Violi v Berrivale Orchards Limited [2000] FCA 797

FEDERAL COURT OF AUSTRALIA

Violi v Berrivale Orchards Limited [2000] FCA 797 EVIDENCE – Evidence Act 1995 (Cth) – discretion to admit evidence illegally obtained – relevance of State law concerning admissibility of evidence – wide public interest in exclusion of evidence illegally obtained EVIDENCE – Listening Devices Act 1984 (NSW) – meaning of "necessary for the protection of the lawful interests" of a party – when a conversation "comes to the knowledge" of a person otherwise than as a result of the use of a listening device – relevance when court exercising federal jurisdiction Telecommunications (Interception) Act 1979 (Cth) s 7(1) Listening Devices Act 1984 (NSW) ss 5 and 13 Evidence Act 1995 (Cth) ss 48 and 138 Miller v Miller (1978) 141 CLR 269 He Kaw Teh v The Queen (1985) 157 CLR 523 R v Smith (unreported Supreme Court of South Australia, 1 December 1994) R v Scott (1996) 137 ALR 347 Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 465 Butera v Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180 Pedersen v Young (1964) 110 CLR 162 Eastman v The Queen (1997) 76 FCR 9 MARIO VIOLI, KEVIN VIOLI & DENNIS VIOLI trading as "VIOLI BROS." v BERRIVALE ORCHARDS LIMITED NG 317 of 1997 BRANSON J SYDNEY 14 JUNE 2000

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 317 of 1997

BETWEEN: MARIO VIOLI, KEVIN VIOLI & DENNIS VIOLI trading as "VIOLI BROS."

Applicants

AND: BERRIVALE ORCHARDS LIMITED

Respondent

JUDGE: BRANSON J

DATE: 6 JUNE 2000

PLACE: SYDNEY

REASONS FOR DECISION

INTRODUCTION 1 On Tuesday 6 June 2000 I gave orally an outline of my reasons for ruling that certain evidence was admissible in this proceeding. The evidence in issue includes recordings of conversations made without the consent of one of the parties to the conversations. I announced at that time that I would publish written reasons for the ruling in due course. These are my written reasons. 2 In the proceeding the applicants claim relief against the respondent for breach of contract and, or in the alternative, on the basis that the applicants have suffered loss or damage by unconscionable or misleading or deceptive conduct engaged in by the respondent (ss 51AA, 52, 82 and 87 of the Trade Practices Act 1974 (Cth)). The case of the applicants relies to a significant degree on conversations said to have occurred between the first applicant, Alec Mario Violi ("Mr Violi") and an employee of the respondent, Geoffrey Graeme Pumpa ("Mr Pumpa"). Some of the conversations relied upon by the applicants are admitted by the respondent to have occurred and some of the conversations are denied. As to most of the admitted conversations, there is a dispute as to the content of the conversations. 3 Two of the conversations relied upon by the applicants were recorded by Mr Violi. Mr Violi used a tape recorder in September 1995 to record a telephone conversation between himself and Mr Pumpa. Mr Violi also used a tape recorder in April 1996 to record conversation which took place at a meeting at which Mr Violi, Mr Pumpa and two other persons were present. In each case the recording took place in New South Wales. In neither case did Mr Pumpa consent to the use of the listening device. Mr Violi recorded each of the conversations with the purpose, should he consider it necessary, to publish the conversations, or a record of them, to persons who were not parties to the conversations should Mr Pumpa later "not tell the truth about what was happening" or should the respondent later deny the existence of a contract between the applicants and the respondent. Each of the conversations occurred after the date upon which the applicants allege that a contract was entered into between them and the respondent, and also after the dates of the alleged conduct and representations upon which the applicants rely for the purpose of their claims under ss 51AA and 52 of the Trade Practices Act 1974 (Cth). 4 Issues which arise in the circumstances include: (a) as to each of the recordings, whether it was made unlawfully; (b) as to any recording unlawfully made, whether evidence may be adduced from Mr Violi, whether as part of the applicants' case or in cross-examination, of the contents of the relevant conversation; (c) if Mr Violi is able to give evidence of the contents of a conversation which he recorded unlawfully is he limited to giving evidence from his recollection of the conversation unaided by recourse to the tape recordings or transcripts prepared from the tape recordings; (d) whether the tapes, or any of them, which record the respective conversations are admissible evidence in the proceeding; (e) whether transcripts prepared from the tapes are admissible evidence in the proceeding.