Category Archives: s. 131

Galafassi v Kelly [2014] NSWCA 190 (13 June 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2014/190.html

CONTRACTS – general contractual principles – repudiation and non-performance – renunciation – where purchasers evinced an intention no longer to be bound by the contract and where purchasers declared that they were unwilling and unable to perform their contractual obligations – continuing representation of financial incapacity – whether purchasers wholly and finally disabled from performing the essential terms of the contract altogether – continuing repudiation by the purchasers – vendor entitled to terminate
CONTRACTS – general contractual principles – repudiation and non-performance – election – whether by commencing proceedings for specific performance and later filing a statement of claim the vendor elected to affirm the contract – whether vendor therefore precluded from terminating based on prior repudiation by the purchasers – vendor not precluded where after the commencement of proceedings the purchaser commits a breach of an essential term or otherwise evinces an intention to no longer be bound by the contract – purchasers’ unretracted declarations of inability and unwillingness to perform remained as a fact in the history of the matter and gave an unmistakeable colour to their continued inactivity and entitled the vendor to terminate
CONTRACTS – general contractual principles – remedies for breach – loss on resale – measure of damages – claim made under cl 9.3.1 of standard contract is one for liquidated damages – availability of special condition interest and land tax for late completion when completion does not occur – damages to be assessed based on the price of the first contract if it had been completed according to its terms – payments contingent upon completion unable to be included as part of the price of the first contract – whether land tax otherwise able to be included as a reasonable expense arising out of the purchaser’s non-compliance with the contract
CONVEYANCING – breach of contract for sale and remedies – vendor’s remedies – whether notice to complete required before vendor can terminate if purchaser has indicated it is unwilling and unable to complete – notice to complete not required where the conduct of the purchaser amounts to repudiation
CONVEYANCING – breach of contract for sale and remedies – vendor’s remedies – resale – duty of vendor – mitigation – extent of vendor’s obligation to act reasonably so as to mitigate loss on resale – whether trial judge erred in his approach to the question of mitigation
EVIDENCE – facts excluded from proof – on grounds of public policy – settlement negotiations and offers – Evidence Act 1995 s 131 – whether communications in emails were made in connection with an attempt to negotiate the settlement of the dispute – whether communications were permissible within the exceptions in Evidence Act 1995 s131(2)(g) or 131(2)(i)

Kong v Kang & Ors [2014] VSC 28 (14 February 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/28.html

PRACTICE & PROCEDURE — Summary Judgment — Test for – ss 61, 63 Civil Procedure Act 2010 — No real prospect of success — Discretion under s 64 Civil Procedure Act 2010 —

Rule 22.02 Supreme Court (General Civil Procedure) Rules 2005.

EVIDENCE — Without prejudice privilege — Whether letter written by solicitor subject to privilege — Whether parties in dispute at time of letter — Evidence Act 2008 (Vic), s 131.

Robinson v Legal Aid Commission of New South Wales [2013] NSWCA 468 (19 December 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/468.html

PROCEDURE – application for leave to appeal from summary dismissal of claim – claim foreclosed by High Court decisions with respect to immunity of witnesses and immunity of legal representatives from suit for conduct in the course of litigation – statement of claim revealing no arguable case – inappropriate vehicle for challenge to judgments of High Court

TORTS – negligence – alleged failure of court appointed expert in proceedings in the Family Court to disclose opinion contained in confidential letter to judge – failure of lawyers acting for children to disclose offer made by mother inconsistent with opinions expressed by expert in report – proceedings dismissed on basis of immunity of expert and lawyers with respect to such claims – matter in fact considered by trial judge in Family Court – Family Court orders subject to appeal to the Full Court of the Family Court – whether claim arguable

Samsung Electronics Co. Limited v Apple Inc. [2013] FCA 1142 (4 November 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/1142.html

PRACTICE AND PROCEDURE – application to rely on evidence filed out of time – nature and complexity of evidence – expansion of case – amendment of pleadings – imminent commencement of hearing – case management principles

EVIDENCE – application to rely on evidence of negotiations – whether evidence is excluded under s 131(1) – whether evidence is admissible under s 131(2) exceptions

EVIDENCE – exclusion of evidence under s 135 – probative value of evidence outweighed by s 135 factors

Edwards v Transport Accident Commission [2013] VSC 557 (18 October 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/557.html

ADMINISTRATIVE LAW — Victorian Civil and Administrative Tribunal —Extension of time for leave to appeal — Discretion — Relevant factors – Inordinate delay (19 months) with knowledge of entitlement to appeal – No real or significant argument on a question of law on appeal – Victorian Civil and Administrative Tribunal Act 1998 s 148 — Transport Accident Act 1998 s 40 — Extension of time refused.

