Commonwealth of Australia v Shenzhen Energy Transport Co Ltd
[2016] FCA 1606
•31 August 2016
FEDERAL COURT OF AUSTRALIA
Commonwealth of Australia v Shenzhen Energy Transport Co Ltd [2016] FCA 1606
File number: QUD 178 of 2013 Judge: DOWSETT J Date of judgment: 31 August 2016 Catchwords: PRACTICE AND PROCEDURE – without prejudice material sought to be led at trial – where the matter will be best dealt with if left to the trial Judge Date of hearing: 31 August 2016 Registry: Queensland Division: General Division National Practice Area: Commercial and Corporations Sub-area: Economic Regulator, Competition and Access Category: Catchwords Number of paragraphs: 4 Counsel for the Applicant: Mr M Scott QC and Mr C Young Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr D Keane Solicitor for the Respondent: Thynne & Macartney REASONS FOR JUDGMENT
QUD 178 of 2013 BETWEEN: COMMONWEALTH OF AUSTRALIA
Applicant
AND: SHENZHEN ENERGY TRANSPORT CO LTD
Respondent
DOWSETT J:
I need only provide brief reasons in this matter. The dispute between the parties concerns evidence to be led by the Commonwealth as to the history of negotiations between the parties, concerning the alleged liability of the respondent, some of which is said to have involved “without prejudice” communications. The Commonwealth seeks to lead such evidence in response to an allegation by the respondent that it (the Commonwealth) had failed to limit its loss by earlier remedial action. The Commonwealth seeks to rely on the negotiations as, in part, explaining such delay. Some part of the delay may be attributable to detailed scientific investigations which seem to have been closely associated with the negotiation process.
There appears to be little, if anything, in the “without prejudice” material which is inconsistent with the respondent’s proposed defence of the case. Its primary concern seems to be that knowledge of the fact that negotiations occurred may compromise its position in the eyes of the trial Judge. In the course of argument, it has been suggested that the “without prejudice” material may also have some relevance in explaining the development of the expert scientific evidence and/or vice versa. In my view, it is quite unlikely that a trial Judge would be surprised or prejudiced by the fact that in major litigation, there had been serious attempts to negotiate a settlement. Indeed, we now expect that such negotiations will occur, and that the parties have an obligation to at least try to resolve the matters in dispute.
Although I would like to relieve the trial Judge of the burden of having to resolve this issue, I consider that it cannot be resolved at this stage by reference to the evidence as a whole concerning the course of conduct of negotiations. I would have expected that the parties’ concerns could have been met by an appropriate agreed statement as to the course of negotiations between them, but no such solution has yet been identified.
In the event that I do not decide this issue, it will be for the respondent to raise it again when the affidavits are read at trial. I do not wish to pre-empt the trial Judge’s view, but it might well be that the question of admissibility would not be determined on a blanket basis. It might rather be left to the parties to put relevant parts of the material to witnesses in cross‑examination or re-examination. It may be that the Commonwealth is simply trying to facilitate this process by collecting all of the evidence together in one place. However that course has led to understandable concern on the part of the respondent. In my view, the matter will be best dealt with if left to the trial Judge to be dealt with as the evidence develops. In those circumstances, I decline to make the order sought with respect to the “without prejudice” material. Costs should be reserved to the trial Judge.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 31 July 2017
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