Scanruby Pty Ltd v Caltex Petroleum Pty Ltd and Anor

APPLICANT (RESPONDENT ON THE MOTION) Mr B H Donovan QC and Mr S Coleman of counsel SOLICITOR Williams - The Law Firm, PETERSHAM.

LEGAL REPRESENTATIVES: RESPONDENT (APPLICANT ON THE MOTION) Mr D E Ryan SC SOLICITOR Middletons Moore & Bevins SYDNEY.

JUDGMENT:

• 27 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

SCANRUBY PTY LIMITED v CALTEX PETROLEUM PTY LIMITED & ANOR

Application under s106 of the Industrial Relations Act 1996

1 Scanruby Pty Limited ('Scanruby'), the applicant in s.106 proceedings brought against the respondents, Caltex Petroleum Pty Limited and Caltex Australia Petroleum Pty Limited, has filed, in accordance with earlier issued directions, affidavit material upon which it will seek to rely. The hearing of its application is scheduled for 12 days commencing 21 August 2000. 2 Within that affidavit material is a recitation of conversations which it is suggested is a largely verbatim transcript of conversations as they were contemporaneously recorded upon video tapes. The video tapes themselves are also intended to be relied upon as being supporting or corroborative of the conversations. They contain somewhere between 24 and 30 hours of video recorded material, a small portion of which is transcribed in the affidavit of Mr Dimis, the Managing Director and a shareholder of Scanruby. 3 By notice of motion supported by affidavit the respondents seek to achieve the rejection of the video tapes and the affidavit evidence reliant upon them on a number of bases. An interlocutory approach to the question has been taken because of the volume of material contained in the videos; the many hours of potentially wasted time which would be necessary for the respondents to apply to the preparation of their case if the video tapes and the conversations are admitted, and the desirability of avoiding that waste if the material is not admissible in any event. 4 The conversations in the materials to which objection is taken involve Mr Dimis and various employees of one or other of the respondents. There is no dispute that they were recorded secretly. The only evidence on the point, although admitted over the applicant's objection, establishes to my satisfaction for the purposes of the motion that the participants other than Mr Dimis were not aware that their conversations were being recorded by any means. 5 Also, there was no dispute that the video recording device was a listening device within that term as defined in the Listening Devices Act 1984 - "listening device means any instrument, apparatus, equipment or device capable of being used to record or listen to a private conversation simultaneously with its taking place". 6 The respondents' motion seeks the following primary orders: A. that the Applicant not be entitled, at the final hearing of these proceedings, to read paragraphs 59, 60, 62, 64, 66, 67, 68 and 69 ("the relevant paragraphs") of the affidavit of Mr Dimis sworn on 4 November 1999 ("Mr Dimis' second affidavit"), by virtue of the fact that such evidence was obtained by the use of a listening device in contravention of section 5 of the Listening Devices Act 1984 ("the Act"). B. that the Applicant not be entitled, at the final hearing of these proceedings, to tender exhibits "JD3", "JD4", "JD5", "JD6", "JD7" AND "JD8" to Mr Dimis' second affidavit ("the Exhibits"), by virtue of the fact that such exhibits were obtained by the use of a listening device in contravention of section 5 of the Act. C. Further, or in the alternative, pursuant to Part 16 Rule 121 that the relevant paragraphs be struck out or, alternatively, that Mr Dimis' second affidavit be taken off the Industrial Relations Commission's file. D. In the alternative, an order pursuant to section 138 of the Evidence Act, 1995 that the evidence in the relevant paragraphs and constituted by the Exhibits not be admitted at the final hearing of these proceedings. E. that the circumstances relating to the making of the relevant paragraphs and the making of the Exhibits be referred to the Director of Public Prosecutions. (In addressing this order, Caltex submitted that a reference to the Attorney-General would be appropriate). Background 7 Scanruby occupied, under lease and licence arrangements the terms of which are not presently relevant, a petrol station, shop and restaurant operation on both sides of the F3 Freeway at Wyong between 1 July 1993 and September 1998. Scanruby was the first operator of the site, which was then newly established. Caltex was the sub-lessor and sub-licensor, holding a head lease from the owner of the land. The relevant leases and licences expired on 30 July 1995, negotiations resulting in an extension up to 30 June 1998. 8 Scanruby claims in the substantive proceedings that in October 1992 Caltex represented to it that it would have a five-year lease with a five-year option. This representation is denied by the respondents. 9 On 22 March 1998 Caltex purported to give six months' notice terminating the occupancy of the sites by the applicant, which then commenced proceedings in the Equity Division of the Supreme Court seeking to restrain the respondents from taking possession. Those proceedings were dismissed on 4 September 1998 by Mr Justice Cohen. 10 On 18 June 1998 Scanruby commenced these proceedings.

