Rathswohl v Court

Supreme Court of NSW|2020-10-22|Before: Rees J

Judgment

HER HONOUR: In these proceedings, the plaintiff, Robert Rathswohl, seeks an order under section 59 of the Succession Act 2006 (NSW) for provision to be made out of his father's estate for his maintenance and advancement in life. The defendant, Yvette Court, is the plaintiff's sister and executor of the father's estate.
The plaintiff tendered a recording made by the other child in the family, Lisa Davies, of a conversation with the father using her mobile phone, made without the father's knowledge or consent. Objection was taken to the tender as having been improperly or illegally obtained: section 138, Evidence Act 1995 (NSW). The question is whether recording the conversation was reasonably necessary for the protection of the lawful interests of Mrs Davies, within the meaning of section 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW), and thus not an offence under section 7(1)(b) of that Act.

Facts

Whilst I have yet to review all of the evidence in detail, the evidence suggests that, on 25 January 2017, there was a 'scene' at the mother's nursing home where Ms Court protested that Mr Rathswohl and Mrs Davies had left the care of their elderly parents to her alone. Mr Rathswohl and Mrs Davies then drove the father back to his home where, after a discussion about events at the nursing home, Mr Rathswohl and Mrs Davies discovered that a Will which the father had earlier made in 2007 - thought to have left the father's Estate equally to the three children - could not be located in the father's bedside cabinet, where the father thought it to be. There followed prompt steps by Mr Rathswohl and Mrs Davies to have a replacement Will executed by the father. Within days, the father executed a Will leaving his Estate to his children equally.
On 15 March 2017, however, the father executed another Will leaving the family home to Ms Court and funds in a bank account to Mr Rathswohl and Mrs Davies. Ms Court promptly sent a text to her brother advising that a new Will, power of attorney and enduring guardianship had been executed. The children sent frequent text messages to one another, often of a colourful and impolite nature, in respect of the care of the father and the roles that each of the children were playing, or should be playing, in his care. It is likely that Ms Court sent a similar text to Mrs Davies or, if not, that Mrs Davies came to learn of the new Will from her brother, with whom it appears she frequently communicated in respect of the activities of Ms Court. It is apparent from the recording itself that Mrs Davies and Mr Rathswohl were in regular communication.
In about March 2017, Ms Court says she began to move into the family home to care for her father. Whether Ms Court in fact moved into the family home in March 2017 or some months later is in dispute. In cross-examination, the plaintiff gave the following evidence: Yvette … moved into the house. One week after she moved in, she texted me and Lisa, I think, saying that dad had left her the house. Lisa and I both thought that was outrageous because we knew there was a will but Yvette didn't know there was a will previous to that. So I suffered all these texts. …
On the evening of 29 April 2017, Mrs Davies recorded the conversation in question. On a voir dire, Mrs Davies said that her father did not know that the conversation was being recorded. Mrs Davies said that she recorded the conversation "to prove that Yvette wasn't there every day like she stated she was". Whilst the plaintiff's senior counsel did not request that Mrs Davies be given a certificate under section 128 of the Evidence Act 1995 (NSW), it is prudent to seek a certificate in respect of evidence on such a subject, although nothing turns on it on this occasion.
With the agreement of counsel, I listened to the sound recording. Mrs Davies and her husband can be heard asking various questions of the father: when Ms Court had last come to see the father; how often she came to see her father; when Ms Court said she was going to move in; the extent to which the father was paying Ms Court's bills; Ms Court's sale of the father's possessions and the extent to which the father was prepared for Ms Court to sell any further possessions. Mrs Davies' evidence as to why she made the sound recording is corroborated by the questions which Mrs Davies asked her father during the conversation. I infer from the content of the sound recording that Mrs Davies' husband was also aware that the conversation was being recorded and may be taken to have consented to it.
On 24 May 2017, Mr Rathswohl went to the father's home to show Ms Court the Will which the father executed in January 2017, referred to at [3]. It is not presently clear whether the text messages referred to by Mr Rathswohl at [5] were received before or after Mrs Davies recorded the conversation with her father.

