//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2005] FCA 522
Federal Court of Australia
2005-05-03
Ryan J
Original judgment source is linked above.
41 The argument which has taken place on Multiplex's motion has highlighted the inappropriateness, in a case like the present, of requiring the respondent to adduce its evidence-in-chief on affidavit, at least before objections to the applicant's evidence have been received and ruled upon. If compelled to file its affidavits before such a ruling, a respondent may well supply the deficiencies which would be exposed in an applicant's case as a result of parts of its evidence having been ruled inadmissible. One consequence of such compulsion may be to deprive the respondent of an effective submission that it has no case to answer. 42 I do not regard the observation of Branson J in Employment Advocate v Williamson quoted at [35] above as indicating that a ruling on admissibility pursuant to s 138(1) of the Evidence Act can only be made after all of the evidence on both sides, including evidence directed to the substantive issues, has been received. That was apparently what happened in Williamson, although it is unclear from the report of that case in the Full Court whether the respondent went into evidence at all during the trial below. At all events, I consider that her Honour's statement that the "judgment should be made by a judge who has heard the evidence and seen the witnesses" was a reference only to a judge who has heard the evidence and seen the witnesses to the extent necessary to rule on admissibility under s 138(1). Her Honour should not be understood as having expressed an opinion as to when, during a trial, a ruling by a judge having the advantages she identified should be made. I am reinforced in this view by the references in her Honour's reasons to Bunning v Cross (1978) 141 CLR 54 which discussed the common law discretion to admit or exclude reliable but improperly obtained evidence. There is no suggestion in that case that the discretion cannot be exercised as soon as objection is taken to the admissibility of the impugned evidence. 43 In the circumstances, I consider it appropriate to revoke paragraphs 2, 3 and 4 of the order of 28 May 2004 and to afford Multiplex an opportunity, in the course of the trial of the action, before adducing its own evidence by way of substantive defence, to obtain a ruling on the admissibility of the impugned parts of the applicant's evidence.
Conclusion 44 In the result, I shall order that: 1. Paragraphs 2, 3 and 4 of my order of 28 May 2004 be set aside. 2. The applicant file and serve by 20 May 2005 any affidavit or affidavits, in addition to those already filed, on which he intends to rely in support of his application. 3. The respondent file and serve by 10 June 2005 a statement of contentions in respect of any parts of the applicant's evidence referred to in paragraph 2 above which it contends to be inadmissible, together with any affidavit or affidavits on which it intends to rely in support of its said contentions. 45 I propose to direct that the trial to which I have referred in [43] above commence on 29 August 2005 and proceed, if necessary, for the whole of the week commencing on that day. There should be a directions hearing on a date to be fixed, being after 10 June and before 12 August 2005, to ensure that the trial, including the dispute as to admissibility of the applicant's evidence, will be ready to proceed on 29 August 2005. The costs of both parties of Multiplex's motion on notice dated 24 August 2004 should be reserved and that motion should otherwise be dismissed. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.
Associate: Dated: 3 May 2005 Counsel for the Applicant: Mr R R S Tracey QC with Dr S P Donaghue
Solicitor for the Applicant: Australian Government Solicitor
Solicitor for the Respondent: Corrs Chambers Westgarth
Date Further Submissions Filed: 27 August and 3 September 2004
Ponzio
Multiplex Limited
Multiplex's submissions 7 Counsel for Multiplex contended that the evidence which it seeks to have excluded represents a substantial part of the evidence to be relied upon by the applicant at trial. 8 Multiplex also submitted that it would be just and convenient and conducive to the orderly conduct and disposition of the proceeding if the admissibility of such a substantial and critical body of evidence were determined at the earliest opportunity. It was submitted that this approach would conform with efficient case management; see Village Building Co v Canberra International Airport [2003] FCA 1195 per Finn J at [9]. 9 It was further submitted that, if the objection to the admissibility of the evidence were upheld, there would be substantial savings of time and costs as a result of the early definition of the scope of the issues legitimately raised by such of the applicant's evidence as is held to be admissible. 10 In addition, it was submitted that it would be oppressive, as well as wasteful of the time and costs, to require Multiplex to file affidavits in answer to evidence in the applicant's affidavits which would later be ruled inadmissible. 