The Relevant Legislation 11 The Listening Devices Act 1984 provides relevantly as follows: S.5 Prohibition on use of listening devices

(1) A person shall not use, or cause to be used, a listening device:

(a) to record 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.

(3) Subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if:

(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or

(b) a principal party to the conversation consents to the listening device being so used and:

(i) the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party, or (ii) . . . .

S.7 Prohibition on communication or publication of records of private conversations by parties thereto

(1) A person who has been a party to a private conversation and has used, or caused to be used, a listening device to record the conversation (whether in contravention of section 5 or not), shall not subsequently communicate or publish to any other person any record of the conversation made, directly or indirectly, by the use of the device.

(2) Subsection (1) does not apply where the communication or publication:

(a) is made to another party to the private conversation or with the consent, express or implied, of all of the principal parties to the conversation,

(c) is not more than is reasonably necessary for the protection of the lawful interests of the person making the communication or publication.

(1) A person convicted summarily of an offence against this Part shall be liable:

(a) except as provided by paragraph (b), to a fine not exceeding 40 penalty units or imprisonment for a term not exceeding 2 years, or both, or

(b) where the offence was committed by a corporation and the proceedings for the offence were taken before the Supreme Court in its summary jurisdiction, to a fine not exceeding 500 penalty units.

(2) A person convicted on indictment of an offence against this Part shall be liable to a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 5 years, or both.

S.13 Inadmissibility of evidence of private conversations when unlawfully obtained

(1) Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device in contravention of section 5:

(b) evidence obtained as a direct consequence of the conversation so coming to the knowledge of that person,

may not be given by that person in any civil or criminal proceedings.

(2) Subsection (1) does not render any evidence inadmissible:

(a) if all of the principal parties to the private conversation concerned consent to the evidence being given,

(b) if the private conversation concerned comes to the knowledge of the person called to give the evidence otherwise than in the manner referred to in that subsection, notwithstanding that the person also obtained knowledge of the conversation in such a manner,

(c) in proceedings for an offence against this Act or the regulations, or

(i) an offence punishable by penal servitude for life or for 20 years or more, or

(ii) a serious narcotics offence, if the court considers that the evidence should be admissible.

12 For the purposes of a consideration of the references in s5(3)(b)(i) to "a party" and to a "principal party" s3, Definitions of the Act provides the following definitions: party , in relation to a private conversation, means:

(a) a person by or to whom words are spoken in the course of the conversation, or

(b) a person who, with the consent, express or implied, of any of the persons by or to whom words are spoken in the course of the conversation, records or listens to those words.

principal party , in relation to a private conversation, means a person by or to whom words are spoken in the course of the conversation

13 Section 138 of the Uniform Evidence Law (the Evidence Act, 1995 - N.S.W.) provides as follows: 138 Discretion to exclude improperly or illegally obtained evidence (1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

14 Section 135 provides: 135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

15 The evidence tendered by Caltex for the purposes of the motion consists of three affidavits by Mark Geoffrey Doble. Mr Doble's evidence, which was not contested, deals with three matters of immediate relevance. The first that as a result of his having viewed the video tapes he has been able to identify the fact that the affidavit material of Mr Dimis substantially reflects certain conversations contained on the video tapes.

