SEE v HARDMAN & ANOR [2002] NSWSC 234

New South Wales Supreme Court

CITATION : SEE v HARDMAN & ANOR [2002] NSWSC 234 CURRENT JURISDICTION: EQUITY FILE NUMBER(S) : SC 3682 of 2001 HEARING DATE(S) : 20, 21, 22, 25, 26, 27/3/02 JUDGMENT DATE : 21 March 2002

PARTIES : Louise Mary See - Plaintiff William Patrick Hardman - Defendant JUDGMENT OF : Bryson J at 1

COUNSEL : Oakes SC and Fendekian - Plaintiff Whittle SC and BJ Burke - defendant SOLICITORS : Watson & Watson - Plaintiff HIckson Wisewoulds - Defendant CATCHWORDS : EVIDENCE - Listening Devices Act - Evidence unlawfully obtained - plaintiff secretly recorded conference with family members and lawyers about circumstances of transactions made by her mother in 5 months before her death which conferred benefits on one grandson - conference was agreed to be without prejudice - plaintiff made recording to enable herself to consider fully and reflect on what was said - later she brought proceedings to remove trustee appointed by mother's will for not investigating circumstances of those transactions - trustee was her brother and father of favoured grandson - at the hearing the defendant waived without prejudice reservation, gave evidence of statements at conference and plaintiff tendered tape and transcript in reply - HELD - unlawful under Listening Devices Act s.5 because not reasonably necessary subs.5(3)(b) - not inadmissible under s.13 because within exception in subs.13(2)(b) conversation came to her knowledge otherwise than through the use of the recording - inadmissible under Evidence Act s.138 because illegal and an impropriety and in application of weighing exercise in subs.138(3). LEGISLATION CITED : Listening Devices Act 1984 (NSW) s.5, s.13 Evidence Act 1995 (N.S.W.) s.138 Violi v. Berrivale Orchards Ltd (2000) 99 FCR 580 CASES CITED : Scanruby Pty Ltd v. Caltex Petroleum Pty Ltd [2000] NSWIRComm 89 Amalgamated Television Services v. Marsden [2000] NSWCA 167 R v. Eade (2000) 118 A Crim R 449 DECISION : Tender of tape and transcript rejected.