EVIDENCE — without prejudice privilege — whether communications involve an attempt to negotiate a settlement of a dispute — Whether within s 131 of the Evidence Act 2008 (Vic) — Whether exception in s 131 (g) applicable — no privilege applying.

Mainteck Services Pty Limited v Stein Heurtey SA and Stein Heurtey Australia Pty Ltd [2013] NSWSC 1165 (23 August 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1165.html

COSTS – offers of compromise – whether offer of compromise complied with UCPR – whether rejection of Calderbank offer was reasonable – whether court should exercise its general discretion and award indemnity costs – whether court should depart from usual order as to costs – whether costs should be set-off against relevant judgment amount.

Coshott v Burke [2013] FCA 513 (27 May 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/513.html

EVIDENCE – Federal Court Rule 2011 (Cth) 24.20(6) – documents produced under subpoena – objection to inspection by a party – section 131(1) and 131(2)(h) Evidence Act 1995 (Cth) – whether document constitutes a communication in connection with negotiating a settlement – whether document prepared in connection with attempt to negotiate settlement

Cooper v Hobbs [2013] NSWCA 70 (9 April 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/70.html

APPEAL – error in process of fact finding – failure to examine all material relevant to central issue – new trial required

CONTRACT – whether transaction loan to appellant or investment in third party company – whether respondents’ case contrary to compelling inference

CONTRACT – post-contractual conduct – letter from respondents’ solicitor to third party – whether letter contained admissions adverse to respondents’ interests

EVIDENCE – whether primary judge entitled to draw Jones v Dunkel inference from failure to call solicitor as witness – client legal privilege – where respondents gave evidence at trial about solicitor’s advice – whether respondents waived privilege by acting inconsistently with maintenance of privilege

Liu v Fairfax Media Publications Pty Ltd [2012] NSWSC 1352 (9 November 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1352.html

APPEAL – interlocutory decision of Associate Judge – practice and procedure – defamation – production of evidence of settlement negotiations – scope of statutory exclusion in s 131(1) of the Evidence Act – whether restricted to excluding admissions – scope of s 131(5)(b) of the Evidence Act – whether negotiations concern criminal proceedings – whether negotiations affect the right of a person – scope of s 131(2)(i) of the Evidence Act .

Jo Maree Payne v Helen Mary Rowe & Anor [2012] NSWSC 685 [2012] NSWSC 1168 (25 June 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1168.html

REAL PROPERTY – co-ownership – application for appointment of statutory trustees for sale – adjustment of interests – whether non-occupying owner entitled to occupation fee – where there has been no exclusion from the property – consideration of principle in McKay v McKay and Callow v Rupchev – held applicable to “domestic relationship” between brother, sister and mother.
REAL PROPERTY – co-ownership – application for appointment of statutory trustees for sale – adjustment of interests – whether contributions made by associated entity attributable to party.
EQUITY – trusts – resulting trust – presumption of resulting trust based on contributions to purchase price – presumption rebutted where parties have agreed on beneficial interest at time of purchase.
EQUITY – trusts – remedial constructive trust – principle in Baumgartner – application to family relationship – necessity of identifying relevant “joint enterprise” – whether there was “attributable blame” for the failure of the joint enterprise – whether party adequately compensated by a right to contribution – whether respective contributions by parties should be valued according to cost or increase in value of property.
LIMITATION OF ACTIONS – whether claim for imposition of remedial constructive trust subject to limitation period – application of Limitation Act directly or by analogy – distinction between claim for constructive trust and claim for debt or action for money had and received – consideration of when claim for remedial constructive trust accrues.
EVIDENCE – admissibility – inadmissibility of evidence of communications in connection with an attempt to negotiate a settlement of the dispute – whether admissions made in such communications admissible – consideration of exception in s 131(2)(g) – held evidence not admissible simply because it qualifies other evidence adduced in proceedings.
ONUS OF PROOF – general principle – onus is on the defendant if the allegation is not simply a denial of an essential ingredient of the cause of action but a good defence.

