Can I secretly record someone and then use it in court? NSW Supreme Court Case

Barwick Boitano Lawyers recently represented the successful party in the NSW Supreme Court cases of Rathswohl v Court [2020] NSWSC 1490 and Rathswohl v Court [2021] NSWSC 356 which dealt with the above issues. ( and

Related Subjects

  1. Can I secretly record someone and then use that as evidence in court proceedings?
  2. Can I contest a Will where my inheritance was spent before they died?
  3. Estrangement and contesting a Will.
  4. Power of Attorney abuse.

The late Mr Rathswohl had 3 adult children. Less than a year before he passed away, the late Mr Rathswohl changed his Will preferring his youngest daughter above his other 2 children and left that child his house. The youngest daughter had also been appointed Attorney for her father and transferred almost all the monies in her father’s accounts and Term deposits into her own name. The effect was that our client and his other sister received nothing from their late father’s estate.

Following a contested 4-day hearing, the Judge ordered $500,000.00 be paid to our client from his father’s estate.

The case has achieved some notoriety and has been widely reported in legal circles both in NSW and around Australia.

This is because it involved key evidence in the form of a voice recording using a mobile phone. The recording in this case was done by the other sister of our client recording her Father’s voice on a mobile phone and asking him certain questions about the other siblings; in particular whether the younger daughter was visiting daily and taking care of him.

We successfully argued for the tape-recording to be allowed into evidence, despite strenuous objections by the other side some of which were that the recording was improperly or illegally obtained. NB It is illegal to record conversations in NSW unless consent is provided refer to section 7(1)(b), Surveillance Devices Act 2007 (NSW).

This is the first time the NSW court has been asked to consider the issue of a covert recording in the context of a Family Provision Claim.

The court ultimately accepted our submissions for the voice recording to be included in evidence finding that it was relevant and the recording had been obtained for the protection of the “lawful interests” of the sister. The court found she had not committed any offence in recording the conversation with her father.

The Judge concluded, in these circumstances, the recording was lawful and could be relied upon by us and admissible as evidence.

The mobile phone recording was able to be used to refute the younger daughter’s claims to a greater share of the estate because it showed the claims by the younger daughter that she was the only one caring for her father and the amount of time she was spending with him were not true.

The recording was a crucial part of evidence which supported our client’s case to receive provision from his late father’s estate. It was in effect a “voice from beyond the grave”.

If you have any questions about a Will dispute, Powers of Attorney, or Wills and Estate Law generally, please contact us at Barwick Boitano Lawyers on (02) 9630 0444 or to see how we can help.