11 Counsel for Multiplex foreshadowed a submission that the evidence should be excluded pursuant to s 138(1) of the Evidence Act as it had been obtained in contravention of an Australian law and further, that the desirability of admitting the evidence is outweighed by the undesirability of admitting evidence that has been illegally or improperly obtained. In respect of the telephone conversations between Mr Baharis and Messrs Slater and Padgett, a submission was outlined that the applicant had contravened s 6 of the Surveillance Devices Act 1999 (Vic) ("the Surveillance Devices Act") by using a listening device to overhear, monitor and listen to a private conversation between the respective participants. 12 Section 6 of the Surveillance Devices Act provides: 'Regulation of installation, use and maintenance of listening devices (1) Subject to sub-section (2), a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation. In the case of a natural person, level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both; In the case of a body corporate, 1000 penalty units for a first offence and 2000 penalty units for a subsequent offence. (2) Sub-section (1) does not apply to - (a) the installation, use or maintenance of a listening device in accordance with a warrant or an emergency authorisation; or (b) the installation, use or maintenance of a listening device in accordance with a law of the Commonwealth.' 13 "Listening device" is defined in s 3 of the Surveillance Devices Act as: 'any device capable of being used to overhear, record, monitor or listen to a private conversation or words spoken to or by any person in private conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear;' 14 Multiplex also submitted that it is clear from the affidavits filed on behalf of the applicant that, although Mr Baharis had physically used the digital recorder provided by the applicant to record the conversations, in the circumstances Mr Baharis was acting for and on behalf of the applicant in making the recording. This, it was submitted, constituted a further breach by the applicant of s 6 of the Surveillance Devices Act. 15 In addition, Multiplex submitted that the applicant's conduct had been improper or had otherwise involved an impropriety so as to warrant the exclusion of the evidence pursuant to s 138 of the Evidence Act. (See DPP v Carr [2002] NSWSC 194 per Smart AJ at 158 [27] and [34] for a discussion of the broad concepts of improper conduct and impropriety.) It was submitted that Mr Baharis had been "used as a decoy" by the applicant to conduct an interview with Mr Padgett on 28 January 2004 and that this amounted to impropriety or improper conduct on the part of the applicant. Multiplex asserted this claim to be consistent with the fact that it was the applicant who had suggested that Mr Baharis should contact Mr Padgett and the telephone conversation should be recorded. Further, it was the applicant who had provided Mr Baharis with the digital voice recorder and showed him how to use it. As well, the applicant was present throughout the telephone conversations on the morning of 28 January 2004 and during the conversations wrote notes prompting Mr Baharis to question Mr Padgett on certain issues. The applicant also arranged for the tapes to be transcribed. 16 Counsel for Multiplex submitted that the affidavits so far filed reveal that the applicant's impropriety or contravention was clearly deliberate and occurred after the applicant had consulted with colleagues. Moreover, so the submission proceeded, the applicant recognised the risk of the tape recordings of the conversations of 28 January 2004 being ruled inadmissible and for that reason advised Mr Baharis some days later to make his own notes of those conversations. 17 It was next submitted that the telephone conversations involved deception as Mr Padgett had not been told that his conversation with Mr Baharis was not private and was being recorded. Counsel for Multiplex argued that Mr Padgett ought to have been notified that a third person (the applicant) was listening in, and that the third person was an inspector for the Building Industry Taskforce (the Taskforce) and it should have been disclosed that the conversations were being recorded. 18 The submission for Multiplex continued that the applicant's impropriety included a failure to follow the Taskforce's own procedure when conducting interviews (which, it was submitted, is effectively what the conversations of 28 January 2004 were). Mr Padgett was not cautioned in either of his telephone conversations with Mr Baharis that he had the right to remain silent or that anything he said could be used subsequently in a court of law. (See R v Swaffield (1998) 192 CLR 159). 19 Multiplex submitted that, once it is established that evidence has been obtained by means which involved illegality, improper conduct or impropriety, the onus is on a party seeking to rely upon that evidence to justify the exercise of the Court's discretion to receive the evidence. (See Australian Law Reform Commission, Report 26, Vol. 1 at [964].) In the same context, it was contended that the meaning of the word "obtained" in s 138(1) of the Evidence Act should be construed broadly as it was intended to qualify evidence subsequently obtained as a consequence of improper conduct as well as evidence that was immediately obtained in consequence of that conduct. (See Australian Law Reform Commission, Report 26, Vol. 1 at [966]). On this argument, the requisite causal relationship would be satisfied by an application of a "but for" test. (See DPP v Carr [2002] NSWSC 194 per Smart AJ at [70]. See also R v Haddad & Treglia [2000] NSWCCA 351 per Spigelman CJ at [73]-[74].) It was said to be as a consequence of the improper and illegal telephone conversations on the morning of 28 January that Mr Padgett made a follow-up telephone call to Mr Baharis that afternoon. In Multiplex's submission, evidence of the conversation of the afternoon would not have been obtained but for the calls earlier that day which involved improper and illegal conduct. In those circumstances, evidence of the latter conversation should also be excluded. 