Liu v Fairfax Media Publications Pty Ltd [2012] NSWSC 900 (9 July 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/900.html

PRACTICE AND PROCEDURE – claim of “without prejudice” privilege by plaintiff in relation to two distinct groups of documents – substantive action for defamation – UCPR r 21.5 – Evidence Act 1995 ss 131 and 131A – defendants dispute claim of privilege – reference to an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding – claim of public interest immunity – order to produce

BHP Billiton (Olympic Dam) Corporation Pty Ltd v Steuler Industriewerke GmbH (No 3) [2012] VSC 414 (13 September 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/414.html

PRACTICE AND PROCEDURE – Costs – Successful defendant not successful on some factual issues – Whether issue by issue approach appropriate – Calderbank offers – Whether rejection unreasonable – Supreme Court Act 1986, s 24 – Civil Procedure Act 2010, s 49(3)(k) – Supreme Court (General Civil Procedure) Rules 2005, rr 63.04, 63.28 and 63.31.

Wyong Shire Council v Jenbuild [2012] NSWSC 720 (19 June 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/720.html

[COMMERCIAL ARBITRATION] – contracts – whether contracts made between the plaintiff and the first defendant constitute a valid arbitration agreement for the purposes of s 7 of the Commercial Arbitration Act 2010 (NSW) – whether contract ancillary to the principal contracts governed the dispute resolution process.

[ESTOPPEL] – estoppel in pais – convention; estoppel by – whether sufficient detriment that parties are estopped from denying their contractual relationship is governed by a dispute resolution clause.

24. The Council replied by email of 18 January 2010, appointing a meeting for 21 January 2010 at 3pm. That was changed to 1pm on Friday, 22 January 2010. That meeting occurred.

25. In relation to that meeting, Mr Jensen of Jenbuild sent an email on 21 January 2010. Mr Corsaro of Senior Counsel, who appeared for the Council, objected to the tender of that email, relying on s 131 of the Evidence Act 1995 (NSW). He submitted that the email was a communication made between persons in dispute in connection with an attempt to negotiate a settlement of the dispute.

26. I do not think that a document appointing a meeting for a contractual purpose (for example, in compliance with alternative 1 set out in cl 47.2 of the general conditions of contract) is a “communication” of the kind referred to in s 131(1)(a). The purpose of s 131 is, as its heading indicates, to exclude evidence of what is said or communicated in the course of settlement negotiations. That reflects the law’s concern to ensure that parties in dispute should be free to attempt to settle their disputes, without curial, arbitral or other imposed resolution, without being put at risk that what is said in an attempt to negotiate a settlement will be used in evidence against them at a later time. The fact that there was to be a meeting can hardly be of any significance, particularly where that meeting was one (on Jenbuild’s case) required by the contract to be held. Nor did the email, to the extent that I admitted it, give any clue as to what had been said at the previous meeting, or what might be said at the meeting to be held later on the day the email was sent.

27. The email did however proceed further, and make observations as to the Council’s conduct, apparently in the prior settlement meeting, in a way that did seem to me to infringe s 131. Accordingly, I rejected those paragraphs of the email from the tender.
28. However, at a later stage in the course of the hearing, Mr Corsaro then sought to tender those two paragraphs. When he did so, they were admitted. It appears that he sought to do so because he wanted to make the point that Jenbuild had proposed binding expert determination. That submission in turn prompted Mr Roberts of Senior Counsel, who appeared for Jenbuild, to tender a letter of 15 April 2009 from Jenbuild to the Council which had earlier been tendered and rejected on s 131 grounds (and on Mr Corsaro’s application). Mr Roberts renewed the tender of that letter and I admitted it.

29. I have to say that all of this seems to me to be much ado about nothing. However, it will be necessary to return to the submission, as to expert determination, in due course.

Gibbins Investments Pty Ltd v Samuel Savage as Executor of the Estate of John Thomas Savage [2012] FCA 742 (11 July 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/742.html

PRACTICE AND PROCEDURE – “without prejudice” – s 131 Evidence Act 1995 (Cth) – whether applicant can adduce evidence of communications between the parties at the substantive hearing before Jessup J – whether the relevant communications were in respect of a “dispute” – whether genuine attempt to negotiate – whether any of the exceptions in s 131 (2) applied to exclude protection under s 131(1) of the Evidence Act 1995 (Cth)

Trkulja v Yahoo! Inc LLC & Anor (No 2) [2012] VSC 217 (25 May 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/217.html

DEFAMATION – COSTS – Application by successful plaintiff for indemnity costs – Proof that defendants had not made settlement offer – Whether failure of defendants to make settlement offer unreasonable – Whether failure of defendants to accept settlement offer by plaintiff unreasonable – Defamation Act 2005 s 40(2).

