Waverley Council v Tovir Investments Pty Ltd and Rappaport

ORGANISED BUSINESS ENTERPRISE 8In opening its case, the Council indicated that the respondents' alleged use of the subject premises was part of an organised business enterprise of providing accommodation involving also three other premises at 1A Kambala Road, Bellevue Hill, 86 Blair Street, North Bondi and 89 Watson Street, Bondi. Tovir owned the subject premises and the Blair Street premises and its shareholders/directors Thomas and Vivan Rappaport owned the other two premises. Viewed in isolation, the alleged use of each of the subject premises for the purpose of backpackers accommodation is self-evidently a business enterprise. The respondents objected not to evidence of that limited business enterprise but to evidence of a wider business enterprise involving the subject premises and the three other premises. 9The respondents objected to evidence of the wider business enterprise on the ground that it did not relate to the charges as particularised. I overruled the objection. The evidence in question goes to the existence of the wider business enterprise, its promotion and management, and the uses to which the properties were put. The contentious evidence comprised: Company and title searches (a)Tabs 8 and 15 of Exhibit B being company searches for Bondi International House Pty Ltd and Bondi Share House Pty Ltd. (b)Tab 9(c) - (f) inclusive of Exhibit B being title searches for: o 86 Blair Street, North Bondi o 1A Kambala Road, Bellevue Hill o 81 Watson Street, Bondi o 89 Watson Street, Bondi Inquiry agent's surveillance 2-8 March 2011 re the 5 premises (c)Affidavit of James Hurley of 12 November 2012 insofar as it relates to properties other than 6 Kent Street or 34 Imperial Avenue. (d)Affidavits of Gino Zitignani of 5 November 2012 and 12 November 2012 insofar as they relate to properties other than 6 Kent Street or 34 Imperial Ave. (e)Affidavit of John Raprager of 12 November 2012 insofar as it relates to properties other than 6 Kent Street or 34 Imperial Avenue. (f)DVDs of surveillance insofar as they relate to properties other than 6 Kent Street or 34 Imperial Avenue. Inquiry agent's surveillance 28 March 2011 re Imperial Avenue and 86 Blair Street (g)Paragraphs 29 to 45 of the affidavit of James Hurley of 19 March 2012 insofar as it relates to 86 Blair Street (and the corresponding DVD footage taken on 28 March 2011). Evidence of Internet web pages (h)Affidavit of Kirk Rick of 16 May 2012 at [6] and following and attached pages printed from internet websites and his affidavit of 19 February 2013 and annexures A and B to the affidavit of Rebecca Crabb of 16 April 2012. 10The pleading of contempt charges is governed by Part 55 of the Supreme Court Rules 1970, which applies to contempt proceedings in the Land and Environment Court: r 6.3 Land and Environment Court Rules 2007. Part 55 r 7 of the Supreme Court Rules provides: 7 Statement of charge A statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or summons. 11The leading case on the pleading of contempt charges is Coward v Stapleton [1953] HCA 48, 90 CLR 573 at 579-580 (citations omitted): ...it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations. 12Later authority seems to have hardened this expression of the general principle into a general principle that, because of provisions such as Pt 55 r 7 of the Supreme Court Rules, the alleged contemnor only has to answer the charge as particularised and that reliance cannot be placed on served affidavits to remedy any deficiency in pleading the contempt. The decision of the English Court of Appeal in Harmsworth v Harmsworth [1987] 3 All ER 816 has been influential. Nicholls LJ said at 821: So the test is, does the notice give the person alleged to be in contempt enough information to enable him to meet the charge? In satisfying this test it is clear that in a suitable case if lengthy particulars are needed, they may be included in a schedule or other addendum either at the foot of the notice or attached to the notice so as to form part of the notice rather than being set out in the body of the notice itself. But a reference in the notice to a wholly separate document for particulars that ought to be in the notice seems to me to be a quite different matter. I do not see how such a reference can cure what otherwise would be a deficiency in the notice. As I read the rules of court and as I understand the decision in the Chiltern case the rules require that the notice itself must contain certain basic information. That information is required to be available to the respondent to the application from within the four corners of the notice itself. From the notice itself the person alleged to be in contempt should know with sufficient particularity what are the breaches alleged. 13Legal principles to be applied in relation to the formulation of a statement of charge in contempt proceedings were summarised in Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155, 221 ALR 823 at [32] as follows (citations omitted): (a) appropriate safeguards must be applied to protect the rights of parties accused of contempt; (b) parties accused of contempt are entitled to know the gist or substance of the charges against them; (c) where there is a statement of charge, the gist or substance of the allegations must be contained within the statement of charge and any particulars, and any deficiency cannot be remedied [sic] by resort to affidavit evidence; (d) amendments to charges will only be allowed to correct minor deficiencies, in circumstances where the accused suffers no prejudice; (e) where amendments are allowed, accused parties must be given an opportunity to put anything they fairly wish to say as to the evidence, the law and the sentence as they pertain to the amended charges; (f) parties accused of contempt are entitled to conduct their case on the basis that the only charge which they are required to meet is that which has been particularised against them; and, (g) appellate courts should not speculate as to whether, if a charge had been properly drawn or amended, the evidence adduced would have been the same or the conduct of the accused party's case would have been unaltered. 14The following additional comment was made at [34], which is relevant to the principle in Coward v Stapleton quoted above at [11] that it is the "gist" of the accusation that must be made clear to the person charged: The concept of the "gist" of the charge is one that should be approached with some caution in the area of contempt, where precision in formulation is critical. 15The pleading of a charge of contempt in not complying with an injunction was considered in Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 per Basten JA who, after quoting from Harmsworth, said at [165] - [166]: ...in Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union (No 2) (1987) 15 FCR 64 at 74, Wilcox J stated: ...As Fox J said in Lazar v Taito (Australia) Pty Ltd (1985) 5 FCR 395 at 398: "The fact is, however, that what is charged is contempt of court in not complying with the relevant injunctions. The charges operate to indicate the injunction (or injunctions) relied upon, and to give brief particulars. The analogy between the charge required by the rules of court and a criminal charge is incomplete, because the person to whom an injunction is directed knows, with some precision, and specificity, what he is commanded not to do." Further statements to similar effect may be found in numerous cases, a number of which were summarised in Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155 at [32] (Tamberlin, North and Dowsett JJ). 16The principles relating to particulars of a contempt charge for disobeying a court order should not be stricter than the principles relating to particulars of a criminal charge. In the latter context, in Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 LGERA 361, 98 A Crim R 481 the New South Wales Court of Criminal Appeal per Gleeson CJ (with whom the other members of the court agreed) said that mere particulars are not essential elements of a criminal charge (at 365) and indicated as follows at 364-365 that departure from particulars of a criminal charge is not impermissible unless it is unfair or oppressive to an accused person (citations omitted): In a criminal proceeding, what the prosecution is required to establish are the essential elements of the offence charged. It is often appropriate, in order to provide an accused with fair notice of the case to be met, and in the interests of efficiency and economy in the conduct of the proceedings, for the prosecution to be obliged to provide further and better particular of the allegations made in the charge, whether the charge takes the form of a count in an indictment, or an allegation in a summons. There may be circumstances arising out of the nature of the evidence in a particular case, or the manner in which the case has been conducted, which will make it unfair or oppressive to an accused person to permit the Crown to depart from its particulars. Subject to that qualification, however, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, or the summons. Failure to establish a particular is not fatal. 17There is a distinction between particulars and evidence. A statement of charge does not have to identity evidence. 