Farac v Pendal Group Limited

In the case of Farac v Pendal Group Limited, the Federal Circuit and Family Court of Australia was called upon to adjudicate a dispute pertaining to alleged adverse action and the admissibility of evidence in settlement negotiations. The applicant, Farac, accused the respondents, Pendal Group Limited, of taking adverse action by withholding certain information during a conference intended to mediate the dispute. The respondents argued that the conduct during this conference was privileged and could not be relied upon due to the settlement negotiation privilege outlined in section 131(1) of the Evidence Act 1995 (Cth).

The court was required to decide whether the settlement negotiation privilege applied to the conference held in the Fair Work Commission (FWC) proceeding, which would render the evidence inadmissible in the current proceedings. Additionally, the court needed to determine whether the respondents should be granted leave to amend their defence due to the lack of particulars provided by the applicant regarding a specific text message.

The court found that the conference indeed had the purpose of mediating or conciliating the dispute, which was sufficient to engage the settlement negotiation privilege under section 131(1) of the Evidence Act. This privilege, when applicable, prevents the admissibility of evidence related to the communications and documents created during settlement negotiations. The court acknowledged the lack of evidence suggesting the Deputy President made a recommendation or expressed an opinion, and despite the applicant's submission that there was no evidence of the conference's purpose, the court accepted that the primary aim was to explore the possibility of a settlement. As a result, the court concluded that the privilege applied, and the respondents' application to strike out certain paragraphs of the statement of claim was granted. Additionally, the respondents were permitted to amend their defence due to the inadequate particularisation provided by the applicant.

In conclusion, the court ordered that paragraphs 60, 61, and 78 of the statement of claim be struck out, and the respondents were granted leave to file an amended defence. The form of the order is subject to the Court’s records, and any minor errors may be reviewed or corrected.