Smith v Gould (Ruling No 1) [2012] VSC 210 (18 May 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/210.html

EVIDENCE – admissibility – statements in letters marked ‘without prejudice’ – letters sent between solicitors for persons who are not parties to or witnesses in the proceeding to solicitors for a bank – representations in the communications relevant to issue in the proceeding – no attempt to negotiate settlement of a dispute – letters not excluded by ‘without prejudice’ privilege – whether letters excluded from evidence by the hearsay rule – whether letters are ‘business records’ – whether business record exclusion to hearsay rule permits reception in evidence of the letters – Evidence Act 2008 (Vic), ss 59, 69 and 131.

Denis Cassegrain & Ors v Gerard Cassegrain & Co. Pty Ltd & Ors [2012] NSWSC 403 (27 April 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/403.html

[CORPORATIONS] – whether the transfer of shares of the corporation in two other corporations by directors to wife and daughter respectively amounted to oppression against the minority shareholders – whether notice was given – whether consent or acquiescence – whether shares transferred at undervalue.

[DIRECTORS] – Obligations in circumstances where transfer of corporation’s assets are to be transferred to a family member – whether consent obtained – whether breach of statutory duties and breach of fiduciary duties.

[KNOWING RECEIPT] – where wife/daughter to whom shares transferred aware of circumstances which would indicate the facts to an honest and reasonable person – where admission that transfer was to avoid litigation and/or appointment of provisional liquidator.

[CONVEYANCING] – Conveyancing Act 1919 (NSW) – s 37A – whether alienation of shares to delay hinder or defraud creditors – where admissions that transfer was made to avoid the appointment of a provisional liquidator.

[EVIDENCE] – where plaintiffs did not give evidence – “rule” in Jones v Dunkel – whether necessity to give evidence to prove oppression under s 232 of the Corporations Act 2001 (Cth) – and/or to prove prejudice under s 37A of the Conveyancing Act 1919 (NSW)

Komatsu Marketing Support Australia Pty Ltd v Marsh Pty Ltd [2012] NSWSC 163 (5 March 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/163.html

APPEAL – practice and procedure – discovery – application for further discovery by defendant – appeal from decision of Associate Judge – whether documents subject to ‘without prejudice’ privilege were discoverable – whether s 131(2)(g) of the Evidence Act 2005 was engaged – whether party claiming client legal privilege has acted inconsistently with the maintenance of privilege – defendant’s appeal dismissed

Walters v Scarborough [2011] NSWSC 1380 (15 November 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1380.html

PARTNERSHIP – JOINT VENTURE – whether the parties engaged in partnership or joint venture for the importation and sale of insulation ceiling batts – whether breach of fiduciary obligations on unilateral termination of any such agreement – questions of liability only to be determined in preliminary hearing – HELD – no partnership or joint venture for the importation and sale of batts established – no breach of fiduciary obligations

Offstage Support Association Inc v Time of My Life Pty Ltd (No 2) [2011] FCA 1183 (20 October 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1183.html

COSTS – application for costs order against non-parties and solicitor acting for plaintiff on indemnity basis – substantive application dismissed on various grounds including abuse of process – finding on costs application that substantive application not brought to wind up defendant but for collateral purpose

Held: non-parties and solicitor to pay defendant’s costs of the proceeding on an indemnity basis

Australian Competition & Consumer Commission v Blackon White [ 2002] FCA 1605 (20 December 2002)

http://www.austlii.edu.au/au/cases/cth/FCA/2002/1605.html

COSTS – discretion conferred upon Court by subs 43(2) Federal Court of Australia Act 1976 (Cth) is absolute and unfettered but must be exercised judicially, not arbitrarily or capriciously or upon grounds unconnected with litigation – Court must consider particular facts of the case before it – ordinary rule is that costs follow the event and a successful party will receive his/her costs in the absence of special circumstances justifying some other order – offer to settle – in assessing utility of offer, Court must consider whether offer is constructed in such a way as to constitute a reasonable basis for compromising or settling a proceeding and whether offer is genuine

PRACTICE & PROCEDURE – Court can consider evidence of settlement negotiations where relevant to determining liability for costs – reference to parties in O 23 r 2 Federal Court Rules is a reference to the parties to the litigation, not to the persons on whose behalf the proceedings were instituted

