Supreme Court New South Wales

• Medium Neutral Citation: Rezaiee v Australian Broadcasting Corporation (No 2) [2014] NSWSC 1656
• Hearing dates: 14 November 2014
• Decision date: 21 November 2014
• Before: McCallum J

Decision

Plaintiff's application for leave to disclose or use the defendant's discovered documents 15 to 20 otherwise than for the purposes of the conduct of these proceedings refused

• Catchwords: PRACTICE AND PROCEDURE - discovery - obligation of a party not to disclose or use discovered documents otherwise than for the purposes of the conduct of the proceedings - covertly obtained audio and video recordings used by investigative journalist for purpose of broadcast - copies obtained as a result of discovery in defamation action - whether leave should be granted to allow copies to be provided to police for purpose of investigation of alleged offences under the Surveillance Devices Act - consideration of competing interests of justice
• Legislation Cited: Uniform Civil Procedure Rules 2005; Surveillance Devices Act 1999 (Victoria); Surveillance Devices Act 2007 (New South Wales)
• Cases Cited: Bailey v Australian Broadcasting Corporation (1995) 1 Qd R 476; Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
• Category: Interlocutory applications
• Parties: Mohammad Mehdi Rezaiee (plaintiff); Australian Broadcasting Corporation (defendant)
• Representation: Counsel: R Rasmussen (plaintiff); ATS Dawson, A Rao (defendant); Solicitors: Jackson Lalic Lawyers (plaintiff); Australian Broadcasting Corporation (defendant)
• File Number(s): 2012/277583
• Publication restriction: Parties to be heard as to continuation of non-publication order

Judgment

1 HER HONOUR: These are proceedings for defamation arising out of the broadcast of an episode of the programme, Four Corners on ABC television. The programme was an investigative piece relating to allegations of organised people smuggling. It included extracts of covertly-obtained audio recordings and video footage of the plaintiff.

2 Recordings of that nature are included amongst the documents discovered by the defendant in the proceedings. The plaintiff alleges that the making of those recordings, and their publication in the matter complained of, possibly reveal the commission of criminal offences.

3 By notice of motion filed 26 August 2014, the plaintiff seeks leave to provide the discovered documents to the Victorian Police for the purpose of the investigation of possible criminal activity. Leave is required because the documents were obtained by the plaintiff only as a result of their discovery by the defendant in these proceedings. Disclosure of that material otherwise than for the purposes of the conduct of these proceedings is accordingly not permitted except by leave of the court. This judgment determines the application for leave.

Circumstances in which the application is made

4 The matter complained of is alleged to have been first broadcast on 31 May 2012. A transcript of the episode, provided in Schedule A to the plaintiff's further amended statement of claim filed 13 December 2012, apparently refers to two instances of covert recordings or surveillance. First, the investigative journalist, Ms Sarah Ferguson, says (at line 76):

In the same year, 2010, Four Corners had been in Indonesia tracking down Abu Ali al Kuwaiti. Using a hidden camera we filmed Abu Ali al Kuwaiti in a restaurant in Jakarta.

5 Following what appears to be a reference to an extract of that footage, Ms Ferguson continues:

The secret filming in 2010 was done for us by an Iraqi refugee, Hussain Nasir.... Now living in Australia, Hussain was determined to work with us again.

6 Later in the programme, Ms Ferguson says (at line 455):

A few weeks ago some of the relatives in Melbourne went back to the smugglers' agent to ask him for news - they recorded the meeting:

MEHDI RAEZAIE: When people are sitting in a ship, in a boat when you move 50 kilometres, the boat belongs to Allah. Nobody can give you guarantee.

7 That extract is repeated in the second matter complained of (an online ABC news article about the first matter complained of, published on 5 June 2012). The reference to its having been recorded "a few weeks ago" places it in April or May 2012.

8 Concern as to the possible illegality of those recordings was expressed at least as early as 5 September 2012, when the statement of claim in these proceedings was filed. The pleading included, by way of particulars of aggravated damages, contentions that the plaintiff was filmed and his voice recorded by a hidden camera in his own home without his knowledge or consent; that the covert filming constituted a criminal offence contrary to s 6 of the Surveillance Devices Act 1999 (Victoria) and that the defendant's publication of that unauthorised footage constituted an offence contrary to s 11 of the Act.

9 The ABC's defence to the claim includes a plea of truth.

10 The ABC's list of documents was filed on 12 November 2013. Items 15 to 20 of that list relate to the audio and video recordings, as follows:

15 Disc containing copy of recorded telephone conversation between Abdul Fateh and the plaintiff (28 April 2012).

16 Email from Qasiq Matin to Sarah Ferguson attaching translation and notes of conversation recorded between Abdul Fateh and the plaintiff (22 April 2012).