16 Secondly, that the relevant conversations involving Caltex employees were recorded without their knowledge or consent. 17 Thirdly, that an affidavit sworn by Mr Dimis on 9 August 1998 for the purposes of the proceedings in the Equity Division of the Supreme Court contained the language of conversations identical to that contained in an affidavit sworn by Mr Dimis in the present proceedings which, in the latter case, plainly derive from the video tapes. At no time, it is said, was this fact disclosed to the Supreme Court. 18 The evidence tendered by Scanruby on the motion consists of the video tapes, although it was not suggested that it was necessary for any reference to be made immediately to the tapes, and the affidavit of Mr Dimis, sworn 4 November 1999 and filed in these proceedings, which contains the particular conversations. The annexures to that affidavit were not tendered.

The Arguments 19 The motion is advanced on the principal bases that firstly the video recordings of the conversations constitute breaches of s.5 of the Listening Devices Act and do not fall within any of the exceptions provided in that section and, secondly, the evidence is by s.13 of that Act inadmissible because it was unlawfully obtained. In the alternative the argument is that the Commission should reject the evidence pursuant to s.138 of the Evidence Act 1995 on the basis that, if contrary to the primary submission the obtaining of the evidence was not unlawful, it was obtained improperly and the undesirability of receiving evidence so obtained is not outweighed by the desirability of receiving the evidence in the circumstances of the case. The supplementary argument is that having regard to its volume and prolixity the material is oppressive and should be rejected. It is also suggested through the affidavit evidence of Mr Doble tendered by Caltex that Mr Dimis swore an affidavit on 9 August 1998 for the purpose of the Supreme Court proceedings which, when compared with the affidavit sworn by him and filed in the present proceedings and which contains a transcript from the video tapes, also plainly was derived from the video tapes. This fact, it is said, was not disclosed to the Supreme Court. The respondents submit that the Commission should, in those circumstances refer the relevant material to the Attorney-General, whose written consent is necessary before proceedings for an offence against the Listening Devices Act may be instituted (see s.28 thereof). 20 The defence to these propositions is in summary that while the recording may be accepted as contrary to the provisions of s.5(1) of the Listening Devices Act the recording in this case comes expressly within the exception provided by s.5(3)(b)(i). That is, the recording was "reasonably necessary for the protection of the lawful interests" of Scanruby. Mr. Dimis, as the managing director of and one of four shareholders in Scanruby, has a lawful interest to protect. In addition, it was Scanruby, through him, which may be seen as doing the recording; it was acting, as it only can, through its officers, in this case its principal officer. 21 The lawful interests of Scanruby and indirectly Mr. Dimis were to defend against the unfair termination of the lawful interests in the property. 22 While s.7(1) imposes a bar on the communication or publication of a private conversation recorded by use of a listening device, s.7(2)(b) avoids the provision where, as here, the communication or publication is made in the course of legal proceedings. 23 In relation to s.13, it was submitted that the section is intended to operate only where the party seeking to adduce the evidence of the recorded conversation was not a party to it. Here Mr. Dimis was a party to the conversation; it did not come to his knowledge as a result, direct or indirect, of the use of the listening device. Section 13 does not apply. 24 Section 138 of the Evidence Act does not prevent the admission of the evidence. There has been no contravention of an Australian law and the evidence was not obtained improperly. However, if the view were taken that the evidence had been improperly obtained the section provides a means by which the evidence may be admitted and having regard to considerations referred to in s.138(3) (See judgment of Miles CJ in R v Truong [1996] A Crim R 188 at 195). Having regard to the probative value of this evidence, which is great, the court would find that the evidence is admissible. 25 As to oppression the submission was that there is no oppression - quite the opposite in fact. The admission of the video taped material will not be productive of delay, it will very likely result in a shorter hearing. There is no element of scandalous material in the video tapes or the affidavit. Counsel submitted that the video tapes relate merely to the conversations which are set out in the affidavit and accordingly there is no oppression relating to volume or prolixity.