Use of listening devices

It is an offence to use a listening device to record a private conversation: section 7(1)(b), Surveillance Devices Act 2007 (NSW). It is not an offence if the elements described in section 7(3)(b)(i) are established, which provides: Subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if - … (b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation - (i) is reasonably necessary for the protection of the lawful interests of that principal party, … "Principal party" is a person by or to whom words are spoken in the course of the conversation: section 4, Surveillance Devices Act. Mrs Davies falls within this description and consented to the listening device being used as, I infer, did her husband.
The mischief intended to be addressed by the earlier and relevantly identical Listening Devices Act 1984 (NSW) is described in the second reading speech of the Listening Devices Bill 1984 by the then Attorney-General of New South Wales (extracted by Branson J in, Violi v Berrivale Orchards Ltd (2000) 99 FCR 580; (2000) 173 ALR 518; [2000] FCA 797 at [21]): The bill will establish safeguards against the unjustified invasion of privacy that can be occasioned by the use of electronic surveillance. In so doing, it seeks to protect one of the most important aspects of individual freedom - the right of people to enjoy their private lives free from interference by the State or by others ... People should not be expected to live in the fear that every word that they speak may be transmitted or recorded and later repeated to the entire world. The second reading speech for the Surveillance Devices Bill 2007 does not advance matters.
The words and phrases in section 7(3)(b)(i) are not defined by the Surveillance Devices Act but have been considered in a number of cases. It is useful to analyse the authorities in the context of criminal law, family law (generally concerning domestic and family violence) and civil claims. My research has not revealed any specific case concerning the use of a listening device in a family provision claim. The closest case, factually, is Thomas v Nash (2010) 107 SASR 309; [2010] SASC 153, considered at [25], where a son recorded conversations with his mother said to bear upon whether she had capacity to make a will. Otherwise, the situation at hand fits most comfortably within the civil claims case law considered at [23]-[35].

