The NSW Civil and Administrative Tribunal (NCAT) has recently considered this issue in the case of Mulhearn v Merit Homes Pty Limited  19 November 2015.
In this case, the Home Owners installed a video surveillance device on a neighbour’s property which was directed at their own house and recorded the activities of the Builder. The Home Owners sought to submit stills and footage taken by the surveillance device as evidence in support of their claims against the Builder.
The Builder contended that the stills and the video footage obtained from the surveillance device were illegally and improperly obtained and should not be admitted as evidence.
The NCAT noted that it was not bound by the rules of evidence and that it can inquire and inform itself of any matter it considers to be relevant, subject to the rules of natural justice. However, the NCAT acknowledged that the rules of evidence are useful guidance to consider the admissibility or weight to be given to evidence in NCAT proceedings.
Section 138 of the Evidence Act provides that evidence which is obtained improperly or in contravention of an Australian Law must not be admitted unless the desirability of admission of the evidence outweighs excluding that evidence, having regard to the way in which that evidence was obtained.
In essence, section 138 (which applies to both civil and criminal proceedings) provides for a balancing exercise having regard to the importance or usefulness of the evidence. It provides a discretion to the Court as to the use of the particular evidence.
It is often assumed that simply recording the activities of another person is illegal. That is not always the case. The NSW Surveillance Devices Act 2007 provides in section 8 that:
- A person must not knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves:
(a) Entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle; or
(b) Interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object.
The Home Owners had permission of their neighbour to install the surveillance camera. As a result, there was no infringement of section 8 of the NSW Surveillance Devices Act 2007.
Further, there was no infringement of the Workplace Surveillance Act as the Builder was not an “employee”.
The NCAT noted that the building contract provided for exclusive possession of the site for the builder but expressly made no finding that the surveillance of the builder was in breach of the building contract. This may certainly be an area that builders may wish to consider including in contracts in the future.
The NCAT found no breach of any Australian Law and found that:
“there is, in the balancing exercise of the evidence, benefit to the Tribunal in allowing the admission of the evidence in informing itself … the Tribunal is satisfied that the probative benefit of the admission of the evidence outweighs exclusion of the evidence.”
If you take care to avoid contravention of the NSW Surveillance Devices Act 2007 and the Workplace Surveillance Act, then you may find evidence from a surveillance device can and will be admitted into evidence in an NCAT proceeding. That evidence may be extremely useful to the NCAT in the determination of contested residential building disputes.
For further information or assistance, please contact our Commercial Lawyer, Janine Wilson. Call Baker Love on (02) 4944 3322 or contact us here.