TRADE PRACTICES -proceedings initiated by Australian Competition and Consumer Commission for compensation for loss and damage to named third parties successful

Evidence Act 1995 (Cth), s 131(2)(h)

Peter Lawrence Lewis v Russell William Lamb [2011] NSWSC 873 (17 August 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/873.html

EVIDENCE – admissibility – mediation privilege – whether s 30 of the Civil Procedure Act applies – s 30 only applies to court ordered mediation under Part 4 of Civil Procedure Act – other mediations do not attract mediation privilege of s 30
RESTITUTION – account stated – accounts as admissions of debt – whether statute barred – limitations period runs from time of accrual of underlying debt or cause of action, not time of admission – documents relied upon do not constitute admissions

Atlas Financial International Ltd v Nortbale Pty Ltd; Atlas Financial International Ltd v Nortbale Pty Ltd; Atlas Financial International Ltd v John Palasty [2011] NSWSC 815 (1 August 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/815.html

Oral agreement – Terms of contract – Credit – Assessing documentary evidence – ‘without prejudice’ proposal – section 131(2)(e) Evidence Act 1995 (NSW) – section 131(2)(f) Evidence Act 1995 (NSW) – section 131(2)(g) Evidence Act 1995 (NSW) – Exceptions to ‘without prejudice’ rule – Voir dire

K & M Prodanovski Pty Limited v Calliden Insurance Limited [2011] NSWSC 738 (15 July 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/738.html

Insurance Contracts – Statutory write-off – Section 16B (3) (f) Road Transport (Vehicle Registration) Act 1997 (No 119) – Cl 83C (1) (c) Road Transport (Vehicle Registration) Regulation 2007 – Election – Reasonable time – “Without prejudice” communication – Construction of insurance clause – Hearsay

Australian Competition & Consumer Commission v Black on White [ 2002] FCA 1605 (20 December 2002)

http://www.austlii.edu.au/au/cases/cth/FCA/2002/1605.html

COSTS – discretion conferred upon Court by subs 43(2) Federal Court of Australia Act 1976 (Cth) is absolute and unfettered but must be exercised judicially, not arbitrarily or capriciously or upon grounds unconnected with litigation – Court must consider particular facts of the case before it – ordinary rule is that costs follow the event and a successful party will receive his/her costs in the absence of special circumstances justifying some other order – offer to settle – in assessing utility of offer, Court must consider whether offer is constructed in such a way as to constitute a reasonable basis for compromising or settling a proceeding and whether offer is genuine

PRACTICE & PROCEDURE – Court can consider evidence of settlement negotiations where relevant to determining liability for costs – reference to parties in O 23 r 2 Federal Court Rules is a reference to the parties to the litigation, not to the persons on whose behalf the proceedings were instituted

TRADE PRACTICES -proceedings initiated by Australian Competition and Consumer Commission for compensation for loss and damage to named third parties successful

Evidence Act 1995 (Cth), s 131(2)(h)

Management 3 Group Pty Ltd (in liq) v Lenny’s Commercial Kitchens Pty Ltd (No 3) [2011] FCA 725 (28 June 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/725.html

COSTS – Settlement offer – Deadline for acceptance one day before commencement of trial – Offer included releases of other actual or potential claims extraneous to present proceeding – Whether Calderbank letter – Whether unreasonable for applicants to reject offer – Whether party-party or indemnity costs – Whether security should be released

Nominal Defendant v Livaja [2011] NSWCA 121 (17 May 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/121.html

APPEAL – civil – damages – award – whether judge awarded excessive damages not reflected in the evidence.

PROCEDURE – civil – judgments and orders – whether final judgment had been given before variation made – whether variation could be made even if judgment had not been entered – Uniform Civil Procedure Rules r 36.11(2).