18In the present case the statements of charge include particulars of the use of the subject premises for the purpose of backpackers accommodation. They are identical as follows in relation to both premises and both respondents except that the concluding words of particular (e) ("during which...premises") appear only in the Imperial Avenue charge and not the Kent Street charge: During the said period: (a) The Premises have been used for the purpose of providing accommodation for tourists, travellers and persons engaged in recreational pursuits; (b) The Premises have had shared facilities such as communal bathrooms, kitchens and laundry facilities. (c) The Premises have generally provided shared accommodation in which there have been two or more persons staying in a room; (d) The Premises have generally provided temporary accommodation; (e) There have frequently been a relatively high number of occupants staying at the Premises, particularly during Autumn of 2011 and in the Spring-Autumn period of 2011 to 2012, during which time there have been up to 30 occupants at the one time occupying the Premises; (f) The relatively high number of occupants at the Premises has regularly caused the amount of waste generated and stored at the Premises to exceed the capacity of the bins provided and collected as part of Waverley Council's garbage and recycling service; and (g) The use of the Premises has involved loud parties frequently being held on the Premises, going late into the night, including on week nights. 19As against Tovir, the pleaded particulars of causing and permitting the use for the purposes of backpackers accommodation are as follows in relation to both premises: During the said period: (a) The First Respondent [Tovir] has at all times been the owner of the Premises; (b) The First Respondent is an investment vehicle for its directors and shareholders, Thomas Rappaport and Vivian Rappaport; (c) The First Respondent has derived income from the use of the Premises for the purposes of backpackers' accommodation; (d) Vivian Rappaport and Thomas Rappaport has each been present from time to time on the Premises during the period the Premises have been used for the purposes of backpackers' accommodation; (e) Vivian Rappaport has taken part in the management of the Premises and Thomas Rappaport has assisted in the maintenance of the Premises; (f) Michael Rappaport, the son of the [sic] Thomas Rappaport and Vivian Rappaport, has actively managed the Premises for and on behalf of the First Respondent, including by arranging the provision of temporary accommodation of the Premises for tourists, travellers and persons engaging in recreational pursuits (collectively "occupants"); showing the Premises to prospective occupants by taking and accompanying prospective occupants on inspections of the bedrooms and shared facilities on the Premises; charging and receiving payment of fees from occupants for temporary accommodation of the Premises, including by using a portable Eftpos machine to take payment from occupants at and outside the Premises; organising recreational pursuits for occupants of the Premises, including day-trips and recreational excursions, parties and other social events; and providing a private transport service to and from the Premises for prospective and actual occupants and arranging recreational day-trips and excursions for occupants; (g) The First Respondent has promoted the use of the Premises for backpackers' accommodation including through its associated business entity, "Bondi International House"; (h) The First Respondent, through its officers and agents, being aware that the Premises has been used for the purposes of backpackers' accommodation, has taken steps to promote and cause that use and has omitted to take any steps to prevent or curtail that use. 20As against Michael Rappaport, the particulars of causing the use for the purpose of backpackers accommodation are as follows in relation to both premises: During the said period: (a) The Second Respondent [Michael Rappaport] has actively managed the Premises, including by arranging the provision of temporary accommodation of the Premises for tourists, travellers and persons engaged in recreational pursuits (collectively "occupants"); (b) The Second Respondent, and persons assisting him in the management of the Premises, have shown the Premises to prospective occupants by taking and accompanying prospective occupants on inspections of the bedrooms and shared facilities on the Premises; (c) The Second Respondent, and persons assisting him in the management of the Premises, have quoted fees to prospective occupants for the occupation of each of the available bedrooms on the Premises on a weekly or monthly basis; (d) The Second Respondent has charged and received payment of fees from occupants for temporary accommodation of the Premises, including by using a portable Eftpos machine to take payment from occupants at and outside the Premises; (e) The accommodation arranged by the Second Respondent for occupants has generally been of a short term nature, involving frequent turnover of occupants on the Premises, often over a period of weeks and sometimes over a period of days; (f) The Second Respondent has been actively involved in the organisation of recreational pursuits for occupants of the Premises, including day-trips and recreational excursions, parties and other social events; (g) The Second Respondent has been involved in the promotion of the Premises as a place for temporary accommodation for tourists, travellers and persons engaged in recreational pursuits, including under the banner of "Bondi International House", including by internet advertising; (h) The Second Respondent has frequently provided a private transport service to and from the Premises for prospective and actual occupants including for the purposes of showing the Premises to prospective occupants; providing shuttle transportation services to and from transport links for occupants on their arrival to and/or departure from the Premises, and arranging recreational day-trips and excursions for occupants. (i) The Second Respondent, and persons assisting him in the management of the Premises, have frequently delivered mattresses to, and collected mattresses from the Premises. 21Section 55 of the Evidence Act 1995 defines evidence that is relevant in a proceeding: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence. 22Section 55 is undemanding. Its definition requires a minimum rational connection between the evidence and a fact in issue. It is unnecessary that it render a fact in issue probable or improbable. It is sufficient that it "could", not "would" affect the assessment of the probability. This rationale was explained in Australian Law Reform Commission, ALRC 26 Evidence Volume 1, (1985) at 641. For example, to prove that a person had a motive for a crime does not make it more probable than not that the person committed the crime, but it is still relevant. 23All facts appear to be in issue in these proceedings for the respondents have put the Council to proof of its entire case. 24The respondents objected that evidence of the wider business enterprise is inadmissible because it is not relevant to the charges as particularised in the statements of charge. That was said to be because the statements of charge do not expressly refer to the alleged organised business enterprise. 25The Council submitted that this evidence is relevant to the charges as particularised, and also that it would be artificial to isolate evidence concerning the promotion, management and use of each of the subject premises from such evidence pertaining to the wider business enterprise. In particular, the Council submitted that the evidence in question is relevant to: (a)the pleaded contempt that Tovir caused and permitted, and Michael Rappaport caused, the subject premises to be used for the purpose of backpackers accommodation; (b)pleaded particulars thereof concerning promotion and management of the subject premises, namely, particulars (f), (g) and (h) of the charge against Tovir and particulars (g) and (h) of the charge against Michael Rappaport; and (c)particular (a) of the charges against both respondents that the persons occupying the subject premises were travellers. 26I do not accept the respondents' additional submission that the allegation of a business enterprise amounts to an allegation of a criminal enterprise. That is not part of the Council's case. 27In my view, the contentious evidence is admissible because it is contextual and, in addition, cannot sensibly be disentangled so as to confine it to the subject premises. For those reasons, at least, it is within the charges as particularised and is admissible. 28In addition, in my opinion, evidence of this business enterprise is relevant to the charges as particularised substantially for the reasons submitted by the Council. That being so, it does not matter that such evidence is not referred to in the particulars of charge. 