Criminal cases

In the criminal arena, the first appellate decision of note is R v Le (2004) 60 NSWLR 108; [2004] NSWCCA 82. Ms Le was a friend of Phuong Ngo, who was convicted of the murder of John Newman. Ms Le claimed that Albert Ranse told her that he had shot Mr Newman but said that she could never use what he had told her as it would be her word against his. In cooperation with a friend who worked for Channel Nine, video cameras and microphones were installed in Ms Le's car and conversations were thereby recorded with Mr Ranse. Adams J concluded that Ms Le had established that it was reasonably necessary to make the recording. The likelihood that Mr Ranse would deny the conversation was obvious and Ms Le had a lawful interest in protecting herself from the risk of the accusation that she had fabricated the conversation. "The avoidance of being labelled a liar is, to my mind, an important lawful interest, especially in the context of a criminal investigation, and it is clear that recording the conversation was the only practicable mode of preventing or refuting such an allegation": at [83]. Further, at [84]: … I do not accept that a purpose of the Act, let alone its whole object, is to prevent an irrefutable record to be made and communicated in a context where communication of the conversation is otherwise lawful. Of course, this is not to say that the mere intention of making an irrefutable record of a conversation to which one is a party will, without more, satisfy the defence: the circumstances in which the recording occurs will always be relevant to the determination of whether there is, indeed, a "reasonable necessity" for doing so.
Hulme J agreed, but expressed grave doubts whether, as a general proposition, the recording of the conversation in order to ensure there was an irrefutable record of it could be regarded as protected by the defence: at [79]. In dissent on this issue, Giles JA considered obiter that it was open to the trial judge to conclude that the elements of section 7(3)(b)(i) had not been established. At [47]: … Different minds could give different answers in the application of reasonable necessity. I am quite unable to conclude, however, that only an affirmative answer was possible. Protection of credibility generally or in the event of giving evidence plainly did not dictate an affirmative answer. Concern to have a supporting record before making allegations is of more significance, but in my opinion it was open to the judge to regard it as insufficient.
In Sepulveda v R (2006) 167 A Crim R 108; [2006] NSWCCA 379, the identical provisions in the Listening Devices Act 1984 (NSW) were considered by Johnson J, with whom McClellan CJ at CL and Hislop J agreed. A complainant in respect of historical sex abuse made a clandestine recording of a conversation with the accused for the purpose of bringing the accused to justice for criminal acts committed against him and his brothers. At the time of the recording, the complainant was 29 years old and the abuse had occurred when he was between 9 and 14 years old. The complainant sought to obtain money from the accused in exchange for the recording. Johnson J held that the recording should not have been admitted into evidence at trial as it was not "reasonably necessary" to make the recording as the victim could have approached police with his complaints; the police could have applied for a warrant under the legislation with the consequence that any conversation recorded pursuant to the warrant would have been lawfully obtained: at [138]-[139].
Johnson J observed that the mischief which the legislation addressed was the protection of privacy by establishing safeguards against unjustified invasions of privacy that could be occasioned by the use of electronic surveillance: at [105]. The legislation created an elaborate structure whereby an application could be made to this Court for the issue of a warrant to record conversations. The steps prescribed by the legislation for obtaining a warrant provided an integrated scheme for controlling infringements of privacy: at [108]-[111]. The words of section 5(3)(b)(i), which is in identical terms to section 7(3)(b)(i), whilst broad, must be viewed against this context. At [115]: … There is a strong argument that the words of s 5(3)(b)(i) ought be closely confined to avoid undermining the primary purpose of the [Listening Devices] Act. An undue willingness to include a multitude of differing circumstances within this statutory exception may serve to encourage persons to make a covert recording of a conversation rather than (in the present context), comply with the primary object of the Act by bringing the matter to the attention of relevant law enforcement authorities so that application may be made for a warrant to lawfully record a conversation.
In respect of "reasonably necessary", his Honour proceeded on the basis that "necessary" meant appropriate but not essential and "reasonably" imported an objective test, to be assessed upon the grounds that existed at the time of the recording: at [116]-[118]. "Protection" meant 'defence from harm, danger and evil': at [120]. Whilst the term "lawful interest" was capable of broad construction, Johnson J considered obiter that the statutory context in which the words appeared suggested that the meaning was not open-ended, noting that the provision constituted a statutory exemption to the prohibition upon recording conversations and where the Act operated to protect privacy: at [141]. At [142]: … The "lawful interests" identified by the learned trial Judge in the present case are of a somewhat nebulous kind. They do not appear to satisfy the requirement that the recording be undertaken for the protection of then existing lawful interests. It is important that a construction not be attached to this statutory exception which would serve to undermine, in a significant respect, a primary purpose of the [Listening Devices] Act.
In DW v R (2014) 239 A Crim R 192; [2014] NSWCCA 28, a different result pertained on the facts. A 14 year old girl made a secret recording of a conversation with her father, who was later convicted of indecent assault and child pornography offences. The girl's friend suggested that she make the recording in circumstances where the police had yet to become involved in events at the family home and the girl thought that her stepmother would not believe her allegations. The girl was frightened of her father, who had convinced his wife that the girl was lying. She did not immediately take the recording to the police, or any authority figure, but hid the recording by renaming it in a different file so that her father could not access it. She did not seek to obtain money in exchange for the recording.
Ward JA, with whom Harrison and Hulme JJ agreed, found no error in the trial judge's finding that the child's interest not to be a victim of serious criminal offences was a "lawful interest" for the purposes of section 7(3) of the Surveillance Devices Act. Her Honour found that the facts were different to those in Sepulveda as the complainant was 14 years old and, although she had her own mobile phone, this did not mean she should be expected to have understood the legal avenues that she could take in order to have her complaints investigated: at [47]. It was open for the trial judge to infer that the recording was made for the purpose of protecting the complainant's lawful interest in protecting herself from continuing abuse and exploitation: at [49]. It was not practicable in the circumstances of the case for the complainant to contact police in order to seek to arrange a warrant to record conversations with her father: at [51].
Similarly, in R v EP [2019] ACTSC 89, a woman made a complaint to the police that the accused had threatened to disseminate sexually explicit images of her. The woman later found - on the driveway to her home - an intimate image of herself, and took it to the police. She then made a covert recording of a conversation with the accused, in which the accused told her that she had to have sex with him for three months, else he would disseminate intimate images of her. The recordings were admitted into evidence as, on objectively reasonable grounds, the complainant considered it necessary to make the recordings to protect her lawful interests: at [42].