26 I was referred to a number of authorities concerning the question of the admissibility of evidence obtained by a listening device and also the role played by s.138 of the Evidence Act. 27 The first in time is that of Finlay J in Miller v TCN Channel Nine [1988] 36 A Crim R at 92, which held that the onus of establishing any of the exceptions to the prohibitions imposed by s.5(1) and s.7(1) of the Listening Devices Act rests on the party seeking to establish the exception and on the balance of probabilities. Caltex submitted that the judgment in Miller is authority for the proposition that even if Mr Dimis, as a "party" to this conversation, was permitted to give evidence of it if he otherwise had a recollection, the participation of Scanruby's employee in the conversation did not make the corporation itself a party to the conversations. Reliance was placed on the observations (at 108) where, dealing with the charge that Trans Media Productions Pty Ltd did "cause to be used a listening device to record a private conversation to which it was not a party", Finlay J said: The elements of that charge required to be proved by the prosecution beyond reasonable doubt are that the defendant: (i) caused to be used a listening device;

The evidence clearly establishes that Trans Media, through its executive producer, caused its employees, Miss Donaldson and Mr Kelly, to record what I have already held to be a private conversation.

As to the third element I am satisfied Trans Media was not a party to that conversation. Merely because its employee Miss Donaldson, at Trans Media's instigation, was falsely pretending to be a genuine applicant to Talent Scouts in the conversation does not make Trans Media a party to it. I reject the submission to the contrary. I am satisfied that each of the three elements has been established.

28 I consider this judgment is distinguishable on its facts concerning the question whether the corporation is a party to a conversation in which an employee engages. Here, while there was an obvious theoretical distinction between Mr Dimis and Scanruby, nevertheless Mr Dimis was the principal officer of Scanruby and the obvious person through whom Scanruby was to act. This is demonstrated particularly by the apparent fact of Caltex representatives dealing with Scanruby through Mr Dimis on the subject of occupancy. 29 In Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 98 Levine J rejected the tender of taped conversations allegedly obtained pursuant to warrants issued under s.16 of the Listening Devices Act, on the basis that the pre-conditions for the tender of the tapes, namely the validity of the warrants, had not been made out. In that matter conversations had been recorded by a Mr Elomari who had said in earlier evidence that he had recorded the conversations and passed the tapes on to the Police Royal Commission. Referring to the scope of s.13 of the Listening Devices Act Levine J said: I am not persuaded by the submissions that s13 of the Listening Devices Act applies to a participant or a party to the conversation. There are at least two reasons for that. The participant, of course, can give direct evidence, subject to any general law or statutory exception to admissibility, as to the conversation that participant had with another person: what he said, what the other person said, of the words spoken, that evidence in no way being affected in its admissibility by reason of the fact that, at the same time, it was being recorded. Mr Elomari has given no such evidence. S13(2) is another basis for rejecting the submission. In s13(2)(a) it is provided that the evidence can become admissible if the principal parties to the private conversation concerned consent to the evidence being given. That is, evidence of the contents of a private conversation knowledge of which has come to a person "as a result, direct or indirect, of the use of a listening device in contravention of s5" (s13(1)).

30 Mr Ryan submitted that his Honour's reasoning does not support those conclusions and were not in point. 31 Levine J also said: I respectfully agree with what Simpson J said in Karageorge at 123-4, that s13 of the Listening Devices Act provides that evidence of a private conversation that has come to the knowledge of a person as a result, directly or indirectly, of the use of a listening device - and I interpose as opposed to hearing the communication otherwise than as recorded - if in contravention of s5 is inadmissible in any proceedings, civil or criminal, and that there is no residual discretion under the Evidence Act to admit it.

32 There seems to me to be, contrary to the submission of Caltex, a consistent line of what I would consider persuasive authority that s13 of the Listening Devices Act does not apply to the evidence given by a party to the conversation. That line of authority consists firstly of the judgment of Needham J in Andrews v Love (unreported - Supreme Court of NSW, 13 November 1986) where his Honour said: In my opinion s13(1) does not prohibit a party to the conversation giving evidence of that conversation. It only prohibits evidence being given of the conversation by a person who has obtained knowledge of the private conversation as a result, directly or indirectly, of the use of a listening device. It seems to me that s13(1) relates to persons other than those who are parties to the conversation to whom knowledge has first come to them as a result of the use of a listening device.