29The five premises were marketed on the websites of Bondi International House (BIH) and Bondi Share House (BSH). The following evidence suggests that they were associated with the respondents and promoted the properties with the respondents' permission or, at least, acquiescence, and that the alleged business enterprise existed: (a)Of the five properties marketed on the BIH and BSH websites, three were owned by Tovir and two by Tovir's directors and shareholders, Thomas and Vivian Rappaport. (b)Michael Rappaport is the son of Thomas and Vivian Rappaport. He also lived with them, at least during a period of surveillance from 2-8 March 2011. (c)At all material times the sole shareholder of BIH Pty Ltd was Thomas Rappaport. Its sole director was Michael Rappaport from 22 August 2007 to 17 March 2009. Thomas Rappaport was a director from 26 October 2011 to 25 October 2012. Michael Rappaport was a director from 17 May 2012 onwards. Thus, there was no director between 17 March 2009 and 25 October 2011. I infer that BIH Pty Ltd was being controlled in that period by its sole shareholder, Thomas Rappaport. (d)From the date of BSH Pty Ltd's incorporation on 30 March 2011, its sole director was Thomas Rappaport and its sole shareholder was his son Michael Rappaport. (e)The BIH and BSH websites refer to a contact as "Michael" and give his phone number. Other evidence establishes that that is a phone number of Michael Rappaport. (f)One of the websites states: "Our parent companies own all the properties - so we manage all repairs swiftly". This may be understood as a loose reference to Tovir because it owns three of the properties and to Thomas and Vivian Rappaport because they own the remaining two properties. It does not matter if the term "parent companies" is legally incorrect. (g)The BIH website refers to the property owner and to Tovir in the BIH terms of use: "For the security of the property owner and the head tenant the sub tenant agrees to pay the rent directly into the property owner's bank account. I agree to these terms and assure Tovir Investments P/L that I have sufficient funds in my credit card to meet these payments". (h)The post office box address for BIH on the BIH website is Tovir's address on Roads and Maritime Services registration records for Tovir's motor vehicles used by Michael Rappaport when apparently managing the premises and on bank statements for Thomas and Vivian Rappaport's "Tovir Investments Account". (i)The postal address for Bondi International House Pty Ltd on the BIH website is 1a Kambala Road, Bellevue Hill. It is owned by Thomas and Vivian Rappaport, Tovir's directors and shareholders. (j)The BIH website provided for payment of rent to BIH and gave its bank account details. Rental payments were made to BIH's bank account and monies were transferred from that account to Tovir's bank account. (k)The BIH website said that "The landlord generally limits shared rooms". The "landlord" may be understood as a reference to Tovir and Thomas and Vivian Rappaport. (l)The BIH Kent Street link includes a tenant testimonial that "Michael and Vivian were great". This appears to be a reference to Michael Rappaport and his mother. 30I consider that the contentious evidence of marketing (promotion) and management of the wider business enterprise is relevant when determining whether the respondents promoted and managed the subject premises, which is relevant to whether they caused and permitted the use of the subject premises. For example, there is evidence that Michael Rappaport transported in Tovir vehicles young people accommodated, or looking for accommodation, to and from premises promoted on the websites, as well as their luggage, and also mattresses. The websites promoted, and suggested that he was managing, the wider business enterprise. That, in my view, is relevant to determining whether he was managing the subject premises, which is particularised in the statements of charge. The evidence of the promotion and management of the wider business enterprise did not have to be particularised in the statements of charge because it is evidence of the charge as particularised but is not itself a particular of the charge. 31However, I do not consider that that evidence of promotion and management of the wider business enterprise, nor evidence of the use of other properties that form part of that enterprise, could rationally affect the assessment of the probability whether the subject premises were in fact used for backpackers accommodation. Consistently with that view, I have earlier ruled that evidence of use of the Imperial Avenue premises is inadmissible in the Kent Street proceedings and that evidence of use of the Kent Street premises is inadmissible in the Imperial Avenue proceedings. 32The respondents also submitted that the evidence of the wider business enterprise is not admissible because it offends the tendency rule in s 97(1) of the Evidence Act, which provides: 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. ... 33In my view, such evidence does not come within the tendency rule as expressed in the chapeau of s 97(1). I consider that the conduct of a business enterprise involving a number of other premises as well as the subject premises is not aptly described as a "tendency...to act in a particular way".

INTERNET MARKETING WEBSITES 34The respondents made a hearsay objection to the tender of copies of the internet websites that marketed the subject premises and the premises at 1A Kambala Road, 86 Blair Street and 89 Watson Street to prove the truth of the representations therein. No objection was taken to the tender of those websites as evidence of marketing. I overruled the objection in respect of the BIH homepage website, the BIH facebook website and the BSH website. I upheld the objection in respect of other websites. The respondents also objected that this evidence be excluded under s 135 of the Evidence Act. I overruled that objection also. 35The websites evidence comprises: (a)Affidavits of Kirk Rick of 16 May 2012 and 13 February 2013, and the copies of websites exhibited or annexed thereto including the following pages of that exhibit: o Re Bondi International House: pp 1-2; 25-36; 71-74; 87-124 (FB) pp 44-68; 125-136 (supplementary affidavit) o Re Bondi Share House: pp 3-24; 37-43; 76-86; 141-186 o Re others * Flatmates: pp 69-70; 137-138 * Hotfrog: pp 75; 139-140 * Share accommodation: p 187 * Easy roommate: pp 188-189 (b)Annexures A and B to the affidavit of Rebecca Jane Crabb of 26 March 2012 annexing copies of websites 36The websites appear to have been targeted towards young people. The BIH website appeared to have been targeted more towards overseas people than the BSH website. The BIH and/or BSH websites included representations referred to above at [29] and the following representations: (a)A free airport pickup is provided by "Our friendly driver". (b)Occupants can share rooms or have their own rooms. (c)Both websites advertised rooms for a minimum stay of three months although the BSH website elsewhere refers to a minimum stay of six months. However, BIH facebook includes posts from young people inquiring about accommodation for shorter periods. The BSH website refers to a bond of two weeks' rent, a lease termination fee of four weeks' rent and rent payable weekly or fortnightly through electronic funds transfer. (d)As they are a shared house provider, they are different to rental accommodation landlords in including the weekly rental living costs, covering electricity, gas, water, internet and cable TV. (e)There is a "house leader" in each house or apartment who will help with anything that may be needed. (f)"At Bondi International House you live with other people from around the world and your English language skills will improve rapidly during your stay". (g)Teaching institutions are close by including English language colleges. (h)The BIH social club link refers to "backpacker jobs". (i)The BIH facebook website contains inquiries from young people around the world seeking accommodation. (j)Tenants can join a social club, which conducts regular listed social activities including, for example, soccer games described as "Swedish v Brazilians"; (k)Details are provided about how tenants can move between properties managed by BIH without penalty. (l)Rent can be paid online and BIH bank account details are provided. (m)The websites contain photographs of the various premises and of organised social activities. 37It was common ground that the website marketing material, insofar as it was tendered to prove the truth of its contents, is excluded by the hearsay rule in s 59(1) of the Evidence Act unless it comes within an exception to the hearsay rule. Two exceptions to the hearsay rule were invoked by the Council: (a)the admissions exception in s 87 of the Evidence Act, and (b)the business records exception in s 69 of the Evidence Act. 38Section 59(1) provides: 59 The hearsay rule-exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. 39The hearsay rule does not apply to evidence of admissions: s 81(1) of the Evidence Act. Section 87(1) provides: 87 Admissions made with authority (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority, or (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. ... 40The chapeau to s 87 prescribes a low threshold for admissibility, namely, "if it is reasonably open to find" the matters in the succeeding paragraphs. 41In my opinion, the BIH and BSH websites are admissible to prove the existence of the facts represented in them as admissions under s 87(1)(a). In my opinion, having regard to the evidence of the association between the respondents and BIH and BSH referred to earlier at [29] and the content of the websites, it is reasonably open to find that when the representations in the websites were made, BIH and BSH had authority to make statements on behalf of the respondents in relation to the matters in respect of which the representations were made. 42I also consider that s 87(1)(c) applies. It is reasonably open to find from their association and the content of the websites, that BIH, BSH and the respondents had a common purpose of marketing the properties owned by Tovir and its directors/shareholders and managed by their son, and that the representations on the BIH and BSH websites were pursuant to that common purpose. 43I turn to consider the Council's submission that the BIH and BSH websites are also admissible as records of a business under s 69 of the Evidence Act, which relevantly provides: 69 Exception: business records (1) This section applies to a document that: (a) either: (i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business, or (ii) at any time was or formed part of such a record, and (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made: (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

(3) Subsection (2) does not apply if the representation: (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or (b) was made in connection with an investigation relating or leading to a criminal proceeding.