Family law cases

In Latham v Latham [2008] FamCA 877, a father made secret recordings of his wife and children, including abusive comments which suggested that the wife was a child abuser. Trench J accepted that the recordings were reasonably necessary to protect the father's lawful interests, including the likelihood that the wife would deny the conversations; that the husband needed to protect himself from risk of the accusation that he had fabricated the conversations; and, to avoid being labelled a liar. The husband was entitled to be present where the recordings were made, was entitled to participate in the conversations and repeat the conversations. Further, Trench J was otherwise prepared to admit the evidence under section 138 of the Evidence Act. At [28]: … the probative value of the evidence is potentially high. The evidence is potentially important. … The impropriety demonstrated by the husband in the obtaining of the evidence is, in my view, not gross. The recordings were made in the confines of a family. Whatever is evidenced by the recordings is not said to have been contrived or manufactured by the husband. It seems to be accepted that the recordings were made in the process of the ordinary function of this family. … it is highly unlikely that the husband would have been able to obtain the recordings with the knowledge or permission of the wife.
In Groom v Police (2015) 252 A Crim R 332; [2015] SASC 101, Mr Groom was recorded by his former partner during handover of access to their child. The former partner had made many allegations that Mr Groom was breaching an intervention order but had encountered problems proving the allegations and none proceeded to a conviction. The former partner said she held genuine concerns for her wellbeing. Nicholson J concluded, on appeal, that the recording was admissible. Nicholson J considered that, whilst breach of an intervention order was a relatively minor crime and there was no suggestion of physical violence, breach of such an order was still serious. A court should more readily accept that a recording was carried out in pursuance of a person's lawful interest in circumstances where that person had a genuine concern for their own safety: at [40].
In Gawley & Bass (2016) 313 FLR 346; (2016) 55 Fam LR 396; [2016] FCCA 1955, a father installed a listening device in the mother's home for some three weeks. The father recorded the mother with their children in an attempt to corroborate his assertions about the violence and parenting capacity of the mother, should this ever be questioned by an authority. The father made a report to Child Protection Services about the mother's violent temper and mistreatment of the children, expressing a concern that the mother had assaulted one of the children. He arranged a meeting to discuss these concerns. Judge Baker concluded that the lawful interest of the father, as a parent of the children, was to protect the children from the risk of harm and concluded that it was reasonably appropriate for the father to record the conversation: at [52]-[55].