33 Secondly, the observations of Levine J in Marsden v Amalgamated Television Services Pty Limited. 34 Thirdly, the judgment of Windeyer J in Bedford v Bedford (Supreme Court of NSW, Equity Division - 20 October 1998). In that matter a solicitor had taped an interview which he purported to conduct on the basis of an examination summons issued on behalf of a judgment creditor. Windeyer J found that in fact the purpose of the interview was to obtain evidence for the purposes of the action of another client entirely. In relation to the attempt by counsel for that client to tender the evidence so obtained, Windeyer J said: The private conversation came to the knowledge of Mr Somerville by his being a party to it and not by his just hearing the recording of it. Whether or not the affidavit evidence is subject to objection in its present form is one matter, but on the voir dire question as to whether it should be excluded by reason of s13 of the Act I hold for the plaintiff.

35 And finally, I refer in this line of authority to the decision of Truss J in the Compensation Court of New South Wales in Udini v. Aldo t/as FineLine Joinery Pty Ltd and Anor [1998] 16 NSW CCR 418 where her Honour was considering a question of law referred to the court, namely, whether the tape recording of a conversation and a transcript thereof were admissible in proceedings before a commissioner. The tape recording was made by an applicant in proceedings seeking compensation in relation to a workplace injury. The contention of the respondent was that he was an independent contractor whereas the applicant was alleging employment. On the s.13 point Truss J said this: However, in my view, s13 has no application to the issue which arose before the Commissioner. Despite the heading to the section it is clear from subs(1) that it deals with the inadmissibility of evidence of a private conversation which has come to the knowledge of a person as a result of using a listening device in contravention of s.5. The applicant became aware of the conversation not as a result of the use of a listening device but because he was physically present and a party thereto. In my view what the section contemplates is a situation where the party seeking to adduce evidence of the conversation was not a party to it .

36 Each of these authorities seem to me to correctly reflect the reasonably plain language of s.13(1). That provision prevents a person giving evidence in any civil or criminal proceedings of (inter alia) a private conversation which "has come to the knowledge of (the) person as the result of the use of a listening device". It appears to me inconceivable that a person who is participating in and simultaneously recording a conversation could be so described. With respect I would adopt the line of authority to which I have referred and conclude that s.13(1) has no operation in relation to a party to a conversation. Accordingly, it does not relate to the taped conversations the subject of the present proceedings. It is necessary to refer further to the judgment of Truss J in Udini, in which her Honour also dealt with three South Australian authorities. 37 The first case is T v The Medical Board of South Australia [1992] SASR 382, an appeal before the full Supreme Court from the decision of a single judge on appeal from The Medical Board's findings of unprofessional conduct by a medical practitioner. The evidence before the Board had included a tape recording of a telephone conversation with the doctor, made by the patient who had levelled the charges that they had engaged in acts of sexual misconduct. An issue arose on the appeal as to whether the tape recordings should have been admitted into evidence having regard to the terms of the Listening Devices Act 1972 (SA). I would observe that the relevant terms of that Act, whilst having some similarity to the provisions operative under the New South Wales equivalent, are different although the protection of the lawful interests of a person utilising a listening device for the purpose of recording a conversation is expressed in terms that the "listening device is used . . . . in the course of duty of that person, in the public interest or for the protection of the lawful interests of that person". The judgments given by members of the Full Court conclude that on the facts of the matter the recording was not for the purpose of protecting the lawful interests of the patient, it being concluded that the conversation was "to compromise Dr T by telling him indecent jokes and suggesting an assignation, or trying thereby to woo him" (per Matheson J) or "to enable this embittered woman specifically to endeavour to set up and record a conversation environment which would tend to compromise Dr T" (per Olsson J). There is no point in these judgments which I find of assistance in resolving the present difficulty. 38 In R v Smith and Turner [1994] 75 A Crim R 327 Perry J considered the application of the exception based on public interest and protection of the lawful interests of the person concerned. The tape recording had been made with the support of the Police with a view to trying to obtain evidence against two persons accused jointly of murder. The recorder of the conversations had been involved in the plan, driving a boat from which the deceased person was alleged to have been dropped into the sea whilst alive. Perry J rejected the proposition that the recording was to protect the lawful interests of the recorder, but held that it was in the public interest that evidence be obtained of the commission of a serious offence by the accused if such an offence had been committed. Again, it seems to me nothing turns for present purposes upon that judgment. 39 The final judgment referred to by Truss J is that of Legoe J in the Supreme Court of South Australia In the Estate of Nicola Alvaro, Deceased, Public Trustee v Alvaro (unreported - South Australian Supreme Court No. 5183, 9 July 1995). The relevant point was the admissibility of a tape recording of a conversation made by a son of the deceased without his late father's knowledge and whether the recording was protected from the ban on admissibility provided in s7 of the South Australian Act on the basis that it was for the protection of the lawful interests of that person (the son). Perry J said: The evidence discloses that Tony Alvaro was concerned to confront his father with allegations that he had made about the alleged sexual misconduct of his mother with one of his brothers-in-law. This accusation was clearly disruptive to the family unity and to the family loyalties. Tony Alvaro was the only son. The evidence disclosed that the family background, particularly the background of the parents and their upbringing, was one in which such accusations were very important in the maintenance of family relationships. I am satisfied that in the whole of the circumstances Tony Alvaro operated the listening device, without his father's knowledge on the occasion when he recorded the conversation transcribed in exhibit D1, "for the protection of the lawful interests" of himself (s7(1)(b) of the Act). It was Tony to whom the deceased made the first allegations relating to the defendant's alleged misconduct with her son-in-law, and it was Tony who was attempting to restore some family peace and harmony by clearing up misconceptions or unjustified allegations against his mother.