Reynolds v JP Morgan Administrative Services Australia Limited (No 2) [2011] FCA 489 (13 May 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/489.html

PRACTICE AND PROCEDURE – application by non-party to inspect Form 167 and Form 168 filed pursuant to O 81 rr 5(2) and 7(1) of the Federal Court Rules – whether Form 167 is part of an originating process within O 46 r 6(2)(a) – whether Form 167 or Form 168 is a pleading or particulars of a pleading within O 46 r 6(2)(c)

Held: neither Form 167 nor Form 168 was an originating process, pleading or particulars of a pleading within the meaning of O 46 r 6(2)(a) or (c) – non-party has no right to inspect

PRACTICE AND PROCEDURE – whether leave should be granted to non-party to inspect a Form 167 or Form 168 pursuant to O 46 r 6(4) – no evidence led to support application to inspect – Form 167 and Form 168 filed under compulsion in accordance with O 81 rr 5(2) and 7(1) – implied undertaking as to confidentiality of documents produced by compulsion of Court orders or requirements – settlement agreement between parties to keep the terms of the complaint and attachments to the Form 167 confidential – Form 167 and Form 168 not deployed nor played any part in conduct of the proceedings in open court – principle of open justice not engaged – public interest in settlement of litigation

Held: application to inspect each Form 167 and Form 168 refused

Ann Street Mezzanine Pty Ltd v KPMG [2011] FCA 453 (6 May 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/453.html

COSTS – leave to discontinue sought – cross-claim for contribution– supervening event – whether discontinuance constitutes an “abandonment” of cross-claim –consideration of circumstances in which costs order is appropriate – leave to discontinue granted with no order as to costs.

EVIDENCE – affidavit material revealed contents of without prejudice communications – relevant to the issue of costs – s 131(2)(h) of the Evidence Act provides exception where the communication is relevant to determine liability for costs

Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in Liq) (No 6) [2011] FCA 350 (24 March 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/350.html

PROCEDURE AND PRACTICE – subpoena for production – relevance of documents – settlement agreement entered into by third parties in respect of the value of securities similar to securities to be valued

EVIDENCE – whether settlement agreement is a communication or document made “without prejudice” – s 131 of the Evidence Act 1995 (Cth)

Held: subpoena set aside – settlement agreement insufficiently relevant – settlement agreement was not protected by “without prejudice” privilege under s 131 of the Evidence Act 1995 (Cth)

Evidence Act 1995 (Cth) s 131

Commissioner of Police v Sleiman & AVS Group of Companies Pty Ltd & Ors [2011] NSWCA 21 (21 February 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/21.html

ADMINISTRATIVE LAW – revocation of security licence by Commissioner of Police – application for review of decision to the Administrative Decisions Tribunal (“ADT”) – ADT required by s 29(3) of Securities Industries Act 1997 (NSW) (“SI Act”) to ensure that it does not disclose the existence or content of “criminal intelligence” without approval of the Commissioner – Commissioner relied on criminal intelligence – whether ADT bound or empowered to adopt a “special advocate” procedure to represent the review applicant’s interests – whether the Commissioner’s refusal to approve disclosure of the criminal intelligence was amenable to judicial review – whether the Commissioner was bound to consider the review applicant’s request for approval to disclosure – powers and duties of the ADT to afford procedural fairness in face of confidentiality regime.

CONSTITUTIONAL LAW – whether s 29(3) of the SI Act is unconstitutional because it purports to deny the supervisory jurisdiction of the Supreme Court – whether the constitutional issue is premature – application of principles in Kirk [2010] HCA 1; (2010) 239 CLR 531 – difficulties facing applicant for judicial review do not establish a denial of the supervisory jurisdiction

Mundine v Brown (No 7) [2011] NSWSC 170 (18 March 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/170.html

COSTS – defamation – apportionment of costs – Defamation Act 2005 s 40(2) – indemnity costs – where plaintiff succeeds on one only of a number of imputations – whether costs should be apportioned to reflect time taken dealing with issues where plaintiff unsuccessful – whether plaintiff entitled to indemnity costs – whether interests of justice required otherwise where defendants unable to refer to what occurred during mediation – where defendants could have made offers not embargoed by Civil Procedure Act 2005 s 30(4) – defendants to pay plaintiff’s costs on indemnity basis

Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd (No 2) [2011] FCA 276 (25 March 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/276.html

EVIDENCE – Admissibility – whether communication excluded by s 131 of the Evidence Act because made in an attempt to negotiate a settlement – meaning of “negotiate a settlement” – whether an assertion of a person’s rights or position can constitute an attempt to negotiate a settlement – whether exclusion in s 131(2)(g) attracted – purpose of
s 131(2)(g) – s 131(2)(g) only attracted where exclusionary rule in s 131(1) would operate to allow a party which has adduced evidence, to use the exclusionary rule as an instrument for misleading the court.

Evidence Act 1995 (Cth) ss 131, 131(1), 131(1)(a) and (b), 131(2), 131(2)(g) and 131(5)