Civil claims

In the civil context, in Violi v Berrivale Orchards, Mr Violi sought damages for misleading and deceptive conduct, based largely on conversations between Mr Violi and an employee of Berrivale Orchards, Mr Pumpa. Mr Violi recorded the conversations with the purpose of publishing the conversations if Mr Pumpa later did "not tell the truth about what was happening" or if Berrivale Orchards later denied the existence of a contract between the parties: at [3]. Branson J considered that "lawful interest" did not equate with "legal interests" in the sense of a legal right, title, duty or liability but rather encaptured interests which were not unlawful: at [28]. Having regard to the statutory context, however, her Honour considered that the Parliament did not intend to exclude from the operation of the section the recording of private conversations for the purpose of using the recording as evidence in proposed or pending legal proceedings, notwithstanding that obtaining reliable and probative evidence was ordinarily a lawful and proper thing to do: at [30]. Thus, her Honour concluded that Mr Violi's recording of conversations was not reasonably necessary for the protection of his lawful interests within the meaning of the Act: at [33].
See likewise Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266, where a joint venture partner sought declarations that it was entitled to record meetings of the joint venturers. The declarations were refused. Simply obtaining an accurate record of a meeting is not sufficient to constitute a "lawful interest", nor is making a recording in contemplation that it might be used if there is some form of litigation in the future: at [48]-[49] per Sulan J. Similarly, in Georgiou Building Pty Ltd v Perrinepod Pty Ltd (2012) 86 ACSR 713; [2012] WASC 72, recording a meeting in accordance with one's usual practice, at a time where no dispute was present or anticipated, does not demonstrate that recording the meeting was reasonably necessary to protect one's interests: at [17] per Allanson J. More recently, in RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 3) [2018] FCA 404, White J held that recording a meeting "so I will be able to make notes and recall all the detail" did not constitute protection of the lawful interests of the person: at [30]-[31].
Probably the most detailed judgment on recordings made 'just in case' there is a dispute is Thomas v Nash, which concerned whether the deceased mother of Mr Nash had capacity to make a Will. Mr Nash had recorded conversations with his mother said to bear upon this issue. Mr Nash said that he made the recordings in case his mother forgot things but Doyle CJ did not accept this explanation. "If it played a part in his thinking, it played a minor part only. He said that he made the recordings so that he could prove things … I find that he made the recordings in case it might later prove to his advantage to have them": at [25]. His Honour rejected the tender of the recordings. At [45]: Mr Nash made the recordings in case it might later turn out that in some way he could use them to his advantage. There was no litigation in contemplation at the time. Even if there was, my conclusion would be the same. I do not consider that a person makes a recording to protect his lawful interests simply because he has a hope that in contemplated litigation the recording might be used to his advantage. …
Doyle CJ reviewed the authorities in respect of "lawful interests" and concluded at [47] to [48]: [47] In none of those decisions is there an attempt to identify comprehensively the scope of the expression "lawful interests". That is not surprising. It is an expression which is best left to be applied case by case, subject to some general guidelines. [48] Each decision is an application of the expression to its particular facts. In most of those decisions it was accepted that a mere desire to have a reliable record of a conversation is not enough. I agree. Most of the decisions proceed on the basis that a desire to gain an advantage in civil proceedings would not ordinarily amount to a relevant lawful interest, although of course each case has to be considered on its facts. Several of the cases proceed on the basis that where the conversation relates to a serious crime, or an allegation of a serious crime, or to resisting such an allegation, a court is more likely to find that the recording of a conversation relating to the crime can be made in the protection of the person's "lawful interests".
If asked to exercise his discretion to exclude the evidence, Doyle CJ considered that he would have done so as Mr Nash's actions amounted to a substantial intrusion of privacy where no public interest called for the admission of the evidence. To admit the evidence in the circumstances would amount to the Court condoning what Mr Nash had done. His Honour doubted whether the excluded recordings would provide any information not already available about the capacity of his mother: at [56]-[57]. Further, to the extent that Mr Nash had also recorded conversations with the executors which might be used to contradict something which they said in evidence, Doyle CJ considered that there was no reason to think from anything that Mr Nash had put to those witnesses that a finding that their evidence was wrong in the matter of detail would lead anywhere: at [57]. An important factor in his Honour's judgment was that Mr Nash appeared for himself in the trial and appears to have done so in a most unsatisfactory manner.
The result may be different where the parties are already in dispute. In Chao v Chao [2008] NSWSC 584, Brereton J held that a recording by the plaintiff of a telephone conversation with the defendant was reasonably necessary where, at the time of the conversation, "a serious dispute had erupted" between them and it was obvious that who was going to be believed as to the different versions of the arrangements originally made between them in respect of a property were highly contentious where, on the plaintiff's case, the defendant was threatening to eject her from the property and litigation had already commenced: at [8]. Likewise in Metz Holdings Pty Ltd v Simmac Pty Ltd (No 1) (2011) 193 FCR 195; [2011] FCA 263, the applicant sought to rely on recordings of conversations with the respondent in support of a trade practices claim. Barker J accepted that the recordings were made to protect the lawful interests of the applicant as, at the time that the recordings were made, the parties were in dispute: at [24]. The applicant had become quite concerned with the respondent's behaviour and was unable to have a rational discussion with him, which led to the recordings: Metz Holdings Pty Ltd v Simmac Pty Ltd (No 2) [2011] FCA 981 at [160].