40 Those observations illustrate the potential breadth of the phrase 'lawful interests' in the exclusion from the prohibition on relevant use of a listening device. The interests of the sort in the harmony of the family is, I would have thought more remote, in the statutory context, than the interests claimed here as justifying the view that the video recordings do not constitute an offence against the Listening Devices Act.

41 There is no issue concerning the fact that the recorded conversations the subject of these interlocutory proceedings were recorded by a listening device and without the knowledge and consent of the parties to them other than Mr Dimis. It follows that the recording of the conversation runs contrary, in this case, to s.5(1)(b) of the Listening Devices Act 1984 unless it fits within the exclusion provided by s.5(3)(b)(i). Similarly, the prohibition imposed by s.7(1) of that Act would operate again unless the exclusion provided in s.7(2) is satisfied; however, there is no doubt that s.7(2)(b) operates to cause the prohibition in s.7(1) not to apply, because the communication or publication of the conversation is being made in the course of these legal proceedings. 42 With respect to s.5(3)(b)(i), the exclusion operates in respect of: the use of a listening device by a party to a private conversation if . . . . a principal party to the conversation consents to the listening device being so used and

the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party.

43 The juxtaposition of the references in the subsection to the use of a device by a party and the consent to its use by a principal party would suggest superficially that the user is a person different from the principal party whose consent is given or required. That is, that the principal party consents to the use of the device by a party. However, the definition in s.3 of "party" and "principal party" both (in relation to a private conversation) include "a person by or to whom words are spoken in the course of the conversation". "Party" is defined to also include a person who, with the consent, express or implied, of any of the persons by or to whom words are spoken in the course of the conversation, records or listens to those words. The reference to "listens to" refers to the prohibition on communication or publication imposed by s.6 and is not presently relevant.

44 It would seem to follow from those definitions that the party who uses the listening device may be the principal party who "consents" to its use. Indeed, there seems to be no rational basis upon which it could be thought that one form of recorded conversations, namely one recorded by the principal party, should be prohibited and not the other (one recorded by another person with the consent of the principal party).

