Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 465

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 465 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 26 May 2000 JUDGMENT DATE : 26 May 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J at 1

I Barker Q.C. M R Hall (Plaintiff) COUNSEL : R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Admissibility - Listening Devices Act, 1984 s 5(3)(b)(i) - requirement for existence of reasonable necessity and lawful interests at time of recording - T6509 LEGISLATION CITED : Listening Devices Act, 1984 DECISION : See paragraph 24

DLJT: 164 (Ex Tempore - Revised) [2000] NSWSC 465

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

FRIDAY 26 MAY 2000

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Admissibility - Listening Devices Act, 1984 s 5(3)(b)(i) - requirement for existence of reasonable necessity and lawful interests at time of recording - T6509)

1 HIS HONOUR: Yesterday I delivered a ruling in connection with what are described as the "Elomari tapes", in the context of the questions asked of the then witness, Detective French (NSWSC 451: DLJT 162). On 28 February in the context of an express tender of the tapes themselves, I held them to be inadmissible (NSWSC 98: DLJT 103). 2 This morning further submissions were advanced by Mr Stitt Q.C., as to their admissibility. 3 Earlier rulings have been concerned with the recording by listening devices of conversations pursuant to warrants issued under the Listening Devices Act, 1984. The warrant, in general terms, renders lawful the recording of a conversation, and upon its acceptance into evidence, is a step towards the proof of the recording and the admissibility of its contents. 4 The submissions made this morning were in another context. Section 5 of the Listening Devices Act provides that: "(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". 5 That is the prohibition provided by the statute. Section 5(3) provides: "Subsection 5(1)(b) does not apply to the use of a listening device by a party to a private conversation if…