(4) If: (a) the occurrence of an event of a particular kind is in question, and (b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind, the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event.

(5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact). ... 44The definition of "business" in the Dictionary, Part 2, Clause 1 to the Evidence Act includes "a profession, calling, occupation, trade or undertaking". 45The term "records" is not defined in the Evidence Act. The rationale of the business records exception to the hearsay rule is that there is a strong incentive for accuracy where documents are part of the records of a business and are to be used by the business. That rationale fades in the case of advertisements for a business including advertisements on a website. Thus, in Roach v Page (No 27) [2003] NSWSC 1046 at [9] Sperling J said that a book published by a business to provide a history of the business, and "a flyer or a media advertisement or a website publication, extolling the virtues of the business ... [are] not a record of the business ... merely because [they] purportedly record activities of the business". 46The word "records" generally connotes internal records of a business, which should be distinguished from products of a business. In Australian Securities and Investments Commission v Rich [2005] NSWSC 417, 191 FLR 385, 23 ACLC 838 at [180] - [182] Austin J said: 180 The word "records" is not defined in the Act. The concept is a broad one, said to include "a history of events in some form which is not evanescent" (R v Jones [1978] 1 WLR 195 at 199,), although it connotes the idea that information is kept in an organised form accessible in the usual course of business (Karmot Auto Spares Pty Ltd v Dominelli Ford (Hurstville) Pty Ltd (1992) 35 FCR 560 at 565) and generally it connotes documents truly regarded as internal records in respect of the company's business (Atra v Farmers & Graziers Co-op Co Ltd (1986) 5 NSWLR 281 at 288). 181 In Roach v Page (No 15) [2003] NSWSC 939, the question was whether an article in the journal of association of mushroom growers was admissible as a business record. Sperling J held that the article was not a record of a business. He said: 5. The records of a business are the documents (or other means of holding information) by which activities of the business are recorded. Business activities so recorded will typically include business operations so recorded, internal communications, and communications between the business and third parties. 6. On the other hand, where it is a function of the business to publish books, newspapers, magazines, journals (including specialised professional, trade or industry journals) such publications are not records of the business. They are products of the business, not a record of its business activities. Similarly, publications kept by a business such as journals or manuals (say, for reference purposes) are not records of the business. 182 The distinction between the records of the business and the products of the business has been applied in other cases: Murray v RentWorks Ltd (No 5) [2003] NSWIRComm 54 at [41], [45], per Glynn J; Roach v Page (No 27) [2003] NSWSC 1046, at [9]-[11], per Sperling J. In the latter case it was held that publication on a website of information extolling the virtues of a business is not a record of a business, because it is not a recording of business activities in the course of carrying on the business. While there is good reason for the courts to treat records of business activities made in the course of carrying on a business as reliable and therefore admissible as business records, the same thinking does not extend to advertisements or documents produced for public relations purposes, which should be received with healthy scepticism. 47In Hansen Beverage Company v Bickfords (Australia) Pty Ltd [2008] FCA 406 at [133] Middleton J said that "The concept of a business record is an internal record, kept in an organised form accessible in the usual course of business, actually recording the business activities themselves and does not include the product of the business itself". 48The high water mark of the application of the business records provision may be the decision that a valuation report commissioned, received and kept by the plaintiff for the purpose of its business was a business record: Southern Cross Airports v Chief Commissioner of State Revenue [2011] NSWSC 349, 83 ATR 612 per Gzell J. After referring to Roach v Page (No 15), his Honour said at [41] - [44]: I do not understand Sperling J to have spoken categorically about what constituted a business record. In addition to the documents by which activities of a business are recorded I would include as business records documents relevant to the conduct of the business. The introductory words of s 69(1)(a)(i) of the Evidence Act 1995 (NSW) that the provision applies to a document that is, or forms part of, the records belonging to or kept in the course of, or for the purposes of a business, encompasses more than documents recording the activities of a business. For example, a valuation of the assets of a business for insurance purposes or for the purpose of determining appropriate depreciation rates does not record the activities of a business but it is kept in the course of, or for the purposes of, the business. It is preferable, in my view, not to seek to define a business record but to be guided to a decision whether or not a document is a business record by the terms of the statutory provision itself. 49In my opinion, the rationale of the business records provision and the authorities interpreting it lead to the conclusion that the marketing websites in this case are not admissible as business records. 50That leaves for consideration whether the evidence of admissions should nevertheless be excluded, as the respondents submit, under s 135 of the Evidence Act, which 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: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 51The submissions did not significantly advance any considerations which would establish the prescribed danger or inform the exercise of the discretion. I am not satisfied that that danger exists nor (if it does) that the discretion should be exercised.

EVIDENCE SUMMARY IN INQUIRY AGENT'S SURVEILLANCE REPORT ON 28 MARCH 2011 52The Council tendered a surveillance report dated 28 March 2011 by Robert Lancaster, an inquiry agent, for the period 2-8 March 2011. The last page above the signature is not pressed. 53The Council sought leave pursuant to ss 50 and 192 of the Evidence Act to rely on this surveillance report as a summary of surveillance recorded on DVDs, which the Council estimated would take 5 to 10 hours, perhaps more, to play. Given the summary, the Council only proposed to play a relatively small part of the DVDs to the Court. The respondents did not consent to leave being granted but made no submission in opposition to leave. However, they submitted that, if leave were granted, the Council must elect between tendering the summary and tendering and playing all the DVDs and could not do both. 54Sections 50 and 192 of the Evidence Act provide: 50 Proof of voluminous or complex documents (1) The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question. (2) The court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has: (a) served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary, and (b) given each other party a reasonable opportunity to examine or copy the documents in question. (3) The opinion rule does not apply to evidence adduced in accordance with a direction under this section.