17 Excerpts of transcript of conversation recorded between Abdul Fateh and the plaintiff (undated).

18 Discs containing copy of recordings of meeting at the plaintiff's home (28 April 2012).

19 Translation/notes of recording of meeting at the plaintiff's home (undated).

20 Email from Wasiq Matin to Sarah Ferguson attaching translation/notes of conversation recorded between Abdul Fateh, Azita O'Keefe and 'Iraqi Guy' (3 May 2012)

11 By letter dated 25 July 2014, the solicitor for the plaintiff sought the defendant's consent for copies of those documents to be provided to the Victorian police for the purpose of reporting possible breaches of the Victorian Surveillance Devices Act.

12 On 15 August 2014, the matter was allocated a hearing date in May 2015.

13 The plaintiff's notice of motion seeking leave to provide copies of the recordings (and related documents) to police was filed on 26 August 2014. As at that date, the plaintiff's solicitor had received no written response to his letter seeking the defendant's consent to that course. In discussions between counsel, it had been indicated verbally on behalf of the ABC prior to that date (during the week of 5 August 2014) that the ABC was not willing to provide the consent sought.

Principles governing the application

14 Rule 21.7(1) of the Uniform Civil Procedure Rules 2005 provides:

No copy of a document, or information from a document, obtained by party A as a result of discovery by party B is to be disclosed or used otherwise than for the purposes of the conduct of the proceedings, except by leave of the court, unless the document has been received into evidence in open court.

15 The ABC's discovered documents 15 to 20 have not been received into evidence in open court.

16 The plaintiff characterised his application for leave as an application "to be released from his implied undertaking not to use documents obtained from the defendant through the discovery process for any ulterior or collateral purpose". It is not uncommon to describe the constraint upon the use or disclosure of discovered documents in those terms. However, as noted by the High Court in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, the description of the relevant obligation as one arising from an "implied undertaking" is misleading "unless it is understood that in truth it is an obligation of law arising from circumstances in which the material was generated and received": at [102] per Hayne, Heydon and Crennan JJ.

17 Rule 21.7 recognises the Court's power to grant dispensation from that substantive obligation. The power must of course be exercised with due regard to the public interest the vulnerability of which gives rise to the obligation. The obligation arises in response to the recognition that the interlocutory process of discovery is "an invasion of a private right to keep one's documents to oneself" (Hearne at [107], citing Lord Denning). The public interest in the administration of justice comprehends the protection of that private right, allowing the invasion only for the limited purpose for which the discovery has been compelled.

18 It may readily be accepted that there is a countervailing public interest in the investigation of possible criminal activity. It has been recognised that, in an appropriate case, leave to disclose discovered documents might be granted for that purpose: Bailey v Australian Broadcasting Corporation (1995) 1 Qd R 476. In that case, Lee J held that, in determining the weight to be given to the countervailing public interest in the location and prosecution of criminal offenders, the Court would consider the nature of the offence alleged, the cogency of the evidence sought to be adduced in support of it, the authority to which the documents were sought to be disclosed, the manner of the authority's intended use, the possibility of misuse by that authority and any prejudice, actual or potential, which might be occasioned to the party by the disclosure.

19 The plaintiff submitted that leave should be granted in the present case for a number of reasons. It was submitted that the covert recordings were a breach of his privacy for which he has no alternative remedy (than to report the matter to police). He states that he wishes to provide the documents to the police and no further. It was further submitted that referral of the documents to the police "should rightly engender no prejudice to the current proceedings".

20 Finally, it was submitted that:

"But for the discovery process, it is highly unlikely that the relevant authorities would have become aware of the separate recordings. An investigation needs to be undertaken so as to ascertain the full extent of the actions by members of the media in the covert surveillance and secret recordings of persons. Query if the use of tactics of covert recording and surveillance are widespread across the industry. There is great public interest in investigating the possibility of prosecuting either individuals or the defendant corporation for the activity the subject of this action. By the defendant's position in this application, the ABC is complicit in engaging what appears to be illegal conduct by its employees. There is certainly a public policy imperative in facilitating a police investigation into the actions of the defendant".

21 The basis for the application was the contention that the making of the covert recordings and their use in the broadcast reveal the possible commission of criminal offences in Victoria. As already noted, the application is for leave to provide copies of the recordings to police in the State of Victoria, presumably on the basis that the recordings were made there. As indicated by the extracts from the matter complained of set out above, the recording is said to have been made by "some of the relatives in Melbourne". Accordingly, the question is whether there is a basis for suspecting the commission of an offence under the law of Victoria. I note that the matter complained of also refers to footage taken using a hidden camera in a restaurant in Jakarta in 2010 but no issue was raised before me concerning that footage.