Perhaps the most comprehensive judgment on a recording made where the parties were in serious dispute is Dong v Song (2018) 331 FLR 326; [2018] ACTSC 82. Ms Dong bought a restaurant with Mr Song but had difficulty extracting a copy of the contract for sale from Mr Song and became suspicious about her business partner. Ms Dong recorded a meeting with Mr Song and, a month later, commenced proceedings against him for misleading and deceptive conduct. McWilliam AsJ considered that, in a civil context, the ability for a party to obtain a warrant, as described in Sepulveda v R, was less significant. At [35]-[36]: [35] It is difficult to see how the above reasoning as to the proper construction of the exception is applicable in a civil context. Respectfully, I do not accept the Act ought be construed so that the obtaining of a warrant is seen as the 'primary exception', by which other exceptions that directly follow it (in this case, s 4(3)(b)(i) of the Act) 'ought be closely confined'. The context of the section does not require such a construction, and it does not sit well with the fact that the particular exception provided for by the Act is equally apt to the use of listening devices to protect a person's interests in a civil context. A person who seeks to protect their private interests in a civil context cannot entreat the relevant law enforcement authorities to use their resources to apply for a warrant: see Crimes (Surveillance Devices) Act 2010 (ACT) s 11. The exception in s4(3)(b)(i) of the Act is necessarily unrelated to the exception covering warrants in s4(2)(a) of the Act. [36] In my view, neither a broad nor a confined construction attaches to the exception created by s 4(3)(b)(i) of the Act. Rather, in line with Doyle CJ's comment in [Thomas v Nash] … it is preferable to simply consider the expression 'lawful interests' in the context of the circumstances of each case, focussing on the words not in isolation, but in the context of the section being an exception to a criminal offence, and with the purpose of the Act in mind. It may be that the more tenuous the lawful interest, the less likely that it will be objectively necessary to protect it through the means of a listening device.
At the time of the recording, Ms Dong felt cheated by Mr Song, and mistrustful of him. Her Honour found that the purpose of the recording was consistent with seeking to obtain admissions from Mr Song: at [47]. Her Honour concluded that section 7(3)(b)(i) was established. At [48]: As at [the date of the recording], the plaintiff had then existing legal rights in relation to the past conduct of the defendants. She was not in the position of a victim of crime who might invoke the assistance of police. She was in the position of a person who had an interest in confirming the previous representations that had actually been made to her and in having a reliable record of what the defendants said to corroborate her position, not in the abstract or in the hope that it might be used to her advantage (c.f. [Thomas v Nash] at [45], [48]), but in circumstances where the plaintiff now had real doubts about the honesty of the defendants and where legal proceedings were not only in contemplation but imminent, and would turn on oral conversations between those parties.
The recording may not be admitted where it was made for improper purposes. For example, in Levy v Bablis [2013] NSWCA 28, "The conversation was not recorded for the purpose of obtaining admissions as to the transactions which had been undertaken and in respect of which [the principal party] may have had legal rights. It was recorded to trap [those being recorded] into engaging in further conduct, the threat of disclosure of which [the principal party] could then use to "persuade" them to meet their asserted obligations under the earlier transactions": at [109] per Meagher JA (with whom Beazley and Macfarlan JJA agreed).
The fact that the person being recorded is engaging in a dishonest act may suggest the recording was necessary. In Arcaba v K & K Real Estate Pty Limited [2016] NSWSC 1793, Hall J admitted into evidence a recording of a conversation where the plaintiff, who was suing the defendant for damages for breach of an oral contract, was asking for a piece of paper that falsely represented that the defendant owed him $550,000, in order to mislead creditors. Whilst his Honour's ex tempore judgment is not available, it appears that it was relevant to Hall J that the conversation consisted largely of the plaintiff speaking without interruption and calmly, thus, presumably not entrapped by the principal party. Further, the subject matter recorded was of a serious nature, indicating a preparedness by the plaintiff to resort to unprincipled and dishonest measures: at [167].
Lastly, in Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd (2018) 132 SASR 63; [2018] SASC 116, a truck driver brought proceedings in respect of the withdrawal of trucking work by the defendants, due to allegations that he was a bad driver. The truck driver made a series of recordings of conversations with the defendants and other persons "just to keep a record of who said what" and because, where someone abused the truck driver, he had a record so that nobody could later say that there was no abuse. As he was often driving at the time, it was not practical to take notes. He denied that he was gathering evidence for trial. After a masterful review of the case law, Doyle J observed at [101]: Drawing all of the above threads together, it remains the case that the concept of "lawful interests" is of uncertain content. While some general propositions hold true, and some guidance may be gained from a consideration of the authorities, the issue of whether a recording was made for the protection of a person's lawful interests remains one very much anchored in the facts of the particular case.
In the civil context, his Honour observed that not every commercial or legal interest, or dispute in relation to such an interest, would suffice to establish a lawful interest for the purposes of the legislation. At [105]: However, it would seem that where a dispute has arisen, and has crystallised into a real and identifiable concern about the imminent potential for significant harm to the commercial or legal interests of a person, this may suffice to give rise to lawful interests warranting protection through the use of a listening device… Thus, in that case his Honour considered the plaintiffs had a lawful interest in attempting to maintain, and avoid losing, their flow of work from the defendants and understanding and attempting to refute allegations about bad driving which represented a threat to that work. Recordings of such conversations were admissible whilst other recordings were not.