192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. 55I directed that the applicant may adduce evidence of the contents of the DVDs in the form of the summary in the surveillance report, and may also play part of the DVDs to the Court. I am satisfied that it would not otherwise be possible to conveniently examine the DVDs because of their volume (length). I consider that granting leave would shorten the hearing time by about a day, that it would not be unfair to a party or a witness, that the evidence was relatively important, and I take into account the nature of the proceedings. It does not seem to me that there is a relevant power to make another order or direction in relation to the evidence and the parties did not submit that there was. I can see no justification for the election requirement submitted by the respondents. It seems fair to both parties that the DVDs are in evidence (even though not played) in case any question should arise as to whether the surveillance report accurately summarises their contents.

INQUIRY AGENT'S SURVEILLANCE 28 MARCH 2011 56I overruled the respondents' objection to the affidavit of James Hurley of 19 March 2012 and to the exhibit thereto being a DVD containing footage of his surveillance operation on 28 March 2011. Paragraphs 29 to 43 of the affidavit were not pressed. 57The objection was that (a) this evidence was obtained improperly or unlawfully insofar as it was obtained inside residential premises and, pursuant to s 138 of the Evidence Act, must not be admitted, or (b) alternatively, the Court should refuse to admit it pursuant to s 135 of the Evidence Act. 58Mr Hurley is a licensed private enquiry agent. In summary, his affidavit includes the following: (a)He was instructed by Mr Robert Lancaster, a private investigator retained by the Council to meet with Michael Rappaport and to do so in the company of a female operative. This was principally in order to attempt to gain access to properties Michael Rappaport controlled and to ascertain if they were being used for backpacking accommodation. He was instructed to follow all activity with a covert camera, to compile a diagram of the internal layout of buildings, then to take the video and diagram to Mr Lancaster and recount to him what he had seen or heard for the purposes of a report. (b)On 28 March 2011 Mr Hurley and his associate "Sandra", posing as persons looking for accommodation, were picked up at Bondi Junction in a car by Michael Rappaport and his companion "Maxim". From then on Mr Hurley operated his covert camera. Michael Rappaport said he would show them a few places around there. (c)Michael Rappaport evidently understood that Sandra was from Sweden because he asked her whether she was interested in living with other people from Sweden. She said she didn't mind. He asked her when she wanted to move in. She said as soon as possible. He said ok he would show her a few places around here. (d)Michael Rapport indicated that the houses at Bronte and Bellevue Hill were full. This reference to a house at Bronte appears to be to the Kent Street premises because there is other evidence of a sign at those premises which said "Welcome to Bronte House" and those premises are close to Bronte. He said that the best houses with the most vacancies were the two Bondi beach houses. This appears to have been a reference to the Blair Street and Imperial Avenue houses. (e)Michael Rappaport said that he ran a sort of dating service in real estate, he brought all types of people together and then separated them into different houses according to their likes and needs. He had 16 houses and matched the quieter people in one house and the louder party animals in another house. (f)He said that the best way to pay rent was by credit card on his Eftpos machine. He said he came around the house to collect two times a week. (g)He said everything was safe as he kept all the tenants' passports. He said he was looking more for long term tenants than short term tenants. (h)He said he had many houses, if they did not like one they could transfer to another and he could arrange the move. (i)With reference to the Imperial Avenue property, he said it consisted of two apartments over two levels. On the top level was a house full of French people. On the bottom was a mix of one Irish, one Swedish, one German, one Australian, one Chilean and one English person. He asked whether they were looking for a quieter place or a party house. Sandra said they were looking for a quieter house as she was a student. (j)He said he ran tours for everyone in the houses. (k)He said Maxim worked with him organising parties and people to fill the vacancies in the houses. (l)He said if they did not like one house they could transfer to another and if one was full they could be put on a waiting list. He said in the last two years he had more than 2,000 people stay with him. (m)He said he kept a huge database of people and could usually find someone to rent a room as it became vacant. He said to them that if they wanted to change houses and one was full they would be put on a waiting list until a vacancy came up in another one of his houses. (n)He indicated that the Imperial Avenue premises had two bathrooms and there were three to four persons per bathroom. (o)He said that as long as they gave two weeks notice they could leave when they wanted. (p)During the above journey and conversation they picked up a man with a Canadian or American accent who said he was from Canada and was looking for accommodation. (q)After visiting the Blair Street premises, he said he organised pest inspections to fumigate the houses each month for bed bugs, which was much cheaper than buying new mattresses. (r)He said he targeted students to rent the rooms. He did not like to take people on a working holiday visa as he had trouble with them in the past. He never took people that wanted to stay for less than 3 months and most of his tenants were staying 6 to 18 months. He said backpackers or holiday visitors are less likely to pay rent and get drunk every night. (s)They then visited the Imperial Avenue premises. They ascended outside stairs to an outside porch and from there entered the top floor apartment. There was a fridge in the hallway as well as in the kitchen. There were roughly eight or nine people living in the apartment. Some of the occupants had foreign accents. (t)They entered four bedrooms. Bedroom 1 had three single beds, an ensuite and much luggage. Bedroom 2 was a single room with a double mattress inside. Mr Rappaport said three boys lived in bedroom 1 and that a couple lived in bedroom 2. He said to a male in the living room that he had found him a job washing cars. Bedroom 3 had two bunk beds. Mr Rappaport said that the apartment had three bathrooms but Mr Hurley only saw two. Bedroom 4 had one double bed inside. (u)Maxim said 10 people lived in the apartment. Mr Rappaport said all the tenants shared a common area, and that there was a garage downstairs where people could drink and smoke. (v)Two males at the apartment spoke in a foreign accent. One said they had a big party a few nights ago and the police showed up after neighbours complained, so they had to close it down. Mr Rappaport said the neighbours hated the parties and it was a big problem for him with the Council and the police. (w)Next day Mr Hurley downloaded the DVD and drew layouts of the Blair Street and Imperial Avenue premises, which are annexed to his affidavit. He later recounted the events to Robert Lancaster while the latter typed a report. (x)When preparing his affidavit in 2012, he refreshed his memory by reading the report and reviewing the DVD footage. The DVD is exhibited to his affidavit. 59Section 138 of the Evidence Act provides: 138 Exclusion of 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: (a) the probative value of the evidence, and (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. Note. The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth. 60The respondents bear the onus of proving impropriety or illegality in the obtaining of the evidence: Robinson v Woolworths Ltd [2005] NSWCCA 426, 64 NSWLR 612 at [33]. 61The respondents submitted that, pursuant to s 138, Mr Hurley's evidence should not be admitted because it was obtained improperly insofar as it was obtained inside the Imperial Avenue premises. This is because the Council obtained indirectly by commissioning an inquiry agent what it could not have obtained directly given the provisions of ss 118A(1) and 118J of the Environmental Planning and Assessment Act 1979 (EPA Act) and similar provisions in s 191 and 200 of the Local Government Act 1993 (LG Act). 62The evidence Mr Hurley obtained before and after entry to the Imperial Avenue premises are unaffected by this objection. There is no suggestion that Mr Hurley's covert filming was itself unlawful under the Surveillance Devices Act 2007 or otherwise. That Act is stricter in its treatment of listening devices than optical surveillance devices. 63Sections 118A(1) and 118J of the EPA Act provide: 118A Power of entry (1) For the purpose of enabling a council to exercise the council's functions, the council may authorise a person, in writing, to enter any premises. ...

