Bloom, M. v Kuji P/L

[1993] FCA 432

t

3a 1qq3

JUDGMENT No. ..A ....... J ......., .J / !

IN THE FEDERAL COURT OF AUSTRALIA )	No. QG 135 of 1991
OIIEENST,AND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: MELVYN BLOOM and MARGARET WONNE BLOOM

First Applicants

AND :  YVONNE BLOOM

Second Applicant

AND:  BETTY BLOOM !

Third Applicant

AND :  KUJI PTY. LTD.

Respondent

Coram:  Drummond J

Place: Brisbane

Date:  21 June, 1993

motion,
is the
by the respondent to the notice of motion ("the respondent")
to evidence of searches conducted in public registries and of

information obtained from real estate agents with respect to

her assets. The basis of this objection is that this t L

information was only sought out by the applicant on the notice	I
!
of motion ("the applicant") as a result of communications made	I
on behalf of the respondent in the course of an attempt to	! i

mediate the dispute following a court order for the holding of
a mediation conference.

~t is not disputed that all of what was said at the three meetings between the parties and their accountants in the course of mediation was said "without prejudice". I accept that the disclosures with respect to her assets then made on behalf of the respondent were directly relevant to the subject matter of the discussions aimed at settling the litigation. Further, I infer, on the state of the evidence before me, that it is unlikely that the applicant would have made the searches and inquiries that led to the gathering of the evidence now objected to, but for disclosures at the mediation conferences as to the respondent's assets.

Order 72 says nothing about the extent to which what is said at a court ordered mediation conference or what is turned up as a result: of what is there said is immune from disclosure in court, although under 0. 72, r. 7, it is

may give directions which can expressly cover that. The order	envisaged that the judge who orders the mediation conference
that led to the series of conferences here in question appears to have been made on 12 June, 1992. There is nothing to indicate that the question of the extent to which discussions at, or revelations made during the mediation conference or evidence obtained as a result of such discussions or revelations would be immune from later disclosure was adverted to.

The applicant relies on the High Court decision of Field v Commissioner of Railwavs for New South Wales (1957) 99 C.L.R. 285, in particular upon a passage at 291, to justify the reception of the evidence on the ground that it is evidence only of objective facts and that, even though those facts may have been ascertained during the course of without prejudice settlement negotiations, they can still be proved by direct evidence.

Rogers CJ in AWA Ltd v Daniels (1992) 7 A.C.S.R. 463 points out at 467 that the statement in Field at page 291, upon which the applicant places reliance, is strictly obiter and the case is really only authority for the much narrower proposition upon which the evidence there in question was held to be admissible; namely, that the statement made by Field to the railways doctor as to how the accident happened was outside the scope of the without prejudice discussions and was not reasonably incidental to the scope of the negotiations for settlement. See 99 C.L.R. at 293.

The policy considerations that favour the rejection of this evidence and the countemailing ones that favour its acceptance are discussed in the &A case at 467-68. Even though I have found that the applicant only embarked on the inquiries that turned up the evidence now objected to as a result of what was disclosed in the course of "without prejudice" discussions, and that those disclosures were directly relevant to the settlement discussions, I think I must do as Rolfe J did in the case, which Rogers CJ also suggested to be the proper course, and apply the dictum in Field at 291 upon which the applicant relies, notwithstanding the criticism that can be made of the authority of that statement. I therefore propose to admit the evidence objected to on that basis.

I certify that this and the preceding

three pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Drummond.

Associate:

,L U I / L

Date:  21 June, 1993