Summary

The following considerations may indicate whether recording a private conversation without consent may be "reasonably necessary for the protection of the lawful interests" of the person making the recording. 1. Whether the purpose of the conversation was to obtain admissions in support of a legitimate purpose. The contentious subject matter of the conversation, or the characteristics of the person being recorded, may indicate that it was necessary to make the recording in order to secure the admission. Recording a conversation for the purpose of extracting money, inducing further improper conduct or to blackmail the recorded party will indicate to the contrary. 2. Whether it was important to protect oneself from being accused of fabricating a conversation and recording the conversation was the only practical means of refuting such an allegation. This is more likely to be the case where the conversation concerns a serious criminal matter or the principal party has a genuine concern for their safety or that of their children. 3. Whether there were other practical means of recording the conversation, for example, reporting the matter to police or making a contemporaneous file note. 4. Whether there was a serious dispute on foot between the parties, including where determination of the dispute would vitally depend upon oral evidence and thus, one person's word against another. Recordings of conversations 'just in case' there is a dispute, or for the sake of making an accurate record of what was said, is not enough.

Submissions

The plaintiff submitted that this was a family conversation. There was nothing particularly private about what was said; it was a conversation between parent and child such that the morals of society would not be so offended if the conversation was admitted into evidence. Mrs Davies had a concern as to whether her sister was as involved in the care of the father as she was saying and wished to document the true position. A lawful interest extends to a witness protecting her credibility generally in the context of being believed as to her version of events if she has to give evidence in a court proceeding about the matter: R v Le.
As to why it was reasonably necessary to record the conversation without telling the father, the plaintiff submitted that there was no possibility to obtain a warrant in such a domestic situation. Telling her father that Mrs Davies wanted to record the conversation may have caused him to 'clam up' and not speak honestly or casually. If the father had been alerted to the fact that the conversation was being recorded, he may not have wanted to become involved in a family brawl whereas, in the unguarded circumstance recorded, the comments of the father may have a greater degree of accuracy as to the reality of the situation than if the father's comments are sought in a formal environment. Any contemporaneous note which Mrs Davies made of the conversation would likely have been challenged as to its veracity, whilst a first-hand recording of the testator's comments would not. Even if Mrs Davies had asked her father to make a note of his comments in respect of Ms Court, the veracity of the note could also have been challenged as having been procured by Mrs Davies. The father may have been more frank in the recording than if he was sat down at a desk and asked to write or sign something.
In the alternative, the plaintiff submitted that the evidence should be allowed by exercising the Court's discretion under section 138 of the Evidence Act. The gravity of Mrs Davies' impropriety in recording the conversation was said to be mild. The plaintiff faintly submitted that, as the father had now passed away, the public's attitude to the protection of privacy may be less than the privacy of someone who is alive. The father cannot be embarrassed by these private conversations coming to light. In the context of a family provision claim where witnesses often give evidence of conversations with the deceased, the plaintiff submitted that the Court may be assisted by hearing what the deceased in fact said. Section 100 of the Succession Act allows the Court to receive the statements by a testator as evidence of the truth of what he said. The Court puts great stock in evidence of what a testator says, as recorded in affidavits or statutory declarations made by a testator or videos made when making a Will. It was submitted that the dignity of the Court would not be infringed if the evidence was admitted. The evidence was relevant and probative; the contravention of the Surveillance Devices Act was not grave.
The defendant submitted that the recording should not be admitted into evidence as, at the time it was made, no serious dispute had erupted. Rather, Mrs Davies was simply recording evidence for a future dispute. No litigation was contemplated at the time. This was an exercise in evidence gathering. The defendant relied on Georgiou Building v Perrinepod and Violi v Berrivale Orchards. As to the plaintiff's alternate submission that the recording should be admitted under section 138 of the Evidence Act, the defendant submitted that the public policy of excluding illegally obtained evidence outweighed its probative value. Otherwise, it would open up any person to record family disputes in any setting.