45 Accordingly, the focus for the purposes of s.5(3)(b)(i) is upon the recording being reasonably necessary for the protection of the lawful interests of either Mr Dimis, as the principal party who speaks in the conversations, or Scanruby, if Mr Dimis is to be viewed for the purposes of the conversations as the personification of Scanruby. Counsel were agreed that the point in time to which the determination as to whether the recording of the conversation was "reasonably necessary" must relate, is the time at which the recording was made. Of course, before the recording may be thought to be reasonably necessary there must exist a relevant lawful interest. Whether the principal party to the conversations in question is viewed as Mr Dimis or as Scanruby, both have for the purposes of these proceedings an interest which I consider may be described as a lawful interest. In the case of Mr Dimis, the interest is not a lawful right although it may be contended otherwise in the case of Scanruby. It appears that the conversation arose at a time when Scanruby and Mr Dimis were claiming a right to continue in occupation of the relevant premises, while Caltex, through its representatives, was intending to terminate the occupancy. The "interest" in pursuing what was perceived to be, whether rightly or wrongly in the final analysis, an entitlement to remain in occupation of the premises, would readily satisfy the lawful interest requirement. 46 In my opinion, the reasonable necessity for the recording, if assessed prior to its being undertaken, cannot be determined by reference to the material later recorded. It matters not whether the material is completely innocuous or damning; if the lawful interest is there and one party is claiming an earlier representation by the other which is denied, it would seem that the recording of conversations in which the position of the other party might be contradicted, whether induced by the recorder or not, would be "reasonably necessary" within the meaning of the section. 47 This view is consistent with a view taken by her Honour Judge Truss in Udini. Her Honour there found, on the balance of probabilities, that the recording by the applicant of the conversation in question was "reasonably necessary for the protection of the applicant's lawful interests, those interests being his entitlement to proper remuneration for the services performed for the first respondent . . . .". 48 I am satisfied that the applicant is not prevented by the Listening Devices Act from relating the relevant parts of the conversation the subject of this motion. Those parts of the conversations are confined, as Mr Donovan submitted, by the scope of the affidavits of the filed. That confinement disposes of any suggestion of oppression or prolixity. 49 I turn then to the arguments concerning s.138 of the Evidence Act 1995. The first is in substance an alternative argument for Caltex to the effect that if the recorded conversations are not excluded by the Listening Devices Act, they are nevertheless "improperly obtained" or "in consequence of an impropriety" as provided by s.138 of the Evidence Act. 50 The structure of s.138 requires, before a consideration of admissibility is undertaken, that the evidence be improper in one of the relevant senses referred to. If the evidence cannot be so described then it is admissible; if it can be so described the balancing exercise taking into account the considerations referred to in subs.(3) must be undertaken. An illustration of the difficulties involved in that matter is the judgment of Miles CJ in R v Truong where his Honour said (at 195): Section 138(3) lays down a non-exclusive list of matters which must be taken into account, leaving it for the Court to decide how such matters are to be taken into account and what weight of any such matters favour admission or non-admission. It may be implied that the weight of some matters favours admission. For instance, if the probative value was high, that would tend to favour admitting the evidence. If the impropriety or contravention were deliberate that would tend to favour not admitting the evidence. On the other hand, it is far from clear whether the "importance" of the evidence favours admission or non admission. Behaviour contrary to the International Covenant on Civil and Political Rights would appear to favour non admission. 51 The juxtaposition of each of the descriptors, "improperly" and "impropriety", with concepts of illegality support the construction that s.138 may bar the evidence (subject to the operation of subs.(3)) even though it has not been illegally obtained. Bedford v Bedford is an illustration of the application of both the Listening Devices Act and the Evidence Act in this way. Windeyer J, having observed that "It was not seriously contended that the evidence was not improperly obtained", concluded that the Listening Devices Act did not prevent the evidence being adduced nevertheless found that the conduct involved in its recording "was most serious conduct on the part of a solicitor and the client plaintiff. It was deliberate conduct, not some spur of the moment incident. I have no difficulty in finding that the undesirability of admitting the evidence outweighs the desirability of admitting it." 52 Another illustration of the operation of s.138(1) to exclude evidence held to be improperly but not illegally obtained is the judgment of Ireland J in Regina v. Kevin Chi Ho; Alan Tam v The Director of Public Prosecutions (unreported - Supreme Court of NSW - 15 May 1998). As his Honour records, the Commonwealth Director of Public Prosecutions had signed an undertaking, pursuant to relevant statutory provisions, that he would not prosecute Tam in respect of acts or omissions specified in a schedule to the document, provided Tam complied with certain conditions, one of which was that he would give evidence when called upon to do so in proceedings against an identified individual for an alleged offence against the Customs Act. Subsequently, Tam was to be called by the Director of Public Prosecutions to give evidence against other individuals who were his co-accused, but declined to do so. One of those individuals, Ho, sought an order restraining the Crown from calling Tam to give evidence in the Crown case against him. The Crown had indicated its intention to invoke the provisions of s.38 of the Evidence Act 1995 and seek leave to cross-examine him as an unfavourable witness in the event of his refusing to give evidence. The submission for Ho was that this procedure would render the evidence relating to Ho in the induced statement "improperly obtained" within the meaning of s.138 of the Evidence Act. Ireland J found that: "as a matter of public policy, persons who agree to assist authorities investigating serious crime, and in particular those who give evidence in the Crown case, should not only be fully appraised of the evidence they are to give and the occasions on which it is to be given, but should also be able to rely on the Crown not exceeding the boundaries of the agreement. This is especially so in circumstances such as the present where the sentencing judge in determining the discount on sentence, to which Tam was entitled, had in the forefront of his mind the limited value Tam's evidence may have in light of his declining to testify against his co-offenders. The importance, from the community's point of view of encouraging persons involved in criminal activity to afford assistance to authorities and to give evidence, together with the disadvantages and potential risk to such persons and their families, imposes upon the defendant and other authorities in similar position, a duty to make as clear as possible the extent of the obligations which will devolve upon the informant. In the present case, in light of the Crown proposal to call Tam in the prosecution of Ho, and seek to lead from him by invoking s.38, conversations disclosed in the coerced statement, that was not done.