20 Further, Multiplex submitted that records of interview conducted by the applicant with Mr Padgett and Mr Slater on 10 February 2004 should be excluded as the applicant did not follow the Taskforce's normal practice of contacting an employer before entering a worksite to notify it of the intention to interview employees. Although Multiplex acknowledged that the applicant had cautioned Mr Padgett that he had a right to remain silent and that anything he said might be used in evidence in a court, it was also submitted that the applicant had failed to follow the Taskforce's normal practice as he had not also cautioned Mr Slater who was junior , as an employee, to Mr Padgett. 21 In Multiplex's submission, the applicant should be precluded from taking advantage of what, it is contended, was improper and illegal conduct in obtaining the evidence constituted by the records of interview. Those records of interview and incidental discussions at the time of the interviews should, it was said, also be excluded by the Court in exercise of its discretion pursuant to s 138 of the Evidence Act. 22 On the matters required to be taken into account pursuant to s 138(3) of the Evidence Act, Multiplex contended that the probative value of the evidence is questionable, particularly in the apparent absence of evidence that either Mr Slater or Mr Padgett had authority to make statements or admissions for, or on behalf of, Multiplex. Further, it was submitted that the evidence is highly prejudicial but is not critical to establishing the applicant's claims. Although the applicant relies upon one of the conversations of the morning of 28 January 2004, there was said to be no indication in the applicant's pleading that the conversation is central to making out the alleged contravention of s 170NC of the Act. 23 Counsel for Multiplex submitted that the evidence in question is to be used to make out, not a criminal offence, but contravention of a statutory provision attracting a civil penalty and that little weight should be attributed to the importance of establishing a contravention of the Actwhen exercising the discretion to admit or exclude evidence improperly or illegally obtained. (See Klein v Bryant [1998] ACTSC 89 per Master Connolly at [57].) 24 In the context of s 138 of the Evidence Act it was said that there was no suggestion in that Act that s 138 prescribes a way of dealing with an objection that evidence has been illegally or improperly obtained which is different from the manner of ruling on objections that evidence is inadmissible under other sections of the Evidence Act. It was said that objections to admissibility are normally ruled on when the evidence is sought to be led, or where it is contained in an affidavit, at the beginning of, or before, the trial. It is by no means mandatory to defer such a ruling to the end of the trial.
Applicant's submissions in response to Multiplex's application 25 The applicant opposed, for three reasons, Multiplex's application to have its objections to the contentious evidence determined separately from, and in advance of, other issues pursuant to O 29 r 2. In the first place, it was said, the requirements of O 29 r 2 have not been satisfied. Secondly, Counsel for the applicant contended that it is not possible to assess alleged illegality or impropriety for the purposes of s 138(1) without hearing witnesses and, thirdly, the balancing exercise required by s 138(3) can only be undertaken after all the evidence has been received. 26 Counsel submitted that courts are cautious in having recourse to O 29 and generally refrain from doing so when the facts are not fully established or agreed. See Energy Australia v Australian Energy Ltd [2001] FCA 1049 where Stone J observed, at [5]; 'Although O29 r2 clearly allows a separation of issues such as the applicant seeks, the starting point is still that in the ordinary course all issues of fact and law should be determined at the one time; Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-142. A party seeking to depart from the ordinary procedure needs to point to some perceptible benefit to be gained from such course. The relevant legal principles were summarised by Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [8]-[9]. As her Honour concluded: "Ultimately the issue for the Court to determine when consideration is being given to the making of an order under O29 r2 is whether it is 'just and convenient' for the order to be made…" [6] In Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 ("Idoport") at [7] Einstein J cautioned against too ready separation of issues stating that: "The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings…"' 27 At [8] in Energy Australia her Honour acknowledged that she did not yet have information concerning the evidence to be brought by either party but that; '… given the nature of the claims, it would not be surprising if there was a commonality of witnesses and an overlap of evidence. If the issues concerning liability were separated from other issues this might cause difficulty.' 