New South Wales Act.
5. Detailed submissions were made on behalf of the applicant to take into account contingencies that may arise if, contrary to what I have held, I had held that the recordings recorded private conversations. I have not had an opportunity, because it has been unnecessary, to look at those submissions in any detail, other than to say that many of those submissions would have had substance if it were necessary for me to consider them in the event that I held the conversations were private.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.