Voitenko t/as Access Party Hire v Zurich Australian Insurance Limited [2016] NSWSC 324

Supreme Court New South Wales

Medium Neutral Citation: Voitenko t/as Access Party Hire v Zurich Australian Insurance Limited [2016] NSWSC 324 Hearing dates: 7 December 2015 Date of orders: 24 March 2016 Decision date: 24 March 2016 Jurisdiction: Common Law Before: Hall J Decision: In determining whether the subpoena for production of recordings made by a listening device authorised under the Surveillance Devices Act 2007 has a legitimate forensic purpose can only be determined when a decision of court has been made on the question as to the "interest of justice" under s 43 of the Act. Catchwords: PROCEDURE – subpoena for production of recordings made by investigating police through the use of a listening device authorised by a warrant issued under the Surveillance Devices Act 2007 (the Act) – prohibition under s 40(1) of the Act against use, communication or publication of such recordings being "protected information" within s 39 of the Act – whether producing the recordings to the court could constitute a contravention of s 40(1) – whether an order can and should be made under s 43 of the Act permitting a party or parties to search the recordings "in the interests of justice" within s 43 – the procedure to be followed by a court in making a determination under s 43 – the issues to be considered in making such a determination which involves a balancing exercise Legislation Cited: Civil Procedure Act 2005 Evidence Act 1995 Income Tax Assessment Act 1936 Listening Devices Act 1984 National Health Act 1953 (Cth) Social Security (Administration) Act 1999 Surveillance Devices Act 2007 Telecommunications (Interception and Access) Act 1979 (Cth) Uniform Civil Procedure Rules Cases Cited: Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; 86 CLR 1 Commissioner for Railways v Small (1938) SR (NSW) 564; 55 WN(NSW) 215 The Commonwealth v Northern Land Council (1992-1993) 176 CLR 604 Hilton v Wells [1985] HCA 16; 157 CLR 57 Kizon v Palmer (No 2) (1998) 82 FCR 310 Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd; School Holdings Pty Ltd v Dayral Pty Ltd [2008] NSWSC 1100 National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 373 Osborne v R [2014] NSWCCA 17 Sankey v Whitlam (1978) 142 CLR 1 Sydney Water Corporation v PricewaterhouseCoopers [2008] NSWSC 361 Category: Procedural and other rulings Parties: Andrei Voitenko t/as Access Party Hire (First Plaintiff) Irene Voytenko trading as Russtyle Productions (Second Plaintiff) Zurich Australian Insurance Limited (Respondent/Defendant) NSW Commissioner of Police (Applicant) Representation: Counsel: K Emanuel (Plaintiffs) R Cavanagh SC (Respondent/Defendant) M Kumar (Applicant)