In an ongoing matter regarding an unfair dismissal claim, the applicant sought to submit video recordings made without the knowledge and consent of those recorded. These are video recordings made on the applicant’s mobile phone, which was then placed in his pocket, provide audio only content of dialogue in French, for which an English transcript was required.

The respondent objected to the admission of the recordings on the grounds that the recordings were in breach of the Surveillance Devices Act 1998, that the applicant had deliberately provoked a reaction from another person for the purpose of the recording, and because the recordings omit vital information. The applicant acknowledged that the recordings were made without the knowledge or consent of those recorded but contended that the recordings were permissible under ss 9(1) and 9(2) of the Surveillance Devices Act 1998. 

Commissioner Walkington considered that the law clearly prohibits publication and communications of recordings of conversations made without the knowledge and consent of those being recorded, barring limited circumstances, and that there would need to be a compelling reason to admit the recordings. The applicant submitted that the recordings should be admitted as they show the truth of events. However, after reviewing the content of the recordings, including the audio of a physical altercation, the Commissioner determined that the recordings did not provide any further information than is already provided for in oral and documentary evidence, and did not assist in determining whether the applicant had been provoked into the altercation.

Finding that the recordings were not reasonably necessary to protect the lawful interests of the applicant and that no compelling reason to admit them had been established, Commissioner Walkington ruled that the recordings were not to be admitted.

The decision can be read here.