118J In what circumstances can entry be made to a residence? The powers of entry and inspection conferred by this Division are not exercisable in relation to that part of any premises being used for residential purposes except: (a) with the permission of the occupier of that part of the premises, or (b) if entry is necessary for the purpose of inspecting work being carried out under a development consent (including a complying development certificate), or (c) under the authority conferred by a search warrant, or (d) if an application for a building certificate has been made under section 149B in respect of premises used for residential purposes and entry is necessary for the purpose of inspecting the premises in order to issue a building certificate in accordance with sections 149A-149E. 64Similar provisions in ss 191 and 200 of the LG Act provide: 191 Power of entry (1) For the purpose of enabling a council to exercise its functions, a council employee (or other person) authorised by a council may enter any premises. (2) Entry may only be made at any reasonable hour in the daytime or at any hour during which business is in progress or is usually carried on at the premises.

200 In what circumstances can entry be made to a residence? The powers of entry and inspection conferred by this Part are not exercisable in relation to that part of any premises being used for residential purposes except: (a) with the permission of the occupier of that part of the premises, or (b) if entry is necessary for the purpose of inspecting work being carried out under an approval, or (c) under the authority conferred by a search warrant. 65There is no definition of "impropriety" in the Evidence Act. Section 138 does not vary the common law principles concerning the court's discretion to exclude evidence unlawfully or improperly obtained expressed in Ridgeway v The Queen [1995] HCA 66, 184 CLR 19, and those principles ought to be applied when considering what constitutes impropriety: Robinson v Woolworths Ltd at [22], [24]. In Ridgeway the joint judgment indicated that impropriety was to be understood as concerned with "the minimum standards which a society such as ours should expect and require of those entrusted with the process of law enforcement": at 36. The joint judgment said at 37: The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community. 66The joint judgment discussed the positive and negative considerations to which regard should be had by the trial judge when exercising the discretion and said, at 38: The relative weight to be given to them will vary according to the circumstances of the particular case. Thus, the weight to be given to the public interest in the conviction and punishment of those guilty of crime will vary according to the degree of criminality involved. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence - the public interest in maintaining the integrity of the courts and in ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement - will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings. When assessing the effect of the illegal or improper conduct, the relevance and importance of any unfairness either to a particular accused or to suspected or accused persons generally will likewise depend upon the particular circumstances (85). Ordinarily, however, any unfairness to the particular accused will be of no more than peripheral importance. 67In Rice v Tricouris [2000] VSC 73, 110 A Crim R 86 the defendant committed an offence by selling a tobacco product to a child under the age of 18 years, in circumstances where the child had been asked by the informant to make a "test purchase" of cigarettes. A magistrate dismissed the charge. On appeal, Beach J held that this evidence had not been improperly obtained and allowed the appeal. Beach J said: 21. It is clear from the evidence of the appellant and Amanda Smith that the respondent was not induced to sell the cigarettes. In all probability he would have been prepared to sell them to anyone who asked. ... 24 And true it is that the council engaged a 15-year-old child to procure the commission of the offence. But that can hardly be said to be improper conduct. To successfully prosecute the respondent it was necessary that the council obtain evidence that the respondent was selling tobacco products to children under the age of 18. 25 Amanda Smith was not committing any offence by purchasing the cigarettes. The situation in this case can be contrasted with that in Ridgeway where the actual importation of heroin into Australia was performed by police. 26 Further there was no insidious use or manipulation of Amanda by the appellant. The child and her mother were comprehensively informed of the procedure and ramifications of the test purchase. Amanda was hardly induced to take part in the purchase. She was asked to and agreed to as did her mother. 68Beach J noted the failure of the magistrate to take account of the policy of the law, the damage done to the health of children who smoke, the need to deter the selling of cigarettes to children, the difficulty of obtaining evidence to prove the commission of the offence and the absence of viable alternatives in relation to the successful prosecution of such offences: at [29]. He concluded, at [31]: I cannot accept that society would frown upon the use of a 15-year-old child to make a test purchase of cigarettes from a milk bar in the circumstances in which Amanda Smith did in the present case. Indeed I suspect that most reasonable members of the community would take the view that that was a most satisfactory way of attempting to stamp out the illegal sale of tobacco products to minors. 69In the remarkably similar case of Robinson v Woolworths Ltd the NSW Court of Criminal Appeal reached the same conclusion. After referring to Ridgeway, Basten JA said: 23 It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement". Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be "quite inconsistent with" or "clearly inconsistent with" those standards. Thirdly, the concepts of "harassment" and "manipulation" suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases (at 39) the joint judgment in Ridgeway referred to offences being procured or induced. ... 46 In my view the conduct complained of was not capable, as a matter of law, of constituting impropriety for the purposes of s 138 of the Evidence Act. The factors which support that conclusion have been discussed above, but may be summarised as follows. (a) The conduct of the law enforcement authority provided the opportunity for the commission of the offence, but did not involve the application of any form of pressure, persuasion or manipulation. (b) The conduct involved a straightforward request, made in a public place, in the course of a legitimate business and therefore involved no intrusion on individual rights or freedoms and certainly no harassment. (c) The two girls acted in the manner of ordinary members of the public seeking to purchase cigarettes. (d) In the case of an offence which does not involve a criminal intent, the policy against tempting people to commit crimes which otherwise might not have occurred is of limited significance. (e) Because the victim of a contravention of the law, namely the young person who successfully purchases tobacco products, is unlikely to complain about a contravention, the conduct constitutes a viable and practical means of achieving a better level of compliance than would be likely if law enforcement were dependent on receipt of complaints. (f) A properly run compliance program, backed by the possibility of prosecution where contravention occurs, is itself a reasonable and proper means of promoting compliance with the law. 70In See v Hardman [2002] NSWSC 234 Bryson J rejected under s 138 evidence of a tape recording unlawfully obtained in contravention of the Listening Devices Act 1984 and a transcript obtained in consequence of that contravention. His Honour said: 26 It can be seen from the text of subsection (1) that evidence may be obtained improperly or in consequence of an impropriety without there being any breach of a law, and that the concept of what is improper or what is an impropriety is a different concept to disobedience of statute law. In terms of ordinary behaviour and conduct when engaged in negotiations I see no room to doubt that it is an impropriety to make a secret recording of a conversation bearing on some business interest or other important interest, such as in this case entitlements to interests in a deceased person's estate. Such behaviour is of an altogether different kind to making notes during the course of the conversation where others present can observe that notes are being taken, and it is also altogether different to preparing for one's own use after a conversation a memorandum or note of what one then remembers took place. 