22 It appeared to be an assumed premise of the application that the covert recording of the meeting in Melbourne was, in itself, an offence. However, that is by no means clear. Section 6(1) of the Surveillance Devices Act 1999 (Vic) provides (emphasis added):

Subject to subsection (2), a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation.

23 Unlike the equivalent provision under the New South Wales Act, that section does not prohibit a "party" from recording a "private conversation" (cf s 7(1)(b) of the Surveillance Devices Act 2007 (NSW)). It is clear enough from the extracts of the matter complained of set out above that the Melbourne meeting was probably recorded by a person who participated in the meeting. During the course of argument Mr Rasmussen, who appears for the plaintiff, accepted that that appears to be so. Certainly there does not appear to be any basis for suspecting otherwise.

24 Mr Rasmussen submitted, however, that the journalist may have committed an offence in publishing that material. Section 11(1) of the Victorian Act provides:

(1) Subject to subsection (2), a person must not knowingly communicate or publish a record or report of a private conversation or private activity that has been made as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device.

25 It may be accepted that the nature of that offence is serious. In the case of a natural person, it carries a maximum penalty of imprisonment for a term of 2 years or a fine; in the case of a body corporate, a fine.

26 One of the exceptions created by subsection (2) is that the prohibition does not apply:

(b) to a communication or publication that is no

more than is reasonably necessary-

(i) in the public interest; or

(ii) for the protection of the lawful interests

of the person making it; or

27 It would plainly be open to the journalist to contend that the publication of the extracts of the recordings set out above was in the public interest. As already noted, the matter complained of is an investigative piece relating to allegations of organised people smuggling. That is indisputably an important issue in Australian domestic and international affairs. Open discussion of the conduct and comments of persons alleged to be involved in people smuggling would readily be capable of being characterised as being in the public interest, in my view.

28 Whether the extracts published by the defendant in the broadcast were "no more than is reasonably necessary in the public interest" is undoubtedly a more complex question and one which it is neither possible nor appropriate for me to answer. For present purposes, the task is to make an assessment of the cogency of the evidence sought to be adduced in support of the alleged offence so as to inform the task of balancing the competing public interests in upholding the obligation to maintain the privacy of the discovered documents and in investigating the possibility of criminal activity.

29 There is little evidence before me to inform that assessment. All that is known at this stage is that covertly-obtained recordings exist and that extracts of those recordings appear to have been published in the matter complained of. It is difficult to see the plaintiff's contention as to the possible commission of an offence contrary to s 11 as being more than speculative at this stage.

30 In a sense, that is the plaintiff's point. He knows that he has been the subject of covert recordings but does not know their extent and seeks to have his privacy vindicated by investigation by the appropriate authority, which is undoubtedly the Victorian police.

31 As noted on behalf of the ABC, however, there is nothing to prevent the plaintiff from reporting what he already knows to police. He has known of the apparent publication of a covertly-recorded private conversation since the publication of the matter complained of. All that is added by the documents obtained on discovery is the recordings themselves (and, apparently, some related communications). I accept that it would be more convenient, and perhaps more compelling, for the plaintiff to be in a position to provide copies of the recordings to police. However, the allegation could be reported to police without them. Police would undoubtedly have power to obtain copies of the recordings themselves if they suspected on reasonable grounds that there had been a breach of the Act. The information that would be available to police for the purpose of forming that opinion is no less than the information available to me on the present application. In my view, that is a strong consideration against granting the leave sought.

32 Mr Dawson, who appears for the ABC, suggested that the Court might also be concerned at the timing of the present application. He submitted that relief of the kind sought would ordinarily be expected to be sought expeditiously. In circumstances where the application is made at a time when the parties are preparing for the trial, he submitted that referral of the allegations to the police at this stage may have an adverse effect on the preparedness of witnesses to give evidence. That is also speculative, to a degree, but I accept that it is at least some warrant for taking a cautious approach.

33 In all the circumstances, I am not persuaded that the plaintiff should have leave to disclose the discovered documents at this stage. His concern as to the possible commission of an offence is, to a degree, speculative. There is no basis for concluding or even suspecting at this stage that what has been published in the matter complained of is more than is reasonably necessary in the public interest, an issue which of course calls for a difficult evaluative judgment. I accept that the potential prejudice to the ABC of discouraging its witnesses from giving evidence in support of the truth defence is also, to a degree, speculative. But it does seem to me to be a legitimate concern. The plaintiff's concerns as to the invasion of his privacy could have been reported to police much earlier than now and can still be the subject of a report regardless of the outcome of the present application.

34 For those reasons, the application is refused.

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Decision last updated: 24 November 2014