For these reasons in the exercise of the discretion available to me, I find the plaintiff to be entitled to the injunction sought." 53 The circumstances in Bedford v Bedford and R. v Ho seem to me to be readily distinguishable from those present here. There was no inducement or agreement between the parties with respect to the giving of evidence such as in Ho or the deliberately misleading statement as a preface to the interview in Bedford. Here the circumstance was simply that conversations were secretly recorded by a party to them for the purpose of protecting what were considered to be contractual rights. If that conduct does not constitute a breach of the Listening Devices Act¸ the only matter going to an improper obtaining of the evidence is the fact of the secrecy itself. While it may be said that those engaged in the conversation were not put on notice, or "their guard", and that it might have been unfair so to act, such conduct I consider falls short of impropriety in the sense referred to in s.138. There appears to be no authority to suggest that unfairness should equate with impropriety in that sense, if unfairness be the appropriate description of the conduct. 54 Further, where the Parliament has applied its mind, through the Listening Devices Act, to the creation of an illegality which does not extend to a particular recording by virtue of its being, in effect, authorised for use in legal proceedings, particularly on the ground that the recording was "reasonably necessary", I find no room for the independent test of impropriety to exclude that material. In this particular case it seems to me that the provisions of the Listening Devices Act operate to remove the practical possibility of any such impropriety extending to the particular evidence. 55 In these circumstances I find that the evidence was not improperly obtained or obtained in consequence of an impropriety within the meaning of s.138. It follows that a consideration of the requirements of s.138(2) does not now arise. 56 Mr Ryan also submitted that s.138(2) would exclude the evidence. No particular submission was made as to the applicability of the provision. I am not able to find at this stage any aspect of the evidence would conform with the requisite aspects of that provision, such as "questioning", "conducting the questioning", "act . . . . . likely to impair . . . . the ability . . . . to respond rationally", or "false statement".

Similarly, I reject the submission, shortly made, that the evidence should cause the court to exercise on an interlocutory basis the discretion conferred by s.135 that the probative value of the evidence is substantially outweighed by the danger the evidence might be unfairly prejudicial to a party; misleading or confusing; or cause or result in undue waste of time. 57 Accordingly the motion is to be declined. 58 In these circumstances I do not intend to take the question of the reference to the Attorney General any further. The motion is dismissed with costs to the applicant as agreed or as assessed.

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