27 In ordinary business and social behaviour there is, in my understanding, a very strong expectation that there will not be a secret recording of a conversation but that any process of recording will be revealed, so as to give those recorded an opportunity to decide whether or not they will participate. If I conjure up for myself what could be expected to happen at the meeting of 10 May 2001 or what could be expected to happen in ordinary and reasonable conduct of persons in this community participating in a business meeting of any kind, I feel no doubt that discovery in the course of a meeting that a secret recording was being made would disrupt proceedings, with a high likelihood that the discovery would lead to the immediate withdrawal of those not involved in making the recording. The view of ordinary reasonable people in Australian society that behaviour of a particular kind is an impropriety is what makes it an impropriety. What the community thinks about secret recordings is, in my view, altogether clear and furnishes the explanation for the enactment of legislation such as the Listening Devices Act, notwithstanding the availability of a quite different view of the significance of making secret recordings. 28 I understand, both from such events as the enactment of the Listening Devices Act and also from my general understanding of values and behaviour in the community of which I must take notice, that such conduct is not tolerated and is regarded as an extreme impropriety. The nature of the breach of an Australian law and the nature of the impropriety have a part in the weighing exercise and in appraisal of the undesirability of admitting evidence to which subsection 138 (1) refers. I am of the view that the tape is evidence which was obtained improperly and that the transcript is evidence which was obtained in consequence of an impropriety. 71In Lin v Fairfield City Council [2007] NSWSC 568, 159 LGERA 264 the appellant had been convicted in the Local Court of carrying out development for the purposes of a brothel, being prohibited development, at premises in breach of the EPA Act. He was convicted on the evidence of an unlicensed private inquiry agent, commissioned by the Council, who paid for sex at the premises. On appeal, Preston CJ held that this evidence was not improperly obtained under s 138(1) of the Evidence Act. His Honour held that it had to be shown that the Council, being a body entrusted with powers of law enforcement in relation to planning and environment laws, is under a minimum standard which society expects and requires, not to engage an unlicensed private inquiry agent to gain evidence in the enforcement of these laws. His Honour held that it was not improper to ensure that the sexual act for payment occurred in order to prove commission of the offence of carrying out of development for the purposes of a brothel, which includes using the place for the purpose of prostitution. 72The primary consideration in deciding upon the admissibility of unlawfully or improperly obtained evidence is whether there has been deliberate disregard of the law as opposed to an accidental or inadvertent contravention. If it is the latter, then the higher the probative value of the evidence and the greater the seriousness of the crime, the greater the public interest in its admission. The weight to be given to these considerations cannot be resolved in the abstract but depends upon the circumstances of the case and the interplay between the different factors. See Parker v Comptroller-General of Customs [2007] NSWCA 348, 232 FLR 362 at [59], [62] - [63]. 73In the present case, the question is whether Mr Hurley's evidence of what he saw and filmed inside the premises was obtained improperly. There are competing considerations. 74Considerations weighing in favour of a conclusion that it was obtained improperly include the following: (a)entry was obtained under a pretext of looking for accommodation; (b)the filming of what was seen was covert; (c)the Council deliberately engaged the agent to carry out a covert surveillance; (d)a Council officer could not have lawfully entered these residential premises under that pretext: the Council would have to have complied with s 118J of the EPA Act and s 200 of the LG Act; and (e)no search order was sought. 75Considerations weighing against a conclusion that the evidence was obtained improperly include the following: (a)There is substantial public interest in the admission of the evidence because the administration of justice depends upon obedience to court orders and direct evidence of what was going on inside the premises was highly desirable. (b)The Council had a responsibility to police the orders of the Court made against the respondents to ensure that they were obeyed. (c)The Council had received information of observations concerning the outside of the premises, which suggested, to say the least, that the respondents were disobeying the orders of the Court. (d)Giving prior notice of entry to inspect the interior of the premises carried with it, I think, a real risk of a cover-up. This is fortified by the evidence of a neighbour, Mrs Perry, suggesting that no sooner had Council officers, including Mr Banfield, left the Imperial Avenue premises following an inspection on another occasion, than Michael Rappaport and his assistant turned up in a truck and proceeded to unload and deliver mattresses and bedding into the premises. (e)Mr Hurley and his associate acted in the manner of ordinary persons seeking accommodation (except for the covert filming). (f)There was no prejudice to the occupants. (g)If there was any disregard of the law, I think it was inadvertent rather than deliberate. 76On balance, I am persuaded that the evidence was obtained improperly. The most significant factor in reaching this conclusion is that a search warrant was not sought in a statutory context which allowed for entry to residential premises with a search warrant. Had a search warrant been sought but refused, I may have taken a different view given the information that the Council had received suggesting that the orders of the Court had not been obeyed. 77It is then necessary to carry out the balancing exercise required by s 138 to determine whether or not to nevertheless admit the evidence. The question is whether "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": s 138(1). Without limitation, the Court is required to take into account the matters listed in s 138(3). My evaluation of those matters is as follows: (a)the probative value of the evidence is high because it is evidence of what was going on inside the premises; (b)the evidence is important in the proceedings given the definition of "backpackers accommodation"; (c)the nature of the proceedings is that of contempt for breach of orders of the Court. The defence appears to be one of putting the Council to proof of its case. The integrity of the administration of civil justice depends upon obedience to court orders; (d)in my opinion, in the particular circumstances of this case, the impropriety was relatively minor; (e)the pretext and covert filming were deliberate but there is no evidence that the agent or the Council believed it to be an impropriety; (f)It was difficult, if not impossible, to obtain the evidence except under a pretext or with a search warrant. A search warrant was not sought or obtained. In the circumstances of this case, it was appropriate to obtain the evidence without prior notice because of a real risk that the evidence might otherwise be concealed. 78Additional matters referred to above at [74] - [75] should also be taken into account. 79On balance, in my opinion, the desirability of admitting the evidence outweighs the undesirability of admitting the evidence in the way in which the evidence was obtained. Therefore, the evidence is admissible under s 138. 80The respondents also objected that the evidence should be excluded under all three paragraphs of s 135 of the Evidence Act (set out above at [50]). 81The probative value of the evidence is substantial and I am not satisfied that the prescribed danger exists nor, if it does, that it substantially outweighs the probative value of the evidence. The above discussion of some of the considerations under s 138 fortify these conclusions.