28 She then noted an additional difficulty to which Einstein J had referred in Idoport, namely that; 'The resolution of the separate issue will not finally determine the issue but will merely result in an appeal from that decision in relation to that separate issue creating a multiplicity of proceedings, interruption to the court and undesirable fragmentation of proceedings …' 29 It was submitted for the applicant that, in the absence of agreed facts, the issues that fall for determination in this matter cannot be resolved without receiving evidence directed to those issues. That evidence, if received for the purposes of separately determining an issue under O 29 r 2, would have to be repeated by the same witnesses at trial. For example, the applicant disputes Multiplex's claim that Mr Baharis acted as the applicant's agent and contends that whether he did so is a question of fact that will have to be resolved, and can only be resolved, after all the evidence is in. 30 Counsel for the applicant also contended that the discretion to order a separate trial of a question under O 29 r 2 should only be exercised where the answer to the preliminary question is likely to make the substantive hearing unnecessary, at least if the question is answered one way, which would not happen in the present case. 31 In a related way it was submitted that some witnesses whose evidence would be adduced in a separate trial of the issue of admissibility would also give evidence at the substantive trial. As a result, findings would be made on the credibility of those witnesses after hearing them on only a narrow aspect of the case. The assessment of credit might be different if made after hearing the whole of their evidence, and in any event, could prejudice the evaluation of their evidence at trial. 32 As to the relation between s 138(1) of the Evidence Act and the Surveillance Devices Act, Counsel for the applicant submitted that it is not unlawful for a person to record a telephone conversation to which that person is a party. It was submitted that the illegality arises according to s 11(1) when publication of the recorded conversation occurs, and then subject to two important qualifications imported by s 11(2) of the Surveillance Devices Act. The first qualification can be invoked if it was in the public interest or reasonably necessary for the recording to take place. There is also an exception if the publication takes place in the course of curial proceedings. It was submitted that any issues in relation to s 11 with regard to public interest that may arise can only be resolved when all the evidence has been heard. 33 In response to Multiplex's submission that merely recording a conversation is an offence pursuant to s 6 of the Surveillance Devices Act, Counsel for the applicant submitted that Mr Baharis had been a party to the conversation so s 6 did not apply to him. Counsel for the applicant acknowledged that this raised the issue of agency which would require determination before any conclusion could be reached as to impropriety or illegality. 34 It was submitted for the applicant that s 138(3) of the Evidence Act contemplates that, even if evidence has been obtained improperly or in contravention of a provision like s 6 of the Surveillance Devices Act, it may nonetheless be admissible. In determining admissibility, a court is required by subsection (3) to have regard to a number of matters including the probative value of the evidence, the importance of the evidence in the proceeding, the nature of the evidence, the cause of action or defence and the nature of the subject matter of the proceeding. 35 In Employee Advocate v Williamson (2001) 111 FCR 20 a face-to-face conversation had been recorded secretly by one of the parties to that conversation and the trial judge had, after a full hearing, not on a preliminary or provisional basis, excluded that evidence. On appeal, Branson J, with whom Kenny J agreed in relation to her views on s 138(3), observed at 49 [101] that it would not be appropriate for the Full Court to determine the admissibility of the tape-recording and the transcript as; 'The nature of the judgment required to be made under section 138 of the Evidence Act suggests that in all but very clear cases the judgment should be made by a judge who has heard the evidence and seen the witnesses.' 36 Counsel for the applicant submitted that this passage should be understood as referring to a judgment to be made "at the end of the trial" as occurred in Employee Advocate v Williamson (supra). It was submitted for the applicant that a judge would not be in a position at the end of a preliminary hearing of the kind that is being sought in the present application to make the judgment required by s 138(3). Until the judge has heard evidence and seen the witnesses giving it, he or she would be unable to make the overall judgment required by s 138(3). For that additional reason, the applicant contended that it would not be conducive to the effective management of the trial to seek to resolve, at a preliminary stage, the admissibility of the contentious evidence.
[1998] ACTSC 89
(1998) 192 CLR 159
(2001) 111 FCR 20
(2001) 109 FCR 488
(1978) 141 CLR 54