Conclusion

The evidence here supports the existence of a serious dispute between the children as to their father's Will and care at the time the recording was made. The children were jostling for position. Ms Court had claimed that she was the only one caring for the parents. Ms Court was thought to be responsible for the disappearance of the father's Will which left his Estate to the children equally. There does not appear to have been any subtlety about communications between Ms Court and her siblings on these subjects.
It is clear from the recording that Mrs Davies was seeking to obtain admissions by the father as to whether Ms Court was at the house every day, as Ms Court apparently claimed that she was. Mrs Davies' questions to her father were pointed and clearly posed to obtain admissions. The father's voice is calm; there is no suggestion that his answers were forced. Mrs Davies may have been concerned to ensure that, when the burgeoning dispute with Ms Court came to a head on her father's passing, Mrs Davies was able to prove the truth: Mrs Davies did not live at the house; when the dispute would come to be resolved, the father would not be able to speak to the subject. Recording these admissions was one way of ensuring that Mrs Davies' evidence on this issue was not disbelieved. That may be considered a lawful interest, although I note that the plaintiff relied on the observations of Giles JA in R v Le, who was in dissent on this issue.
I consider that Mrs Davies had other "lawful interests". In the civil context, Branson J's observation in Violi v Berrivale Orchards remains apposite: a "lawful interest" does not equate with "legal interests" in the sense of a legal right, title, duty or liability: at [28]. When Mrs Davies spoke to her father over the years about his Will, the father consistently stated that his Estate would be divided equally amongst the three children. Whilst none of the children had a legal right or title to insist that their father leave his Will in any particular manner, they might have an interest in ascertaining whether Ms Court's claim to warrant a greater entitlement to the father's Estate was truthful or exaggerated. Mrs Davies was not seeking to extract money from the testator but, rather, to ensure that Ms Court did not enhance her claims to the father's Estate on a false basis. A dispute had crystallised into a real and identifiable concern about the imminent potential for significant harm to Mrs Davies' lawful interests: Nanosecond Corporation v Glen Carron at [105]. Mrs Davies was also concerned, according to the recording itself, to ensure that her father was actually being looked after.
There can be no suggestion that, in the circumstances, Mrs Davies should have gone to the police and asked that they obtain a warrant to install a listening device. In the circumstances, I am satisfied that it was reasonably necessary for the protection of the lawful interests of Mrs Davies to make the recording. The elements of section 7(3)(b)(i) of the Surveillance Devices Act being established, no offence was committed in recording the conversation. The recording is admissible.
This conclusion is referable to the facts of this case. No doubt similar facts arise from time to time in family provision claims. The prospect, however, that elderly parents are secretly recorded by those who believe they are entitled to receive a distribution from their Estate is an unpalatable and unseemly prospect. Reviewing the recording in question, and another recording which Ms Court made of her father with his consent, suggests some pitfalls in recording a testator, either covertly or with their consent.
First, making a covert recording of a testator will not ordinarily reflect well on you. Listening to a recording of an elderly person being questioned by someone whilst unaware that their responses are being recorded is uncomfortable. It is a breach of the testator's privacy. The plaintiff's submission that the importance of protecting the privacy of a deceased person may be less does not accord with the observations of Doyle CJ in Thomas v Nash, referred to in this judgment at [27].
Second, any parent who knows their child well will, in a casual conversation, likely say what will contribute to a pleasant exchange and enjoyable meeting. A parent may well say what they perceive the listener wants to hear and avoid "home truths" if they think it is likely to offend their child or lead to conflict. Thus, whilst such a recorded conversation may be casual, it might not be particularly accurate as to what the testator truly thought on contentious subjects.
Third, the recording may also contain evidence which is unwittingly damaging to the person who made it. The strongest message from Mrs Davies' recording was that her father was lonely and bored; was keenly interested in family members and wanted to talk; wished for company and was, in that sense, vulnerable. Mrs Davies and her husband were busy, hurried and wanting to leave, no doubt in part because it was late in the evening, they were on their way home after bringing the father groceries and he was on his way to bed; and, perhaps, because Mrs Davies was aware that she was recording the conversation and needed to bring the conversation to a close. I should not, before passing, that it is clear from the recording that the relationship between father and daughter was one of mutual care and affection.
A more striking example is the video which Ms Court says that her father asked her to make in 2017, "dads wishes". The father can be seen leaning on the kitchen bench saying, "My wish is my daughter stays in this house till I die and after that it is her house". Ms Court says, "And what about Rob and Lisa?". The father says, "They got their own house, Rob and Lisa got their own house and it's no good bludging on me". It is a sad video. The father bows his head. His body language disavows his words. Although I have yet to absorb all of the evidence in this case, my initial impression on viewing the video was that it records an act of appeasement more than an announcement.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 October 2020

Listening Devices Act 1984(NSW)

(2016) 55 Fam LR 396

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