POLICE OFFICER'S STATEMENT 82I overruled the respondents' objection to parts of the statement of Senior Constable Alexander Ruebner. The statement concerns his response and that of other police officers to a noise complaint concerning the Imperial Avenue premises on 22 March 2012. He and another officer heard loud dance music coming from the top floor apartment. They heard a person with a foreign accent say: "Fuck the police, they can't come in". He knocked on the door several times but it was not opened. He went away and obtained a warrant to enter the premises under s 280 of the Protection of the Environment Operations Act 1997 (POEO Act). Armed with the warrant, he and other police officers gained entry to the premises through the open rear door. He walked through the unit and noticed there were between six and seven rooms. The two bigger rooms contained two single bunk beds resulting in up to four persons being able to sleep in each room, however only two of the beds were occupied at the time of entry. The other rooms had between two and three single beds or mattresses on the floor. He estimated that about 16 to 18 persons can reside in the one unit given the amount of bedding available. Photographs were taken. Ten persons were residing in the premises at the time. He recorded their details and issued them all with noise abatement notices for 28 days. Two laptops used to play loud music were seized. Michael Rappaport arrived and they had a conversation. 83The objection was to the last sentence of paragraph 11 of Senior Constable Ruebner's statement, which reads: "I estimated that about sixteen (16) to eighteen (18) can reside in the one unit given the amount of bedding available", paragraph 12 which refers to an officer taking photographs, and exhibit 1 referred to therein which are those photographs. The photographs are of several bedrooms showing multiple beds in each, mattresses in a stairway, persons in a lounge area and a garage area with chairs and empty bottles on the floor (there were also photographs of the toilet and bathroom on which the Council does not rely). Other evidence indicates that the stairway led to the ground floor and that the door on the ground floor providing access to the stairway was sealed off. 84The objection was that (a) this evidence was obtained improperly or unlawfully and, pursuant to s 138 of the Evidence Act, must not be admitted, and (b) alternatively, pursuant to s 135 of the Evidence Act, the Court should refuse to admit it. 85The allegation of unlawful or improper conduct is founded on an alleged contravention of s 281(1) of the POEO Act. Section 281 provides; 281 Powers of police after entry by warrant (1) Limited powers If a police officer enters any premises under a warrant granted under section 280 for the purpose of giving a noise abatement direction or investigating whether a noise abatement direction has been contravened, the police officer may: (a) take only such action at the premises as is reasonably necessary: (i) to give the noise abatement direction or investigate whether such an offence has been committed, and (ii) to exercise any power under subsection (2) or any lawful power to arrest a person, and (b) remain at the premises only as long as is reasonably necessary to take that action. (2) Giving of names and addresses may be required If a police officer believes on reasonable grounds that offensive noise is being emitted from any premises or offensive noise has, within the past 7 days, been emitted from any premises, the police officer may require any person: (a) whom the police officer believes on reasonable grounds to be the occupier of the premises or to be, or to have been, causing or contributing to the emission of the offensive noise, and (b) to whom the police officer has given an oral or written warning of that person's obligation to furnish the information under this Act, to furnish the police officer with that person's name and address and with the name and address of the occupier of the premises if that person is not the occupier. ... 86The magistrate's record of a complaint requesting the issue of a warrant to enter premises noted Senior Constable Ruebner's belief that offensive noise was being emitted from the premises and that he requested the grant of the warrant because he believed it was necessary to enter the premises immediately in order "To investigate whether a noise abatement direction has been contravened". It records the names of the persons involved as Laura Douglas plus about four to five males. The magistrate's notice of grant of warrant to enter premises records that it was granted subject to a term that it was to "enter premises to investigate whether noise abatement direction given 15/3/12 has been contravened". This was a noise abatement direction issued to Laura Douglas on 15 March 2012 for 28 days. So the context is action of police seven days into that 28 day period. 87A search warrant must be executed strictly in accordance with its terms and must be interpreted from the position of an ordinary person reading it: Slaveski v Victoria [2010] VSC 441 at [156], [158]. Kyrou J held at [192] that a search warrant implicitly confers on police officers the power to do anything that is incidental to, and for the purpose of, exercising those powers, including an implied power to take video footage or photographs of the execution of the warrant provided that: (a) the activity, object or part of the premises being filmed or photographed is incidental to the exercise of the express powers conferred by the warrant ("incidental nexus requirement"); and (b) the filming or photographing of that activity, object or part of the premises is for the purpose of exercising those express powers ("proper purpose requirement"). 88His Honour said at [194]: In my opinion, the incidental nexus requirement will be satisfied where the video footage shows: (a) the police knocking on the door of the premises, introducing themselves to the occupier and then entering the premises; (b) the officer in charge introducing the search team to the occupier, serving the warrant and explaining its terms to the occupier; (c) the police conducting an initial security sweep of the premises; (d) the exhibits officer setting up the exhibits kit; (e) officers searching the premises and conducting discussions with the occupier; (f) any seized items in their original locations; (g) seized items being moved from their original locations, being photographed, being entered in the property seizure record, being labelled and being placed in exhibit bags; (h) the arrest of any person apparently having possession, custody or control of a seized item; or (i) the police packing up the exhibits kit and departing the premises with the seized items in their possession. This list, which is intended to be illustrative only and not exhaustive, is also applicable to the taking of still photographs. 89As the disjunctive "or" was used between (h) and (i) in that quote, I understand that his Honour did not stipulate that video footage necessarily had to cover all those matters. 90His Honour said at [196] - [197]: The proper purpose requirement will be satisfied where, for example, the execution of the search warrant was filmed or photographed for the purpose of creating a record for use as evidence in support of charges that may be laid against the occupier of the premises or another person. On the other hand, the requirement will not be satisfied where, for example, the filming or photographing was carried out for the purpose of selling the images for profit. An improper purpose will render the taking of the video footage or photographs unlawful, and thus a trespass, even if the images are confined to activities, objects or parts of the premises that are incidental to the exercise of the express powers conferred by the search warrant and would therefore satisfy the incidental nexus requirement. 91The respondents submit that having entered the premises lawfully: (a)the action of Senior Constable Ruebner in then estimating how many people resided at the premises and the action of police officers in looking at and photographing the bedrooms, toilet, bathroom, stairwell and garage was a breach of s 281(1)(a) of the POEO Act because it went beyond taking only such action at the premises as was reasonably necessary to investigate whether the noise abatement notice had been contravened; (b)consequently, there was also a breach of s 281(1)(b) because the police did not "remain at the premises only so long as is reasonably necessary to take that action" (of investigation); (c)therefore, the evidence in issue was obtained unlawfully or improperly and, pursuant to s 138 of the Evidence Act, is not to be admitted. 92Under the search warrant I think the police had power to look through the premises to see what devices there may be that emanated sound in breach of the noise abatement notice and to ascertain that they had located all the persons believed to be occupiers or to have been causing or contributing to the offensive noise. There was power to require such persons to furnish their names and addresses and the names and addresses of the occupiers: s 281(2) POEO Act. The investigation might have suggested a nexus between the number of occupants and the emission of noise, and might have included ascertaining whether there had been any change made to the premises since the noise abatement notice was issued that might contribute to a contravention. In my view, photographing what they saw was incidental to their powers. If it is suggested that they had an improper purpose of obtaining evidence for these proceedings or investigating a complaint that they had received concerning operation of the premises as an illegal hostel, noise and anti-social behaviour, in my view there is no sufficient evidentiary basis for the suggestion to be accepted. 93In my opinion, the respondents have not discharged their onus of establishing that the evidence was obtained unlawfully or improperly. Therefore s 138 of the Evidence Act is inapplicable. 94If I am in error, then I would admit the evidence under s 138 because, in my view, the desirability of admitting it outweighs the undersirability of admitting the evidence obtained in the way that it was. In reaching that conclusion, my evaluation in respect of the matters for consideration mandated by s 138(3) is as follows: (a)the probative value of the evidence is high; (b)the evidence is important in the proceedings; (c)the nature of the proceedings is a charge of contempt in disobeying court orders; (d)the impropriety or contravention was minor, as discussed above; (e)the impropriety or contravention was not deliberate; (f)there is no suggestion that s 138(3)(f) applies; (g)it was difficult, if not impossible, to obtain the evidence without the impropriety or unlawfulness. 95Section 135 of the Evidence Act, on which the respondents also relied to alternatively exclude the evidence, was touched on only lightly in submissions. I cannot see any basis for its application.

CONCLUSION 96For these reasons, I made the rulings on the respondents' objections to evidence to which I have referred. 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: 27 March 2013